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PETITIONER: ALL SAINTS HIGH SCHOOL, HYDERABAD ETC. ETC.

       Vs.

RESPONDENT: GOVERNMENT OF ANDHRA PRADESH & ORS. ETC.

DATE OF JUDGMENT04/02/1980

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) FAZALALI, SYED MURTAZA KAILASAM, P.S.

CITATION:  1980 AIR 1042            1980 SCR  (2) 924  1980 SCC  (2) 478  CITATOR INFO :  RF         1984 SC1512  (2)  R          1984 SC1757  (2)  R          1987 SC 311  (12,17,19)  RF         1987 SC1210  (4,5,7,8,9,11)  R          1988 SC  37  (16,18)  D          1988 SC 305  (16,17)  RF         1991 SC 101  (263,271)  R          1991 SC2230  (4)

ACT:      Andhra   Pradesh    Recognised   Private    Educational Institutions Control  Act 1975-Sections  3 to 7-Validity of- Provisions  if  violate  constitutional  guarantee  in  Art. 30(1).      Constitution of India 1950-Article 30(1)-Andhra Pradesh Recognised Private  Educational  Institutions  Control  Act, 1975-If offends against Art. 30(1).

HEADNOTE:      The purported  object of  the Andhra Pradesh Recognised Private Educational  Institutions Control  Act 1975  was  to regulate the  service  conditions  of  teachers  in  private educational institutions  and for  ensuring the  security of service of  the teachers.  Section 3(1)  of the Act provides "Subject to  any rule  that may  be made  in this behalf, no teacher employed  in  any  private  educational  institution shall be dismissed, removed or reduced in rank nor shall his appointment be  otherwise terminated  except with  the prior approval of  the competent  authority". The  proviso to this sub-section states  that if  any educational management etc. contravenes the  provisions of this sub-section, the teacher affected shall  be deemed to be in service. Where a proposal to dismiss etc. any teacher is communicated to the competent authority, according  to sub-section  (2) of  this  section, that authority  shall, if  satisfied that there are adequate and reasonable  grounds  for  such  proposal,  approve  such dismissal, removal  or reduction  in rank  or termination of appointment. Clause  (a) of  sub-section (3) of this section states that  no teacher  employed in any private educational institution shall be placed under suspension, except when an enquiry  into  the  gross  misconduct  of  such  teacher  is

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contemplated. Clause  (b) provides  that no  such suspension shall remain  in force  for more than a period of two months from the  date of  suspension and  if such  inquiry  is  not completed with  that period,  such  teacher  shall,  without prejudice to  the inquiry, be deemed to have been r restored as teacher.  The proviso states that the competent authority may, for  reasons to be recorded in writing, extend the said period of  two months for a further period not exceeding two months,  if  in  his  opinion,  the  inquiry  could  not  be completed within  the said  period of two months for reasons directly attributable  to each  teacher. Section  4 gives  a right of  appeal to teachers employed in private educational institutions against orders of punishment imposed on them.      Section  5  deals  with  special  provisions  regarding appeal in certain past disciplinary cases.      Section 6  which deals  with retrenchment  of  teachers provides that  where retrenchment of any teacher is rendered necessary consequent on any order of the Government relating to education  or course  of instructions  or  to  any  other matter, such  retrenchment may  be effected  with the  prior approval of the competent authority.      Section 7 provides for payment of pay and allowances to teachers in the prescribed manner. 925      The   appellants    who   were   minority   educational institutions  established  by    members  of  the  Christian community  filed   writ  petitions  before  the  High  Court impugning various  provisions of  the Act as being violative of  the   guarantee  contained   in  Article  30(1)  of  the Constitution by  permitting or  compelling interference with the internal  administration of  their  private  educational institutions. In  particular they  challenged the provisions of sections  3 to  7 of  the Act  on the  ground  that  they deprive them  of their  right to  administer the  affairs of minority institutions by vesting the ultimate administrative control in an outside authority. The contentions having been rejected by  the High  Court they  filed appeals  by special leave. ^      HELD s  Permajority-(Chandrachud, C.J.,  and Fazal Ali, J.-Kailasam,J., dissenting.):      Sub-sections (1)  and (2)  of section 3 are invalid and cannot be applied to minority institutions.      Per majority-(Chandrachud,  C.J., and Kailasam J.-Fazal Ali, J. dissenting).      Clauses (a)  and (b)  of section  3(3)  do  not  offend against Art. 30(1) and are valid. By the  Court: Sections  4 & 5 are unconstitutional as being violative of Art. 30(1). Per majority  (Chandrachud, C.J.,  and Kailasam J-Fazal Ali, J, dissenting).      Section 6 is valid. By the Court: Section 7 is valid. Per Chandrachud, C.J.      Section 3(1) and 3(2) are unconstitutional in so far as they are  made applicable  to minority institutions since in practice   these   provisions   are   bound   to   interfere substantially with their right to administer institutions of their choice. [937E]      1. (a)  Section 3(1)  gives an unqualified mandate that no teacher  shall be  dismissed etc.  except with  the prior approval of  the competent  authority.  Under  the  proviso, contravention of the section results in a total invalidation of the  proposed action.  If the  section is contravened the teacher shall be deemed to be in service. Secondly, the sub-

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section applies  not only  to cases  in which the teacher is punished by an order of dismissal etc. but to cases in which the  appointment   is  otherwise  terminated.  An  order  of termination simpliciter is also required to be submitted for the prior  approval of  the competent  authority.  All  this shows that  the true  object of  the sub-section is not that which  one  could  liberally  assume  by  reading  down  the section. [935H; 936AB]      (b) In  the absence  of any rules furnishing guidelines on the  subject,  it  is  difficult  to  predicate  that  in practice the  operation of the section would be limited to a certain class  of cases  only. The  absence of  rules on the subject makes  the  unguided  discretion  of  the  competent authority the sole arbiter of the question as to which cases would fall  within the  section and which would fall outside it. [936 E-F]      (c) Section  3(2), under  the guise  on conferring  the power of  approval, confers  upon the competent authority an appellate power of great magnitude. That authority is made a judge both of facts and on law by the conferment upon 926 it of  a power  to test  the validity of the proposal on the vastly subjective touchstone of adequacy and reasonableness. The  sub-section  leaves  no  scope  for  reading  down  the provision of  section 3(1).  The two  sub-sections  together confer upon  the competent  authority,  in  the  absence  of proper rules, a wide and untrammeled discretion to interfere with the proposed order whenever in its opinion the order is based on  grounds which  do not appear to it either adequate or reasonable. [936G-H; 937A]      (d) Though  the section  provides  that  the  competent authority "shall"  approve  the  proposed  order  if  it  is satisfied that  it  is  based  on  adequate  and  reasonable grounds, its  plain and  necessary implication  is  that  it shall not  approve the  proposal unless it is satisfied. The conferment of  such a  power on  an outside  authority,  the exercise of  which is  made to  depend purely  on subjective consideration arising  out of  twin formula  of adequacy and reasonableness, cannot but constitute an infringement of the right guaranteed by article 30(1). [937C]      State of  Kerala v. Very. Rev. Mother Provincial [1971] 1 SCR  734, D.A.V.  College v. State of Punjab [1971] Suppl. S.C.R. 688  and Ahmedabad  st. Xaviers  College  Society  v. State of Gujarat [1975] 1 S.C.R. 173; referred to.      2. (a)  Section 3(3)(a)  and 3(3)(b)  of the Act do not offend against  the provisions  of  article  30(1)  and  are valid. [939B-C]      (b) Clause  (a) contains but an elementary guarantee of freedom from arbitrariness to the teachers. The provision is regulatory in  character since  it  neither  denies  to  the management the  right to  proceed against  an erring teacher nor does  it place an unreasonable restraint on its power to do so.  It assumes  the right of the management to suspend a teacher but regulates that right by directing that a teacher shall not be suspended unless an inquiry into his conduct is contemplated and  unless the  inquiry is  in  respect  of  a charge of  gross misconduct.  These restraints  which bear a reasonable nexus  with attainment  of educational excellence cannot be  considered to  be violative of the right given by article 30(1).  The limitation  of the  period of suspension initially to  two months,  which can in appropriate cases be extended by  another two  months, as  provided in clause (b) and its  proviso, partakes  of the  same  character  as  the provisions contained  in clause  (a). A provision founded so patently on  plain reason  is difficult  to construe  as  an

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invasion of  the right  to administer  an institution unless that right  carried with it the right to maladminister. [938 G-H]      3. Section  4 is unconstitutional as being violative of article 30(1)  of the constitution. The section confers upon the government  the power to provide by rules that an appeal might lie  to such  authority or  officer as  it designates, regardless of  the standing  or status  of that authority or officer. Secondly an appeal is provided for on all questions of fact  and law,  thereby throwing open the order passed by the management to the unguided scrutiny and unlimited review of the  appellate authority,  which would  mean that, in the exercise of the appellate power, the prescribed authority or officer  can  substitute  his  own  view  for  that  of  the management even  in cases  in which two views are reasonably possible. Lastly,  while a  right of  appeal is given to the aggrieved  teacher   against  the   order  passed   by   the management, no  corresponding  right  is  conferred  on  the management  against   the  order  passed  by  the  competent authority under section 3(2) of the Act. In the absence of a provision for  appeal against  the order  of  the  competent autho- 927 rity  refusing   to  approve  the  action  proposed  by  the management,  the   management  is   pleased  in   a  gravely disadvantageous position  vis-a-vis the teacher who is given the right of appeal by section 4. [939D-H]      Section 5 must fall with section 4. [940B]      4. Section  6 is valid. The section aims at affording a minimal guarantee  of security  of  tenure  to  teachers  by eschewing the  passing of  mala-fide orders  in the  garb of retrenchment. It  is implicit  in  the  provisions  of  this section that  the limited jurisdiction which it confers upon the competent  authority is  to examine  whether,  in  cases where the retrenchment is stated to have become necessary by reason of  an order passed by the Government, it has in fact so become  necessary. The conferment of a guided and limited power on  the competent authority for the purpose of finding out whether,  in fact  the retrenchment has become necessary by reason  of a  Governmental  order  cannot  constitute  an interference with  the right  of administration conferred by article 30(1). [940D-F]      Section 7  is regulatory in its character and is valid. [940H] Per Fazal Ali, J.      On an  exhaustive analysis  of the  authorities of this Court on  the  various  aspects  of  the  fundamental  right enshrined in article 30(1) of the Constitution the following propositions of law emerge:-           (i)  Article 30(1) enshrines the fundamental right                of the  minority institutions  to manage  and                administer  their  educational  institutions.                [967H]           (ii) Although, the right conferred by this article                is absolute, unfettered and unconditional, it                does not  mean that  it gives  a licence  for                maladministration so  as to defeat the avowed                object of  the  article,  namely  to  advance                excellence and  perfection in  the  field  of                education. [968B]           (iii)While  the   State  or  any  other  statutory                authority has  no right to interfere with the                internal  administration   of  the   minority                institution,   it   could   take   regulatory                measures  to   promote  the   efficiency  and

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              excellence of educational standards and issue                guidelines for  ensuring the  security of the                services of  the teachers and other employees                of the institution. [968C]           (iv) Under  the   garb  of   adopting   regulatory                measures, the  State or  any other  authority                cannot destroy the administrative autonomy of                the  institution   or  interfere   with   the                management of the institution so as to render                the right of administration of the management                of the institution illusory. [968E]           (v)  By its  very nature  article 30  implies that                where  an   affiliation  is  asked  for,  the                university cannot  refuse  the  same  without                sufficient  reason  or  try  to  impose  such                conditions as  would completely  destroy  the                autonomous administration  of the educational                institution. [968G]           (vi) Induction of  an  outside  authority  in  the                governing body of the minority institution to                conduct the  affairs of the institution would                be completely  destructive of the fundamental                right  under  article  30(1),  where  a  high                authority like the Vice-Chancellor or his 928                nominee is  appointed in  the administration,                such authorities  should not  be thrust so as                to have  a controlling  voice in  the  matter                overshadowing  the  powers  of  the  managing                committee. [968H]           (vii)It  is   open  to   the  Government   or  the                University to  frame  rules  and  regulations                governing  the   conditions  of   service  of                teachers in  order to  secure their tenure of                service and  to appoint  a high  authority to                see that  the rules  are not  violated or the                members of  the staff  are not victimised. In                such cases  the purpose  is not  to interfere                with the  autonomy  of  the  institution  but                merely  to   improve   the   excellence   and                efficiency  of   education.   Even   so,   an                authority  should  not  be  given  a  blanket                uncanalised and arbitrary powers. [969E-F]           (viii)Where a minority institution affiliated to a                university is  enjoined to  adopt courses  of                study of  the syllabi  or the nature of books                prescribed and  the holding of examination to                test the  ability  of  the  students  of  the                institution, it  does  not  follow  that  the                freedom contained  in article  30(1)  of  the                Constitution is violated. [970A]           (ix) Where  a   high  authority  is  appointed  to                exercise  vigilance   on  the   work  of  the                teachers and to ensure security of tenure for                them  the  authority  must  be  given  proper                guidelines. Before  coming  to  any  decision                which  may   be  binding   on  the   managing                committee the  head of the institution or the                senior member  of the managing committee must                be associated  and they  should be allowed to                have a say in the matter. [970C]      Kerala Education Bill, 1957, [1957] SCR 995; Sidhajbhai Sabhai and  Ors. v.  State of  Bombay and  Anr. [1963] 3 SCR 837; Rev. Father W. Proost & Ors. v. State of Bihar [1969] 2 SCR 73;  State of Kerala etc. v. Veru Rev. Mother Provincial

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etc. [1971]  1 SCR  734; D.A.V.  College etc.  v.  State  of Punjab &  Ors. [1971]  Suppl. SCR  688 and The Ahmedabad St. Xaviers College  Society &  Anr. etc.  v. State  of  Gujarat [1975] 1 SCR 173; referred to.      1. (a)  Section 3  in its  entirety is  ultra-vires  as being violative  of article 30(1) and is wholly inapplicable to the appellants who are minority institutions. [975B]      (b) The  proviso enjoins  that any contravention of the provisions would not affect the teachers who would be deemed to be  in service. It is manifest that in the absence of any rules the  proviso would  have no application and even if it applied  it   would  amount  to  a  serious  inroad  on  the fundamental right of the minority institutions to administer or manage their own affairs. [971H]      (c) Sub-section  2 of  section 3 is unconstitutional as being violative  of article  30(1). It suffers from the vice of excessive  delegation of  powers and  confers  undefined, absolute and arbitrary powers to grant or to refuse sanction to any  action taken  by the  managing committee  and almost reduces the institution to a helpless position. [973B-C]      (d) If  the State  wanted to regulate the conditions of service of  the teachers,  it should have taken care to make proper rules giving sufficient 929 powers to  the management  in the  manner in which it was to act. Induction  of an outside authority into the institution and making  his decision  final was  a blatant  interference with the  autonomy of  the institution.  The words "adequate and reasonable"  are too  vague and  do  not  lay  down  any objective standard  to judge  the discretion to be exercised by the  competent authority  whose order would be binding on the institution. [972F-G]      (e) While  section 4  gives a  right of  appeal to  the aggrieved teacher  no such  right  has  been  given  to  the management to  file an  appeal  against  the  order  of  the competent authority  if it  refuses to grant sanction to the order of  the Managing  Committee of  the  institution.  The competent authority is only the District Educational Officer who is  not a  very high  authority such  as a  Director  of Public instruction  or Vice-Chancellor  of a  University. No time limit  has been  fixed by  the statute within which the competent authority  is to give its approval. The cumulative effect of clause (a) and (b) of section 3(3) and the proviso is to  interfere with  the internal  administration  of  the minority institutions  and curb  the power of suspension. It deprives  the   institution  of  the  right  of  taking  any disciplinary action against a teacher. The adjective "gross" before the term "misconduct in clause (a) destroys the power of suspension  which the minority institution possesses. The provision contained  in clause (b) of section 3(3) providing that no  suspension shall  remain in  force for  a period of more than  two months  from the date of suspension and if no inquiry is  completed within  this period  the teacher would have to  be reinstated,  gives an  unqualified  right  to  a teacher in  the matter of suspension which even a government servant does not enjoy. [973A, 974D-E]      2. Section 4 is ultra-vires and is violative of article 30 of  the Constitution.  It does not contain any guidelines as to  the manner in which the power could be exercised, nor does it contain any provision which may entitle the minority institution to  be heard  by the  appellate  authority.  The conferment  of   an  absolute  and  unguided  power  on  the appellate authority  would amount  to a  direct interference with the  right enshrined  in article  30(1) and  makes  the minority institution a powerless body. [976B; 975G]

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    3.  If  section  4  is  inapplicable  to  the  minority institution Section 5 also follows the same fate. [976C]      4.  Section   6  which  contains  an  un-canalised  and unguided power  suffers from the same vice as in the case of section 3. The words "administer educational institutions of their choice"  in  article  30  clearly  indicate  that  the institution has an absolute right to select teachers, retain them or  retrench them  at its  sweet will  according to the norms prescribed  by the  institution or  by  the  religious order which has founded the institution. [976H]      5. Section  7 is  an innocuous  provision and is valid. [977C]      6. Sections  8, 9,  12 and  13 are  inapplicable to the minority institutions. [977D, 978B]      7. Section 16 suffers from a serious defect namely that the provision  regarding appeal  to the  appellate authority was  valid   then  it  completely  bars  the  right  of  the management to  file a  suit to challenge the validity of the order of  the appellant.  To this  extent the  section makes serious inroad  on the  fundamental right  of  the  minority institutions   and   is   inapplicable   to   the   minority institutions. [978G]      Section 17 is inapplicable. [978F] 930 Per Kailasam, J.      1. A  reading of the various decisions rendered by this Court  on   the  interpretation  of  article  30(1)  of  the Constitution  makes   it  clear  that  while  the  right  to establish and  administer a  minority institution  cannot be interfered with,  restrictions by way of regulations for the purpose of  maintaining the  educational  standards  of  the institution can  be validly  imposed.  For  maintaining  the educational standards  of the  institution as a whole, it is necessary to  ensure that it is properly staffed. Conditions imposing the  minimum qualifications of the staff, their pay and other benefits, their service conditions, the imposition of punishment  will all be covered and regulations of such a nature are  valid. In  the case of institutions that receive aid it  is the  duty of the government who grants aid to see that the  funds are  properly utilised.  Regulations can  be made by the government for ensuring the proper conditions of service of  the teachers  and for securing fair procedure in the matter  of disciplinary action against them. Prescribing uniformity in  the conditions  of  service  and  conduct  of teachers in  all  non-governmental  colleges  would  promote harmony, avoid  frustration and,  therefore, is permissible. Rules prescribed  by the  university or  other authority may require that no member of the teaching or non-teaching staff of a  recognised or  approved institution shall be dismissed etc., except  after a  proper enquiry.  If  the  regulations require  the   approval  of   the  competent  authority  for safeguarding the rights of the teachers and for securing the procedure there can be no objection. Such authority can also interfere with the decision of the private institutions when the  punishment   awarded  is   malafide  or   by   way   of victimisation or for similar causes. [989B; 993D-G]      Kerala Education  Bill [1959] SCR, 995, Rev. Sidhajbhai Sabhai &  Ors. [1963]  3 SCR  837, Rev. Father W. Proost and Ors. v.  State of  Bihar &  Ors. [1969]  2 SCR  73, State of Kerala v.  Very. Rev.  Mother Provincial  [1971] 1  SCR 734, D.A.V. College  etc. v. State of Punjab & Ors. [1971] Suppl. S.C.R. 688  and Ahmedabad  St. Xaviers  College Society  and Anr. etc.  v. State of Gujarat [1975] 1 S.C.R. 173, referred to.      2.  It  is  not  only  reasonable  but  proper  that  a

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restricted meaning  is given  to the power of prior approval conferred on  the competent authority under section 3 of the Act. It  is a  well established  principle of interpretation that the  statement of objects and reasons could be referred to for  the limited  purpose of  ascertaining the conditions prevalent at the time which actuated the sponsor of the Bill to introduce the same and the extent of urgency and the evil sought to  be remedied. Clearly the legislation was intended to regulate  the service  conditions of teachers employed in the private educational institutions and for the security of service of the teachers. The power contained in section 3(1) and 3(2)  is restricted to regulating the service conditions of teachers  and for  ensuring their  security  of  service. [1001C; 998A-B]      3. While interpreting a provision of law the Court will presume that  the legislation was intended to be intra vires and also  reasonable. The  section ought  to be  interpreted consistent  with   the  presumption  which  imputes  to  the legislature an intention of limiting the direct operation of its enactment  to the  extent that is permissible. A reading down of  a provision  of a  statute puts  into operation the principle that so far as it is reasonably possible to do so, the legislation  should be  construed as  being  within  its power. It has the principle effect 931 that where  an Act  is expressed  in language of generality, which makes  it capable,  if read  literally, of applying to matters beyond  the relevant  legislative powers,  the Court will construe  it in  a more  limited sense so as to keep it within power. [998E-F]      The State of West Bengal v. Subhodh Gopal Bose and Ors. [1954] SCR  587, Att. Genl. v. HRH Prince Earnest Augstas of Hanover, [1957]  A.C. 436,  Keshavananda Bharti  v. State of Kerala [1973] Suppl. S.C.R. 1, 101, Towns v. Bigner 245 U.S. 413-62 L.ed. 372, 376 and Kedar Nath Singh v. State of Bihar [1962] 2 Suppl. SCR 769; referred to.      In the  instant case  it  must  be  presumed  that  the legislature was  conscious of  the limitations  of the power which the  competent  authority  can  have  in  granting  or withholding approval in the case of disciplinary proceedings conducted  by   private  institutions.  The  object  of  the legislation in this case was very different from other cases in which the legislation was aimed at depriving the minority institutions of all their powers. Its only aim is to provide security of  service. There are sufficient guidelines in the objects and reasons as well as in the preamble. [1001 B-C]      4. (a)  The contention  that section  3(1) and (2) lack guidelines and  have conferred  a blanket  power  cannot  be accepted. Section  3(1) and  (2) must  be read together. The words "adequate and reasonable" should be given a restricted meaning so as to validate the provisions of the section. The approval of  an order  contemplated by  sub-section (2) will have to  be  read  with  sub-section  (1).  Sub-section  (2) required the  competent authority to approve such a proposal if it  is satisfied  that there  are adequate and reasonable grounds  for   such  proposal.   The  words   "adequate  and reasonable" furnish  sufficient  guidelines.  The  competent authority can interfere if there are no materials at all for sustaining the  order of punishment or when on the materials found the  charge is  completely baseless  and preserve. The word "adequate" will have to be understood as being confined to such  examination of  the proposal. The word "reasonable" would indicate  that the power of the competent authority is confined to  the power of an authority to interfere with the enquiry and  the conclusions  arrived  at  by  the  domestic

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tribunal. It  cannot be  understood as  conferring  absolute power to  interfere with  the enquiry  by the  tribunal as a Court of appeal on merits. [1002E; 1001G-H]      (b) The  plea that the "competent authority" may be any petty officer  cannot be  upheld because  it is  defined  in section 2(1)  to mean  "any  authority,  officer  or  person authorised  by  notification  performing  the  functions  of competent  authority".   The  officers  of  the  educational department  who   are  incharge  of  the  administration  of educational institutions  in the area cannot be called petty officers. [1002H]      (c) Clauses  (a) and  (b) of  sub-section (3) cannot be said to  interfere with  the right  of administration of the private institutions.  The two  clauses  are  regulatory  in nature and are intended to safeguard the teachers from being suspended for  unduly long  periods without  there being  an enquiry into "gross mis-conduct." [1003C]      (d) Sub-section  (4) of  section 3  which  states  that every  teacher   placed  under   suspension  shall  be  paid subsistence allowance at such rates as may be 932 prescribed during  the period  of his  suspension is  purely regulatory  in   nature  and,   therefore,  unobjectionable. [1003D]      5. Section  4 is  invalid. The  vice contained  in this section is  that the  right of appeal which is confined only to the teachers is not available to institutions. [1003F]      6. Section  5 which  confers  power  on  the  competent authority to hear appeals in certain past disciplinary cases will have to fall along with section 4. [1003G]      7. Section  6 is  also regulatory  in  nature  and  its validity cannot be questioned. [1003H]      8. Section  7 is  regulatory in  nature and is intended for securing regular payment to the teachers. [1004A]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal Nos. 1280, 1279, 1327-1330 of 1978 and 35 of 1979.      Appeals by  special leave  from the  Judgment and Order dated 2-8-1978  of the  Andhra Pradesh  High Court  in  Writ Petition Nos.  718, 5505,  3618, 5506,  5518,  of  1975  and 604/78 and 4814/1975.      L. N.  Sinha, K.  Srinivasa Murthy,  Naunit Lal  and M. Panduranga for  the Appellants  in CA Nos. 1279, 1280, 1327- 1330/78.      S. N.  Kackar, Sol. Genl., Venkatarao and G. N. Rao for R. 1  in CA 1280, RR 1-3 in CAs. 1327 & 1329 and RR 1 & 2 in 1328 & 1330.      H. S.  Gururaja Rao  and S. Markendaya for RR 2-3 in CA 1280 and R. 4 in CA 1279.      K. M. K. Nair for R. 4 in CA 1329      S. Balakrishnan for R. 8 in CA 1329      G. Narasimhulu for R. 3 in CA 1330      B. Parthasarthi for the Appellant in CA 35/79.      B. Kanta Rao for the RR 4-5 in CA 35/79.      The following Judgments were delivered      CHANDRACHUD, C.J.-Article  30(1)  of  the  Constitution provides:      All minorities,  whether based on religion or language,      shall  have  the  right  to  establish  and  administer      educational institutions of their choice. The question  which  arises  in  these  appeals  is  whether certain provisions  of the Andhra Pradesh Recognised Private

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Educational Institutions  Control Act,  11 of  1975,  offend against the fundamental right 933 conferred on  minorities by  Art. 30 (1). The appellants are unquestionably  minority  educational  institutions,  having been established by members of the Christian community.      My learned  Brothers, Murtaza  Fazal Ali  and Kailasam, have examined the authorities bearing on the question before us. The  reasons which  impelled  me  to  write  a  separate judgment are  my inability  to agree wholly with the various observations made  by Justice Fazal Ali and with some of the propositions which  he has  formulated as  emerging from the decisions referred to by him, as also with the conclusion to which Justice  Kailasam has  come.  I  do  not  consider  it necessary to  examine all  the decisions  of this  Court  in which  Art.   30(1)  has   received  a   full  and   careful consideration. These  decisions are  reported in  Re  Kerala Education Bill  1957, Rev.  Sidhajbhai Sabhai  v.  State  of Bombay Rev.  Father W. Proost v. The State of Bihar State of Kerala v.  Very Rev.  Mother Provincial  D. A. V. College v. State of  Punjab   The Ahmedabad St. Xaviers College Society v. State  of Gujarat Gandhi Faizeam College Shahajahanpur v. University of  Agra and  Lilly Kurian  v. Sr.  Lewina Almost each succeeding  judgment has  considered and  analysed  the previous judgment  or judgments. I regard the matter arising before us  as well-settled,  especially  after  the  9-Judge Bench decision  in Ahmedabad   St.  Xaviers College  Society (supra) and the recent judgment of the Constitution Bench in Lilly Kurian,  All that  we have  to do  in this  case is to apply the law laid down in these decisions.      These decisions  show  that  while  the  right  of  the religious  and   linguistic  minorities   to  establish  and administer educational  institutions of  their choice cannot be interfered  with, restrictions  by way of regulations for the  purpose   of   ensuring   educational   standards   and maintaining  the   excellence   thereof   can   be   validly prescribed. For  maintaining  educational  standards  of  an institution,  it   is  necessary   to  ensure   that  it  is competently staffed.  Conditions of  service which prescribe minimum qualifications  for the  staff,  their  pay  scales. their entitlement  to other  benefits  of  service  and  the laying down of safeguards which must be observed before they are removed  or dismissed from service or their services are terminated are all permissible measures 934 of a  regulatory character.  As observed by Das C.J., in Re: Kerala Education  Bill, (supra)  "Right to administer cannot obviously include  the right  to mal-administer", and in the words of  Shah J., in Rev. Sidhajbhai, (supra) "The right is subject  to  reasonable  restrictions  in  the  interest  of efficiency of  instruction, discipline,  health, sanitation, morality, public order and the like". Hidayatullah C.J. said in Very  Rev. Mother  Provincial (supra)  that "Standards of education are  not a  part of  management as such", that the "minority institutions cannot be permitted to fall below the standard of excellence expected of educational institutions" and that  "the right  of the  State to  regulate  education, educational standards  and  the  allied  matters  cannot  be denied". Justice  Jaganmohan Reddy,  in  D.  A.  V.  College (supra) reiterated  while upholding  clause 18  of the  Guru Nanak  University,   Amritsar  Act,  1961  that  regulations governing recruitment  and service conditions of teachers of minority institutions,  which are  made in  order to  ensure their efficiency  and excellence do not offend against their right  to   administer  educational  institutions  of  their

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choice.      In the  case of institutions that receive State aid, it is the  duty and  obligation of  the Government which grants aid to  see that  public funds  are  usefully  and  properly expended.  If   the  expenditure  incurred  for  paying  the emoluments of  the staff  is subsidised or financed from out of State funds, it becomes the duty of the State to see that no one  who does  not possess  the minimum qualifications is appointed on  the staff, the pay and other emoluments of the staff are  guaranteed and  their service conditions secured. Minority  institutions   which  receive   State  aid  cannot complain of  conditions subject to which the aid is granted, so long  as such  conditions do not amount to discrimination against them  on the  ground of  language or religion and so long as  the aid  is not made to depend upon the performance or observance  of conditions  which amount to deprivation of the right  guaranteed by  article 30(1).  There is  also  no doubt that  minority institutions  cannot  be  discriminated against in the matter of granting State aid.      No institution, minority or majority, has a fundamental right to  recognition by  the State  or affiliation  to  the University,  but   since  recognition  and  affiliation  are indispensable for  an effective and fruitful exercise of the fundamental right  of minorities to establish and administer educational institutions  of their choice, they are entitled to recognition  and affiliation  if they agree to accept and comply with  regulatory  measures  which  are  relevant  for granting recognition  and affiliation, which are directed to ensuring educational excellence of 935 the   institution   concerned   and   which,   largely   and substantially, leave  unimpaired the right of administration in regard to internal affairs of the institution.      The impugned  Act, by  reason of section 1 (3), applies to all private educational institutions, whether or not they are established by minorities. The appellants’ contention is that several  provisions of  the Act  violate the  guarantee contained  in   Art.  30(1)   by  permitting  or  compelling interference with  the internal  administration  of  private educational  institutions  established  by  minorities.  The appellants are  particularly aggrieved  by the provisions of sections 3  to  7  of  the  Act,  the  validity  whereof  in challenged on the ground that they deprive the appellants of their  right   to  administer   the  affairs   of   minority institutions by  vesting the ultimate administrative control in an  outside  authority.  These  contentions  having  been rejected by the High Court of Andhra Pradesh, the appellants have filed these appeals by special leave.      Section 3  (1) of the Act provides that, subject to any rule that may be made in this behalf, no teacher employed in any private  educational  institution  shall  be  dismissed, removed or  reduced in  rank nor  shall his  appointment  be otherwise terminated,  except with the prior approval of the competent authority. The proviso to the section says that if any  educational   institution  contravenes   the  aforesaid provision, the  teacher affected  by the contravention shall be deemed  to be  in service.  Section 3  (2) requires  that where the  proposal to  dismiss, remove or reduce in rank or otherwise terminate  the appointment of any teacher employed in any  private educational  institution is  communicated to the competent  authority, that  authority shall  approve the proposal, if  it is  satisfied that  there are  adequate and reasonable grounds for the proposal.      For  appreciating   their  true   meaning  and  effect, sections 3  (1) and  3 (2)  have to  be read  together.  The

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requirement of  prior approval of the competent authority to an order  of dismissal,  removal, etc.  may not by itself be violative of article 30 (1) because it may still be possible to say, on a reasonable construction of the provision laying down  that   requirement,  that  its  object  is  to  ensure compliance with  the principles  of natural  justice or  the elimination of  mala fides or victimisation of teachers. But I find  it difficult  to read  down section  3 (1)  so as to limit its  operation to  these or similar considerations. In the first  place, the  section does  not  itself  limit  its operation in  that manner;  on the  contrary,  it  gives  an unqualified mandate  that no  teacher  shall  be  dismissed, removed, etc. except with 936 the prior  approval of  the competent  authority. Under  the proviso contravention  of the  section results  in  a  total invalidation of  the proposed  action.  If  the  section  is contravened the  teacher shall  be deemed  to be in service. Secondly, section 3 (1) not only applies to cases in which a teacher is,  what is  generally termed  as ’punished’, by an order of  dismissal, removal  or reduction  in rank,  but it also applies  to cases  in which an appointment is otherwise terminated.  An   order  of  termination  simpliciter  which involves no stigma or aspersion and which does not result in any evil  consequences is  also required to be submitted for the prior  approval of the competent authority. The argument that  the  principles  of  natural  justice  have  not  been complied  with   or  the   argument  of   mala   fides   and victimisation has  seldom any  relevance if the services are terminated in  accordance with  the terms  of a  contract by which the tenure of the employment is limited to a specified period. This  shows that the true object of section 3 (1) is not that  which one  could liberally  assume by reading down the section.      Section 3  (1) is subject to any rules that may be made in behalf  of  the  matter  covered  by  it.  If  the  State Government were  to frame  rules governing the matter, there would have been some tangible circumstances or situations in relation to  which the  practical operation  of section 3(1) could have  been limited.  But in  the absence  of any rules furnishing guidelines  on the  subject, it  is difficult  to predicate that,  in practice,  the operation  of the section will be  limited to  a certain  class  of  cases  only.  The absence  of   rules  on   the  subject  makes  the  unguided discretion of  the competent  authority the  sole arbiter of the question as to which cases would fall within the section and which would fall outside it.      Any doubt  as to the width of the area in which section 3(1) operates  and is intended to operate, is removed by the provision contained in section 3 (2), by virtue of which the competent authority  "shall" approve the proposal, "if it is satisfied that  there are  adequate and  reasonable grounds" for  the  proposal.  This  provision,  under  the  guise  of conferring the power of approval, confers upon the competent authority  an   appellate  power  of  great  magnitude.  The competent authority is made by that provision the sole judge of the  propriety of the proposed order since it is for that authority to  see whether  there are  reasonable grounds for the proposal.  The authority  is indeed made a judge both of facts and  law by  the conferment upon it of a power to test the validity of the proposal on the vastly subjective touch- stone of  adequacy and  reasonableness. Section 3 (2), in my opinion, leaves  no scope for reading down the provisions of section 937

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3  (1).  The  two  sub-sections  together  confer  upon  the competent authority,  in the absence of proper rules, a wide and untrammeled  discretion to  interfere with  the proposed order, whenever,  in its  opinion, the  order, is  based  on grounds which  do  not  appear  to  it  either  adequate  or reasonable.      The form  in which  Section 3  (2) is couched is apt to mislead by creating an impression that its real object is to cast an  obligation on  the competent authority to approve a proposal  under   certain  conditions.  Though  the  section provides that  the competent  authority "shall"  approve the proposed order  if it  is satisfied  that  it  is  based  on adequate and  reasonable grounds,  its plain  and  necessary implication is that it shall not approve the proposal unless it is  so satisfied.  The confernment  of such a power on an outside authority,  the exercise  of which is made to depend on purely  subjective considerations arising out of the twin formula  of   adequacy  and   reasonableness,   cannot   but constitute an  infringement of  the right guaranteed by Art. 30 (1).      I find it difficult to save sections 3 (1) and 3 (2) by reading them down in the light of the objects and reasons of the impugned Act. The object of the Act and the reasons that led to  its  passing  are  laudable  but  the  Act,  in  its application to  minority institutions, has to take care that it does  not violate the fundamental right of the minorities under Art.  30(1). Sections  3(1) and 3(2) are in my opinion unconstitutional in  so far  as they  are made applicable to minority institutions  since, in  practice, these provisions are bound  to interfere  substantially with  their right  to administer institutions  of their choice. Similar provisions were held  to be  void in Very Rev. Mother Provincial, D. A. V. College and Lilly Kurian. (supra) There is no distinction in principle between those provisions and the ones contained in sections 3 (1) and 3 (2).      For these reasons, I am in agreement with Brother Fazal Ali that Sections 3 (1) and 3 (2) of the impugned Act cannot be applied  to minority  institutions, since  to do  so will offend against Article 30 (1).      Section 3  (3) (a) provides that no teacher employed in any private  educational institution  shall be  placed under suspension except  when an inquiry into the gross misconduct of such  teacher is contemplated. Section 3 (3) (b) provides that no  such suspension shall remain in force for more than a period  of two  months and if the inquiry is not completed within that  period the  teacher shall, without prejudice to the inquiry, be deemed to have been restored as 938 a teacher.  The proviso  to the sub-section confers upon the competent authority the power, for reasons to be recorded in writing, to  extend the  period of  two months for a further period not  exceeding two  months if,  in its  opinion,  the inquiry could  not be completed within the initial period of two months for reasons directly attributable to the teacher.      With respect, I find it difficult to agree with Brother Fazal Ali  that these provisions are violative of article 30 (1). The question which one has to ask oneself is whether in the normal course of affairs, these provisions are likely to interfere with  the freedom  of minorities to administer and manage educational  institutions  of  their  choice.  It  is undoubtedly  true   that  no   educational  institution  can function efficiently  and effectively  unless  the  teachers observe  at  least  the  commonly  accepted  norms  of  good behaviour. Indisciplined  teachers can hardly be expected to impress upon  the students the value of discipline, which is

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a sine  qua non  of educational  excellence. They  can cause incalculable harm  not only to the cause of education but to the society  at large  by generating a wrong sense of values in the  minds of  young  and  impressionable  students.  But discipline is  not to be equated with dictatorial methods in the  treatment   of  teachers.  The  institutional  code  of discipline must  therefore conform  to acceptable  norms  of fairness and cannot be arbitrary or fanciful. I do not think that in the name of discipline and in the purported exercise of the  fundamental right  of administration and management, any educational  institution can be given the right to ’hire and fire’ its teachers. After all, though the management may be  left  free  to  evolve  administrative  policies  of  an institution, educational  instruction  has  to  be  imparted through the  instrumentality of  the teachers;  and  unless, they have a constant assurance of justice, security and fair play it  will be  impossible for  them to give of their best which alone  can enable  the institution to attain the ideal of educational excellence. Section 3 (3) (a) contains but an elementary guarantee  of freedom  from arbitrariness  to the teachers. The  provision is regulatory in character since it neither denies  to  the  management  the  right  to  proceed against an  erring teacher  nor  indeed  does  it  place  an unreasonable restraint on its power to do so. It assumes the right of  the management  to suspend a teacher but regulates that  right  by  directing  that  a  teacher  shall  not  be suspended unless an inquiry into his conduct is contemplated and unless  the inquiry  is in  respect of a charge of gross misconduct. Fortunately,  suspension of  teachers is not the order of the day, for which reason I do not think that these restraints which bear a reasonable nexus with the attainment of educational  excellence can be considered to be violative of the right given 939 by Art.  30 (1).  The limitation of the period of suspension initially to  two months,  which can in appropriate cases be extended  by  another  two  months,  partakes  of  the  same character as  the provision  contained in section 3 (3) (a). In the  generality of  cases, a  domestic inquiry  against a teacher ought  to be completed within a period of two months or say,  within another  two months.  A provision founded so patently on  plain reason  is difficult  to construe  as  an invasion of  the right  to administer an institution, unless that right  carried with  it the  right to  maladminister. I therefore agree  with Brother  Kailasam that  sections 3 (3) (a) and  3 (3)  (b) of  the Act  do not  offend against  the provisions of Art. 30 (1) and are valid.      Section 4 of the Act provides that any teacher employed in a  private educational  institution (a) who is dismissed, removed or reduced in rank or whose appointment is otherwise terminated; or  (b) whose  pay or allowances or any of whose conditions of  service are  altered or  interpreted  to  his disadvantage, may  prefer an  appeal to  such  authority  or officer as  may be  prescribed. This provision in my opinion is too  broadly worded  to be sustained on the touchstone of the right  conferred upon  the minorities by Art. 30 (1). In the first place, the section confers upon the Government the power to  provide by  rules that  an appeal  may lie to such authority or  officer as  it designates,  regardless of  the standing or  status of  that authority or officer. Secondly, the appeal  is evidently  provided for  on all  questions of fact and  law, thereby throwing open the order passed by the management to  the unguided scrutiny and unlimited review of the appellate  authority. It  would be  doing no violence to the language of the section to interpret it to mean that, in

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the  exercise   of  the   appellate  power,  the  prescribed authority or officer can substitute his own view for that of the management,  even  in  cases  in  which  two  views  are reasonably possible.  Lastly, it  is strange, and perhaps an oversight may account for the lapse, that whereas a right of appeal is  given to  the aggrieved  teacher against an order passed  by   the  management,   no  corresponding  right  is conferred on  the management  against an order passed by the competent authority  under section  3 (2) of the Act. It may be recalled  that by  section  3  (1),  no  teacher  can  be dismissed, removed,  etc. except  with the prior approval of the competent  authority. Section 3 (2) confers power on the competent authority  to refuse  to accord  its  approval  if there  are   no  adequate  and  reasonable  ground  for  the proposal. In  the absence  of the  provision for  an  appeal against the  order of  the competent  authority refusing  to approve  the   action  proposed   by  the   management,  the management is  placed in  a gravely disadvantageous position vis-a-vis 940 the teacher  who is  given the right of appeal by section 4. By reason  of these  infirmities I agree with the conclusion of my learned Brothers that section 4 of the impugned Act is unconstitutional, as being violative of article 30 (1).      Section 5 is consequential upon section 4 and must fall with it.      Section 6  provides that  where any  retrenchment of  a teacher is rendered necessary consequent on any order of the Government relating to education or course of instruction or to any  other matter, such retrenchment may be effected with the prior approval of the competent authority. With respect, I find  myself unable to share the view of Brother Fazal Ali that retrenchment of teachers is a purely domestic affair of minority  institutions   and  that   the  decisions  of  the management in  the matter  of retrenchment  of  teachers  is beyond the scope of statutory interference by reason of Art. 30 (1).  Section 6  aims at affording a minimal guarantee of security of  tenure to  teachers by eschewing the passing of mala fide  orders in  the garb of retrenchment. As I look at the section,  I consider it to be implicit in its provisions that the  limited jurisdiction  which it  confers  upon  the competent authority  is to  examine whether,  in cases where the retrenchment  it stated  to  have  become  necessary  by reason of  an order passed by the Government, it has in fact so become necessary. It is a matter of common knowledge that Governmental orders  relating to  courses of instruction are used as a pretence for terminating the services of teachers. The  conferment  of  a  guided  and  limited  power  on  the competent authority  for the purpose of finding out whether, in fact,  a retrenchment has become necessary by reason of a Government order, cannot constitute an interference with the right of  administration conferred by Art. 30 (1). Section 6 is therefore  valid. I  would, however,  like to add that in the interests  of equal  justice, the  legislature ought  to provide for  an appeal  against the  orders  passed  by  the competent  authority  under  section  6.  If  and  when  the provision for  an appeal  is made,  care must  be  taken  to ensure that  the appeal  lies to  an officer  not below  the prescribed rank.      Section 7  provides that  the pay  and allowances  of a teacher shall  be paid  on or before such day of a month, in such manner  and by  or through  such authority,  officer or person, as  may be  prescribed.  I  agree  with  my  learned Brothers that  this provision is regulatory in character and is, therefore, valid.

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    These are  all the  sections the  validity of which was questioned in the Writ Petitions filed in the High Court. It is therefore not neces- 941 sary to consider whether the other provisions of the Act are valid or not.      I  concur  in  the  final  order  proposed  by  Brother Kailasam that  we need not go into the merits of each of the Writ Petitions  filed in  the High  Court.  Learned  counsel appearing for  the schools  sought the  decision of the High Court on  the constitutional  issue  only.  He  specifically asked the  High Court not to decide each case on its merits. That may,  accordingly, be  left to the High Court to decide in the  light of  the majority  opinion rendered  by us.  We have, by  a majority,  held that  sections 3  (3) (a), 3 (3) (b), 6  and 7 are valid while sections 3 (1), 3 (2), 4 and 5 are invalid  in  their  application  to  minority  education institutions. It  must follow  that such institutions cannot be proceeded  against for  violation of provisions which are not applicable to them.      In conclusion,  all the Civil Appeals before us will go back to  the High Court of Andhra Pradesh for final disposal on merits  in the  light of  our decision.  There will be no order as to costs.      FAZAL ALI,  J.: This  batch of civil appeals by special leave is directed against the judgment of the Andhra Pradesh High Court  before whom  the appellants filed writ petitions under  Article  226  of  the  Constitution  challenging  the constitutional validity  of several  sections of  the Andhra Pradesh Recognised  Private Educational Institutions Control Act,  1975,   hereinafter  referred  to  as  the  Act  which contained 21  sections in five Chapters and was brought into force with  effect from 5th October, 1974. This Act was also applicable to  19 Educational  Institutions situated  in the State of  Andhra Pradesh and the appellants being admittedly minority educational  institutions  within  the  meaning  of Article 30  of the Constitution of India have challenged the vires various  sections of  the Act  which we shall indicate later.      Some of  the  appeals  have  been  filed  by  Christian Schools established  by Roman  Catholic Church  and some  by Christian Colleges established by the Christian community:      The main  grounds of  challenge are that the provisions of the  Act directly  interfere with the internal management of  the   institutions  and   has  completely   curbed   the constitutional freedom  which has been guaranteed to them by Article  30(1)  of  the  Constitution  of  India  and  being violative of  Article 30(1)  of the  Constitution are  ultra vires and  therefore, wholly  inapplicable to the appellants institutions.      It is now well settled by a long course of decisions of this Court  that our Constitution which seeks to establish a secular State contains 942 sufficient checks and balances, safeguards and guarantees to protect the  rights of  the minorities, the establishment of educational institutions being one of them. Article 46 which contains the constitutional directive to promote educational and economic interests of the weaker sections runs thus:-           "46.  Promotion   of  educational   and   economic      interests of  Scheduled Castes,  Scheduled  Tribes  and      other weaker sections:           The State  shall promote  with  special  care  the      educational  and   economic  interests  of  the  weaker      sections of  the people,  and, in  particular,  of  the

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    Scheduled Castes  and the  Scheduled Tribes,  and shall      protect them  from social  injustice and  all forms  of      exploitation. Article 30(1) confers a fundamental rights on the minorities to establish  and  administer  educational  institutions  of their choice.  Article 30(2)  enjoins on  the State  that in granting aid  to the  educational institutions  it shall not discriminate against  any  educational  institution  on  the ground that  it is  under  the  management  of  a  minority, whether based on religion or language. Thus, it would appear that  Article  30(2)  extends  the  guarantee  contained  in Article 30(1)  even in  the matter  of receiving  aid by the educational  institution   established   by   the   minority community. While adverting to this aspect of the matter this Court  in  Re:  Kerala  Education  Bill,  1957  observed  as follows:-           "Nevertheless, in  determining the scope and ambit      of fundamental  rights relied on by or on behalf of any      person or  body the court may not entirely ignore these      directive principles  of State policy laid down in Part      IV of  the Constitution  but should adopt the principle      of harmonious  construction and  should attempt to give      effect to both as much as possible".      Another important  factor which  has to  be noticed  is that the  terms in  which Article 30 is couched are absolute and unconditional  as compared to Article 19 which is hedged in by  reasonable restrictions  which may  be imposed by the State in  public interest.  Thus, in  a way  the fundamental right contained  in Article  30 is  more effective and wider than the  fundamental rights  contained in  Part III  of the Constitution. This, however, does not mean that the State is completely deprived  of  even  the  right  to  regulate  the working of  the minority  institutions and  to make rules in order to improve the standards 943 of education  imparted therein  so as  to achieve excellence and  efficiency   in  the  educational  standards  of  these institutions. Regulatory  measures cannot  in any  sense  be regarded   as    placing   restrictions   or   curbing   the administrative autonomy  of the  institutions concerned. But care must  be taken  by the  State to  see that  in  passing regulatory measures  it does  not transcend its limits so as to  interfere   with  the  internal  administration  of  the management of  the institutions  concerned so  as to violate the spirit  and policy  of Article  30. The  question of the scope and  ambit of  Article 30 of the Constitution of India was very  exhaustively considered  as far back as in 1959 in Re: Kerala  Education Bill (Supra). This case arose when the President of  India called  for the  opinion of  the Supreme Court on  a Reference  being made to it under Article 143(1) of the  Constitution of  India. The Reference was heard by 7 Judges of  this Court  out of  which  6  of  them  excepting Venkatarama Aiyar,  J. gave  a unanimous  opinion  regarding various clauses  of the  Bill. The  provisions of the Kerala Education Bill  are not  pari materia with the provisions of the Act  with which  we are concerned in this case, but this Court while delivering its opinion has laid down a number of salutary principles  which throw  a flood  of light  on  the scope and  interpretation of  Article 30 of the Constitution of India.      I would,  therefore, like  to extract certain important passages from  the opinion of the Court which dealt with the scope and  application of Article 30. I would, however, like to mention  that some  of the  principles laid  down by this Court in the aforesaid case may not apply to the present day

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conditions because  there have  been numerous changes in all aspects of  life  and  even  the  concept  of  equality  has undergone a  revolutionary change. But the observations made by this  Court would  afford a  very valuable  guideline  to determine the  question in  controversy in the present case. While indicating  the width  of the  right conferred  on the minority institutions  by Article  30(1) this  Court pointed out that  the right  to administer does not envisage a right to indulge  in mal-administration.  In this connection, Das, C.J. speaking for the majority observed as follows:-           "The right  to administer cannot obviously include      the right  to maladminister. The minority cannot surely      ask  for   aid  or   recognition  for   an  educational      institution run  by  them  in  unhealthy  surroundings,      without  any   competent   teachers,   possessing   any      semblance of qualification, and which does not maintain      even 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 ad- 944      minister 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". Again, while  sounding a  note of  caution to the Government that no  step should  be taken  by it  which amounts  to the institution surrendering  its personality merely because the institution is  receiving aid from the State, said the Chief Justice thus:-           "No educational institution can in actual practice      be carried  on without  aid from  the State and if they      will not get it unless they surrender their rights they      will,  by   compulsion  of  financial  necessities,  be      compelled  to   give  up  their  rights  under  Article      30(1)..................           The  State   Legislatures  cannot,  it  is  clear,      disregard  or   override  those  provisions  merely  by      employing indirect  methods of  achieving  exactly  the      same result.  Even the Legislature cannot do indirectly      what it certainly cannot do directly".      Considering the provisions of the Kerala Education Bill particularly Clauses  6, 7,  9, 10,  11, 12,  14 and  15 the Court held that although these provisions constitute serious inroads on  the right  of administration  of the institution and appear perilously near violating that right, yet in view of the  peculiar facts of that case and having regard to the fact that  clauses 9,  11  and  12  were  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  the Court  as at present advised may treat these clauses as permissible regulations. These observations were based  on the  peculiar circumstances of the provisions of the  Education Bill  and the objects which they sought to sub-serve may  not be  applicable to  the present case where the circumstances  are quite  different  because  admittedly most of the appellant institutions are not receiving any aid from the Government. Even so, this Court found it impossible to support  clauses 14  and 15  which according to them were totally destructive  of the  rights  guaranteed  by  Article 30(1).      In this connection, the Court observed as follows:-           "But  considering   that  those   provisions   are      applicable to all educational institutions and that the

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    impugned parts  of clauses 9, 11 and 12 are designed to      give protection and 945      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 those  clauses 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.   We,   however,   find   it      impossible to  support cls.  14 and 15 of the said Bill      as mere  regulations. The  provisions of  those clauses      may be  totally destructive of the rights under Article      30(1)".      The Court  had made it very clear that the observations extracted above  applied to  those categories of educational institutions which  had sought not only recognition but also aid from  the State.  In the  instant case. however, most of the  appellant   institutions  have   been  established   by mustering their  own resources  and have  not been receiving substantial aid  from the  Government. Similarly,  the Court made it clear that although the minority institutions had no fundamental right  to recognition  by the  State yet to deny recognition on  terms which may amount to complete surrender of the management of the institution to the Government would be violative  of Article  30(1) of the Constitution. In this connection, Das, C.J. Observed as follows:-           "There is,  no doubt, no such thing as fundamental      right  to   recognition  by   the  State  but  to  deny      recognition to the educational institutions except upon      terms   tantamount    to   the   surrender   of   their      Constitutional   right   of   administration   of   the      educational institutions  of their  choice is  in truth      and in  effect to  deprive them  of their  rights under      Article 30(1).  We repeat that the legislative power is      subject eto  the fundamental rights and the legislature      cannot indirectly  take away or abridge the fundamental      rights which it could not do directly and yet that will      be the result if the said Bill containing any offending      clause becomes law"      Again dwelling on the special character of the minority institutions Das, C.J. speaking for the Court observed thus:           "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." 946      Describing  the   nature  of   the  fundamental  rights enshrined in Article 30 the Court observed as follows:-           "There  can   be  no  manner  of  doubt  that  our      Constitution has guaranteed certain cherished rights of      the minorities  concerning their  language, culture and      religion. These concessions must have been made to them      for good  and valid  reasons.  Article  45,  no  doubt,      requires the  State to  provide for free and compulsory      education for  all children,  but there  is nothing  to      prevent  the   State  from   discharging  that   solemn      obligation through  Government and  aided  schools  and      Article 45  does not  require  that  obligation  to  be      discharged at  the expense of the minority communities.

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    So long  as the Constitution stands as it is and is not      altered, it  is, we conceive, the duty of this Court to      uphold the  fundamental rights  and thereby  honour our      sacred obligation  to the  minority communities who are      of our own."      Similarly, Venkatarama  Aiyer, J. who gave a dissenting opinion agreed  however with  the scope  of  Article  30  as expounded by  the majority  opinion. In this connection, the learned Judge observed as follows:-           "Article 30(1)  belongs to  the same  category  as      Arts.  25,  26  and  29,  and  confers  on  minorities,      religious or  linguistic, the  right to  establish  and      maintain their own educational institutions without any      interference or  hindrance from  the  State.  The  true      intention of that Article is to equip minorities with a      shield whereby  they could  defend  themselves  against      attacks by majorities, religious or linguistic, and not      to arm  them with a sword whereby they could compel the      majorities to grant concessions."      Various shades  and aspects  of the  matter were  again considered by  this Court  in the  case of  Rev.  Sidhajbhai Sabhai and  Ors. v.  State of  Bombay & Anr. In this case it appears that  the  Government  of  Bombay  issued  an  order directing the  concerned institution which was controlled by the United  Church of  Northern India  to reserve 80% of the seats in  the training  colleges run  by the institution for teachers  in   non-Government   training   colleges.   These teachers,  were   to  be   nominated  by   the   Government. Accordingly, the Educational Inspector ordered the Principal of the  Training  College  not  to  admit  without  specific permission of  the Education  Department private students in excess of  20% of  the total  strength in  each  class.  The institution took 947 serious  exception  to  this  order  of  the  Government  as amounting to  A direct interference in the management of the affairs of  the institution.  The institution  filed a  writ petition under  Article 32  of the  Constitution before this Court which  was heard by 6 Judges who after considering the facts of  the case and the nature of the order passed by the Government observed as follows:-           "Unlike Article  19, the fundamental freedom under      clause (1)  of Article  30, is absolute in terms; it is      not made  subject to any reasonable restrictions of the      nature the  fundamental freedoms  enunciated in Article      19 may  be subjected  to. All minorities, linguistic or      religious have  by Article  30(1) an  absolute right to      establish and  administer educational  institutions  of      their choice;  and any law or executive direction which      seeks to  infringe the  substance of  that right  under      Article 30(l)  would to  that extent be void. This, how      ever, is not to say that it is not open to the State to      impose regulations  upon the  exercise of  this right..      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  institution,  in  matters      educational". This Court  refused to uphold the order of the Government on the ground,  that this  was only  a regulatory  measure. The Court pointed  out that  the regulation in order to be valid must satisfy  a dual  test, namely,  (1) that  it should  be reasonable, (2)  that it  should be purely regulative of the

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educational character  of the  institution so as to make the institution  an  effective  vehicle  of  education  for  the minority community. This Court observed thus :-           "The right  established  by  Article  30(1)  is  a      fundamental right  declared in  terms absolute.  Unlike      the fundamental  freedoms guaranteed  by Article 19, it      is  not  subject  to  reasonable  restrictions.  It  is      intended to  be a  real right for the protection of the      minorities in  the matter  of setting up of educational      institutions of their own choice. The right is intended      to be  effective and  is not  to be whittled down by so      called regulative  measures conceived  in the  interest      not of the minority educational institution, but of the      public or  the nation  as a whole. If every order which      while maintaining  the formal  character of  a minority      institution destroys  the power  of  administration  is      held justifiable 948      because it  is in  the  public  or  national  interest,      though  not   in  its   interest  as   an   educational      institution, the right guaranteed by Article 30(1) will      be put  a "teasing  illusion", a  promise of unreality.      Regulations which  may lawfully  be imposed  either  be      legislative or  executive  action  as  a  condition  of      receiving grant  or of  recognition must be directed to      making the institution while retaining its character as      a minority  institution  effective  as  an  educational      institution. Such  regulation must satisfy a dual test-      the test  of reasonableness,  and the  test that  it is      regulative  of   the  educational   character  of   the      institution and  is conducive to making the institution      an effective  vehicle of  education  for  the  minority      community  or other persons who resort to it."      On an examination of the provisions of the impugned Act in the  instant case,  it is  manifest that the Act contains provisions harsher  and more offensive than the order passed by the  Government of  Bombay in  the  Bombay  case  (supra) referred to above.      In the  case of  Rev. Father  W. Proost  & Ors.  v. The State of  Bihar and  Ors. Hidayathullah,  C. J. speaking for the Court observed as follows:-           "In our opinion, the width of Article 30(1) cannot      be cut down by introducing in it consideration on which      Article 29(1) is based. The latter article is a general      protection is  given to  minorities to  conserve  their      language, script  or culture.  The former  is a special      right   to    minorities   to   establish   educational      institutions  of  their  choice.  This  choice  is  not      limited to  institution seeking  to conserve  language,      script or  culture and  the choice is not taken away if      the   minority    community   having   established   an      educational  institution  of  its  choice  also  admits      members of  other communities.  That is  a circumstance      irrelevant for the application of Article 30 (1) since,      no  such  limitation  is  expressed  and  none  can  be      implied. The  two Article  create two  separate rights,      although it  is possible  that they may meet in a given      case."      The extent  to which the State could interfere with the administrative autonomy of the minority institutions in view of  the   guarantee  contained   in  Article  30(1)  of  the Constitution was  again fully discussed and explained in the case of  State of Kerala etc. v. Very Rev. Mother Provincial etc. In this case the Court was considering the 949

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constitutionality  of   certain  provisions  of  the  Kerala University Act,  1969  which  was  passed  with  a  view  to reorganise  the   University  of   Kerala  and  establish  a teaching, residential  and affiliating University of private Colleges including  institutions  founded  by  the  minority community. The Court was concerned only with some of the pro visions of  the aforesaid  Act and struck down the offending provisions as  amounting to  a blatant interference with the rights guaranteed  to the  minorities under Article 30(1) of the Constitution. Before analysing the facts of that case, I might indicate  that in  the instant case it is not disputed by  the   parties  that  all  the  appellants  are  minority institutions and  had a  governing body  of their own. It is also not disputed that apart from the Christians others were also admitted  to the  institutions and  received education. Even some  of the  members  of  the  staff  were  also  non- Christians. In  the background of these facts. I have to see how far the decision of this Court referred to above applies to the present appeals. While explaining the scope and ambit of management  or administration Hidayatullah, C.J. speaking for the Court observe as follows:-           "Administration means  ’management of the affairs’      of the  institution. This  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 interests of the      community in  general and the institution in particular      will be  best served. No part of this management can be      taken away  and  vested  in  another  body  without  an      encroachment upon the guaranteed right.           There is,  however, an exception to this and it is      that the  standards of  education are  not  a  part  of      management as  such. These  standards concern  the body      politic and  are  dictated  by  considerations  of  the      advancement of  the country  and its people. Therefore,      if universities establish syllabi for examinations they      must be  followed, subject  however to special subjects      which the  institutions may  seek to  teach, and  to  a      certain  extent   the  State   may  also  regulate  the      conditions of employment of teachers and the health and      hygiene of  students.  Such  regulations  do  not  bear      directly upon  management as  such  although  they  may      indirectly affect  it. Yet  the right  of the  State to      regulate  education,   educational  standards  and  the      allied  matters   cannot  be   denied.   The   minority      institutions  cannot  be  allowed  to  fall  below  the      standards  of   excellence  expected   of   educational      institutions, of under the guise of exclusive right of-      management, to decline to 950      follow the  general pattern.  While the management must      be left  to them, they may be compelled to keep in step      with others". These observations,  therefore,  establish  three  important tests which would determine whether or not the action of the Government amounts  to interference  with the  management of the institution  (1) In  order that  the management  of  the institution is  free from outside control, the founders must be permitted to mould the institution as they think fit; (2) no part  of the  management  could  be  taken  away  by  the Government  and   vested  in   another   body   without   an encroachment upon  the guaranteed right enshrined in Article 30(1) of the Constitution; (3) There is however an exception to. this  general rule  which is  that the Government or the University can adopt regulatory measures in order to improve

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the educational standards which concern the body politic and are dictated  by considerations  of the  advancement of  the country and its people, so that the managing institution may not under  the guise  of  autonomy  or  exclusive  right  of management  be   allowed  to  fall  below  the  standard  of excellence that is required of educational institutions.      Having laid  down these  tests the  Court proceeded  to analyse some of the offending sections of the Kerala Act and came to  the  conclusion  that  according  to  some  of  the sections the  governing body set up by education society was to consist  of 11  members and  the Managing  Council of  21 members. 11  members of  the government  body were  (i)  the principal of  the private  college, (ii)  the manager of the private college,  (iii) a person nominated by the University in accordance  with the  provisions in that behalf contained in the statute (iv) a person nominated by the Government and (v) a  person elected  in accordance with the procedure laid down on  the Act.  Sub-section (2)  had the effect of making these  bodies   into  bodies   corporated  having  perpetual succession and  a common seal. Sub-section (6) laid down the powers and  functions of  the governing body, the removal of members thereof  and the  procedure to  be followed  by  it, including the delegation of its powers to persons prescribed by the Statutes. Sub-section (7) laid down that the decision in either  of the  two bodies shall be taken at the meetings on the  basis of  simple majority of the members present and voting. Thus,  if these  provisions were  to  apply  to  the minority institutions,  it is  manifest that it would amount to a  direct interference  in the internal management of the institution  and   would  tantamount   to  the   institution surrendering its  educational personality.  In other  words, the governing body appointed by the University would replace the governing  body of  the founders of the institutions and thus the founders 951 would have no right to administer the institution in any way they  like.  A  Adverting  to  this  aspect  of  the  matter Hidayatullah, C.J. Observed as follows :-           "These sections  were partly  declared ultra vires      of Article  30(1) by  the High  Court as they took away      from the  founders the  right to  administer their  own      institution. It  is obvious  that after the election of      the governing body or the managing council the founders      or  even   the   community   has   no   hand   in   the      administration. The  two bodies  are  vested  with  the      complete  administration  of  the  institutions.  These      bodies have  a  legal  personality  distinct  from  the      educational agency  or the  corporate management.  They      are not  answer- able  to the founders in the matter of      administration           The Constitution  contemplates the  administration      to be in the hands of the particular community. However      desirable it might be to associate nominated members of      the kind  mentioned in ss. 48 and 49 with other members      ,  of  the  governing  body  or  the  managing  council      nominees, it  is obvious  that their  voice must play a      considerable part  in management  Situations  might  be      conceived when they may have a preponderating voice. In      any  event,  the  administration  goes  to  a  distinct      corporate body  which is  in no  way answerable  to the      educational agency  or the  corporate  management.  The      founders have  no say  in the  selection of the members      nominated by  them. It is, therefore, clear that by the      force of  sub sections  (2), (4) and (6) of sections 45      and 49  the  minority  community  loses  the  right  to

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    administer the  institution it has founded. Sub-section      (S) also  compels the  governing body  or the  managing      council to follow the mandates of the University in the      administration of the institution."      Their Lordships then proceeded to consider the vires of sub-sections (2)  and (4)  of section 56 which laid down the conditions of  service of  the teachers of private colleges. Sub-section (2)  provided  that  no  teacher  of  a  private college could  be dismissed,  removed or  reduced in rank by the governing  body or managing council without the previous sanction of  the Vice  Chancellor or placed under suspension by the  governing body  or managing council for a continuous period  exceeding   fifteen  days   without  such   previous sanction. Further  sub-section (4)  provided that  a teacher against whom disciplinary action is taken shall have a right of appeal  to the  Syndicate, and  the Syndicate shall have, power to  order reinstatement  of the  teacher in  cases  of wrongful removal or dismissal and to order such other reme- 952 dial measures  as it  deems fit,  and the  governing body or managing council,  as the case may be, shall comply with the order. It  is thus obvious that in view of the provisions of sub-sections (2) and (4) of section 56 the managing body had no discretion  in the matter and the right of the management was completely  taken away and vested in some other body. In the instant  case, although  the Act does not at all provide any rules  or regulations by which the conditions of service of  the  teachers  are  to  be  governed  yet  it  prohibits dismissal or removal of teachers without prior sanction of a competent  authority  to  be  declared  by  the  Government. Similarly,  it  provides  for  an  appeal  to  an  appellate authority without laying down any guidelines and no right of appeal is  given to  the management.  These  provisions  are contained in  section 3,  sub-sections (2),  (3) and (4) and section 4.  This Court also considered the effect of section 58 of the Kerala Act by which a teacher of a college who was elected  as   a  member   of  the  Legislative  Assembly  or Parliament could  not be debarred on his election, but would be allowed  to continue.  Upholding the decision of the High Court and  commenting on the constitutionality of section 56 sub-sections (2)  and (4) and section 58 this Court observed as follows:-           "These   provisions    clearly   take   away   the      disciplinary action  from the  governing body  and  the      managing council and confer it upon the University."           "This enables  political parties  to come into the      picture of  the administration of minority institutions      which may  not like  this interference.  When  this  is      coupled with  the choice  of nominated  members left to      Government and  the University  by sub-s.1(d) of ss. 48      and 49  it  is  clear  that  there  is  much  room  for      interference by  persons other  than those  in whom the      founding community would have confidence."      In the  end while  making it  clear that  there was  no element of  malafides in  the Act passed by the Legislature, the provisions  of the Act unfortunately robbed the founders of their right of administration and were, therefore, hit by Article 30(1)  of the  Constitution. In this connection, the Court observed as follows:-           "We have  no doubt  that the provisions of the Act      were made  bona fide  and in  the interest of education      but unfortunately  they do affect the administration of      these institutions  and rob  the founders of that right      which the  Constitution desires  should be  theirs. The      provisions, even  if salutary, cannot stand in the face

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    of the constitutional guarantees". 953       In  the case of D.A.V. College etc. v. State of Punjab & Ors this Court was considering the provisions of Chapter V Clauses 2(1)(a),  17 and  18 read with clauses 1(2) and (3). Clause  2(1)  (a)  provided  that  a  college  applying  for admission to  the privileges of the University had to send a letter of  application to  the Registrar  and would  have to satisfy the  Senate  (1)  that  the  College  shall  have  a regularly constituted  governing body consisting of not more than 20  persons approved by the Senate (2) that among those persons  there   should  be   two  representatives   of  the University and  the  Principal  of  the  College  Exofficio. Clause 17  provided that any staff initially appointed shall be  approved  by  the  Vice-Chancellor  and  any  subsequent changes  made   must  be  reported  to  the  University  for approval. It  was also provided that in the case of training institutions the  teacher pupil ratio shall not be less than 1:12. The  constitutional validity  of these  provisions was challenged before  this Court on the ground that it violated Article 30(1)  of the Constitution because the College was a minority institution being a College established by the Arya Samaj. On  a consideration  of these  provisions, this Court upheld the contention of the appellants and observed thus:-           "It will be observed that under clause 1(3) if the      petitioners do not comply with the requirements under 1      (a)  their  affiliation  is  liable  to  be  withdrawn.      Similarly it  is stated  that clause 17 also interferes      with the  petitioners right to administer their College      as the  appointment of all the staff has to be approved      by the Vice-Chancellor and that subsequent changes will      also have  to be  reported to  the University for Vice-      Chancellor’s approval.  We have  already held  that the      Petitioners institutions are established by a religious      minority and  therefore under  Article 30 this minority      has right  to administer their educational institutions      according to  their choice.  Clause 2(a)  (a) and 17 of      Chapter in  V our  view certainly  interfere with  that      right."      The matter  was again fully considered by this Court by a Bench  consisting of  9 Judges  in all its aspects. In the case of  The Ahmedabad  St. Xaviers  College Society  & Anr. etc. v. State of Gujarat &  Anr and this is the leading case on the  subject. This case has been relied on by counsel for both the parties in support of their respective Contentions. In this  case it  appears that  certain  provisions  of  the Gujarat University  Act 1949  were challenged.  Section 5 of the Act provided 954 that  no   educational  institution   situated  within   the University could  be associated  in any  way  with  or  seek admission to  any privilege of any other University save and except with  the sanction  of the  State Government. Section 33A(1)(a) of  the Act provided that every college other than a  Government   college  or  a  college  maintained  by  the Government shall be under the management of a governing body which includes among others, the Principal of the College, a representative of  the University  nominated  by  the  Vice- Chancellor and  (ii) in the case of selection of a member of the teaching  staff of  the College  a  selection  committee would be  constituted consisting  of  the  Principal  and  a representative of  the University  nominated  by  the  Vice- Chancellor. Subsection  (3) of the section provided that the provisions of  section 33A  (1) shall  be  deemed  to  be  a condition of  affiliation of  every College  referred to  in

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that  sub-section.   In  other   words,  according  to  this provision,   even   the   Colleges   which   were   minority institutions would  fall within the mischief of the section. Section 39  provided that  within the  University  area  all post-graduate instruction,  teaching and  training shall  be conducted by the University or by such affiliated College or institution and  in such  subjects as  may be  prescribed by statutes. Section 40(1) enacted that Court of the University may determine  that all  instructions, teaching and training in the courses of studies in respect of which the University was to hold examination shall be conducted by the University and shall  be imparted  by the  teachers of  the University. Section 41(1) stated that all Colleges within the University area which  were admitted to the privilege of the University under section  5(3) and  all Colleges  within the  said area which may hereafter be affiliated to the University shall be constituent colleges  of the University, and their relations with the  University would  be governed  by statutes made by the University in that behalf.      As regards  the conditions  of service  of the teachers appointed by  the University  section 51A(a) (b) enacts that no member of the teaching or other academic and non teaching staff of  an  affiliated  college  shall  be  dismissed,  or removed or  reduced in  rank  except  after  an  enquiry  in accordance with  the procedure  prescribed in clause (a) and the penalty  to be inflicted on him is to be approved by the Vice-Chancellor or  any  other  officer  of  the  University authorised by  the Vice-Chancellor  in this  behalf. Section 52A(1) provided  that any dispute between the governing body and any  member of  the teaching staff shall on a request of the governing body or of the member concerned be referred to a Tribunal or arbitration consisting of one member nominated by the  governing body  of the college, one member nominated by the member concerned and an umpire appointed by the Vice- Chancellor. In view of the provisions referred to above, 955 the question  that felI  for consideration  in that case was whether these  k  provisions  interfere  with  the  internal management of the minority institutions so as to compel them to  surrender   all  their   administrative  powers  to  the University or  the Vice-Chancellor or the officers nominated by the  Vice-chancellor. There can be no doubt that if these provisions are  construed  against  the  background  of  the objective  of  the  Act  the  idea  was  not  to  leave  any controlling voice either in the courses of studies or in the matter of  disciplinary action  against the  staff  and  the teacher in  the management  of the  institution but  to take over the  entire management  by the  University  authorities giving nominal  representation  to  the  management  of  the institution.      Before we  analyse the  decision in  St.  Xaviers  case (supra) we  must note  that as far back as 1959 in Re Kerala education Bill this Court had clearly pointed out that while the minority  institution had  no constitutional right to be affiliated to  any college  or University  the right  to  be affiliated flowed  from the language of Article 30(1) of the Constitution and  the University  concerned could not either refuse affiliation  or  impose  such  conditions  which  may result in  complete surrendering  of the  management of  the minority institution.  Thus,  the  central  question  to  be decided in this case was whether by virtue of the provisions of the  Act set  out above,  Article 30(l) had been violated and if so to what extent.      So far as the question of affiliation was concerned the entire court  held that  although there  was no  fundamental

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right to  affiliation but  recognition  or  affiliation  was necessary for  meaningful exercise of the right to establish and administer  educational  institution  conferred  on  the minority   institutions   under   Article   30(l)   of   the Constitution. In  this connection,  the  Court  observed  as follows:-           "The consistent  view of  this Court has been that      there is no fundamental right of a minority institution      of affiliation.  An explanation  has been put upon that      statement of law. It is that affiliation must be a real      and meaningful  exercise for  minority institutions  in      the matter  of imparting general secular education. Any      law which  provides for affiliation on terms which will      involve abridgement  of the  right  of  linguistic  and      religious  minorities   to  administer   and  establish      educational institutions  of their  choice will  offend      Article 30(1).  The educational  institutions set up by      minorities will  be robbed of their utility if boys and      girls  cannot  be  trained  in  such  institutions  for      University  degrees.  Minorities  will  virtually  lose      their  right  to  equip  their  children  for  ordinary      careers if affiliation be on terms which wouId 956      make them  surrender and lose their rights to establish      and administer educational institutions of their choice      under  Article   30.......................  .....   The      establishment of  a minority  institution is  not  only      ineffective but  also unreal unless such institution is      affiliated  to   a  University   for  the   purpose  of      conferment of degrees n on students". Relying on  the previous  decision in  the case  of State of Kerala etc. v. Very Rev. Mother Provincial etc. (supra) Ray, C.J. reiterated  the principles  laid down  by the  previous case and observed as follows:-           "when minority  applies for affiliation, it agrees      to follow  the uniform courses of study. Affiliation is      regulating the educational character and content of the      minority institutions.  These regulations  are not only      reasonable in the interest of general secular education      but also conduce to. the improvement in the stature and      strength  of  the  minority  institutions..........  ..      ....... ....      .... .... .... .... .... .... .... .... .... ....      Affiliation  mainly   pertains  to   the  academic  and      educational character  of the  institution.  Therefore,      measures which  will regulate the courses of study, the      qualifications  and   appointment  of   teachers,   the      conditions of  employment of  teachers, the  health and      hygiene  of  students,  facilities  for  libraries  and      laboratories are  all comprised  in matters  germane to      affiliation of  minority institutions. These regulatory      measures for affiliation are for uniformity, efficiency      and  excellence  in  educational  courses  and  do  not      violate  any   fundamental  right   of   the   minority      institutions under Article 30".      Thus, to  a limited  extent affiliation of the minority institution to the University or Colleges concerned was held to be  a  regulatory  measures  provided  it  was  aimed  at improving the  educational standards  and  laying  down  the conditions  of   employment  of  the  teachers.  This  Court repeated that  the minority  institutions have  the right to administer the  institution and  shorn of  some  checks  and balances in  the shape  of regulatory  measures the right to administer cannot be tampered with. In this connection, Ray, C.J. Observed as follows:-

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         "The  minority  institutions  have  the  right  to      administer  institutions.   The   right   implies   the      obligation and  duty of  the minority  institutions  to      render the  very best to the students. In the rights of      administration, checks and balances 957      in the  shape of  regulatory measures  are required  to      ensure the  appointment  of  good  teachers  and  their      conditions of service. The right to administer is to be      tempered with  regulatory measures to facilitate smooth      administration. The  best administration will reveal no      trace or  colour of  minority. A  minority  institution      should   shine    in   exemplary   eclectism   in   the      administration    of    the    institution.............      Regulations  which  will  serve  the  interest  of  the      students, regulations which will serve the interests of      the  teachers  are  of  paramount  importance  in  good      administration.  Regulations   in   the   interest   of      efficiency of  teachers,  discipline  and  fairness  in      administration are  necessary for  pre serving  harmony      among affiliated institutions". C      As regards  the provision of the Act concerned by which the minority  institution became  a constituent College this was expressly  struck down  by this  Court where  Ray,  C.J. speaking for the Court observed as follows:-           "once an  affiliated college becomes a constituent      college within  the meaning  of section  41 of  the Act      pursuant to  a declaration  under section 40 of the Act      it becomes  integrated to the university. A constituent      college does not retain its former individual character      any longer.  The minority  character of  the college is      lost. Minority  institutions become  part and parcel of      the university.  The result  is that  section 40 of the      Act cannot  have any compulsory application to minority      institutions  because   it   will   take   away   their      fundamental  right   to  administer   the   educational      institutions of their choice".      Explaining what  the concomitants  of  an  autonomy  in administration meant Ray, C.J. observed as follows:-      "Autonomy in  administration means  right to administer      effectively and  to manage  and conduct  the affairs of      the  institutions.   The  distinction   is  between   a      restriction  on  the  right  of  administration  and  a      regulation prescribing  the manner  of  administration.      The   right   of   administration   is   day   to   day      administration.  The   choice  in   the  personnel   of      management  is   a  part  of  the  administration.  The      university will  always have  a right to see that there      is no maladministration. If there is maladministration,      the university  will take steps to cure the same. There      may be  control and check on administration in order to      find out whether the 958      minority institutions  are engaged  in activities which      are not conducive to the interest of the minority or to      the requirements  of  the  teachers  and  the  students      ......................  The   provisions  contained  in      section 33A(1)  (a) of  the  Act  have  the  effect  of      displacing  the  management  and  entrusting  it  to  a      different agency.  The autonomy  in  administration  is      lost. New  elements in  the shape of representatives of      .. different type are brought in. The calm waters of an      institution will  not only be disturbed but also mixed.      These provisions  in section 33A(1)(a) cannot therefore      apply to minority institution".

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    It follows  from what  had been  held in  the aforesaid case was  that there  should be no interference in the right of day  to day  administration of  the institution of in the choice of  the personality  of  the  managing  committee  or governing body  of the  institution. This  Court struck down section 33A(1) (a) of the Gujarat Act on the ground that the management of  the college  was completely displaced and was substituted by  the university  authorities. In other words, the position  appears to  be that although the university to which the  minority institution  was affiliated may exercise supervision in  so far  as the  syllabi or  the  courses  of studies are concerned, it cannot be allowed to be associated with the  managing committee  or the  governing body  of the institution so as to have a controlling voice in the matters at  issue   and  thereby  destroy  the  very  administrative autonomy of the minority institution. This appears to be the main reason  why Ray,  C.J. was  of the opinion that section 33A(1)(a) was  violative of  Article 30(1),  and, therefore, not applicable  to the minority institutions. The Court then dealt with  the provisions  of sections  51A and  52A of the Gujarat Act.  Under section  51A no  member of the teaching, other academic  and  non-teaching  staff  of  an  affiliated college should  be dismissed,  removed or  reduced  in  rank except after an enquiry in which he has been informed of the charges and  given a  reasonable opportunity  of being heard and until  he had  been given  a reasonable  opportunity  of making a  representation on  any such penalty proposed to be inflicted on  him and the penalty to be inflicted on him was to be  approved by the Vice-Chancellor or any officer o’ the University authorised by him. This Court held that this is a blanket power  given  to  the  Vice-Chancellor  without  any guidance, and observed as follows:           "The  approval   of  the  Vice-Chancellor  may  be      intended to  be a  check  on  the  administration.  The      provision contained  in section  51A, clause (b) of the      Act cannot  be  said  to  be  a  permissive  regulatory      measure inasmuch as it confers f ’ 959      arbitrary power on the Vice-Chancellor to take away the      A right of administration of the minority institutions,      Section 51A  of the  Act cannot,  therefore,  apply  to      minority institutions."      Dealing with the provisions contained in Section 52A of the Gujarat  Act  which  contemplated  a  reference  of  any dispute between  the governing  body and  any member  of the teaching or academic and non-teaching staff of an affiliated college which  was connected  with the conditions of service of such  member to  a. Tribunal of Arbitration consisting of one member  nominated by  the governing body of the college, one member  nominated by  the member concerned and an Umpire appointed by  the Vice-Chancellor, the learned Chief Justice was  of  the  opinion  that  the  introduction  of  such  an arbitration to  a Tribunal  would start a spate of fruitless litigation and  was likely  to  impair  the  excellence  and efficiency  maintained   by  the   educational   institution concerned. In  this connection,  the learned  Chief  Justice observed as follows:- D           "These references to arbitration will introduce an      area of  litigious controversy  inside the  educational      institution. The  atmosphere of the institution will be      vitiated by  such proceedings.  The governing  body has      its own  disciplinary authority. The governing body has      its domestic  jurisdiction. This  jurisdiction will  be      displaced.  A  new  jurisdiction  will  be  created  in      administration. The provisions contained in section 52A

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    of  the   Act  cannot,  therefore,  apply  to  minority      institution."      Jaganmohan  Reddy,   J.  agreeing   with  the  majority judgment delivered by the Hon’ble Chief Justice endorsed his conclusions  regarding   the  constitutional   validity   to sections 40,  41, 33A(1) (a), 33A(1) (b), 51A and 52A of the Act and observed thus:-           "We agree  with the  Judgment of Hon’ble the Chief      Justice just  pronounced and  with his conclusions that      sections 40, 41, 33A(1) (a), 33A(1) (b), 51A and 52A of      the Act  violate the  fundamental rights  of minorities      and  cannot,   therefore,  apply  to  the  institutions      established and administered by them."      Dwelling on  the importance  of the  fundamental  right enshrined in  Article 30,  the learned  Judge held  that the right under Article 30 7-138 SCT/80 960 could not  be exercised  in vacuo,  and in  this  connection observed as follows:-.           "The right  under Article 30 cannot be exercised m      vacuo. Nor would it be right to refer to affiliation or      recognition as  privileges granted  by the  State. In a      democratic  system   of  Government  with  emphasis  on      education and enlightenment of its citizens, there must      be  elements   which  give   protection  to  them.  The      meaningful exercise  of the  right under  Article 30(l)      would and  must necessarily  involve recognition of the      secular education imparted by the minority institutions      without which the right will be a mere husk. This Court      has so  far consistently  struck down  all attempts  to      make affiliation  or recognition on terms tentamount to      surrender of  its rights  under  Article  30(l)  as  1,      abridging or taking away those rights. Again as without      affiliation there  can be no meaningful exercise of the      right under  Article 30(l), the affiliation to be given      should be  consistent  with  that  right,  nor  can  it      indirectly try to achieve what it cannot directly do."      Similar view was taken by Khanna, J. who also held that management of  a minority  institution should  be kept  free from governmental  or other  interference because  the wonds "of their  choice" appearing  in  Article  30  have  special significance and would actually lose their value and utility if too  much interference or unnecessary curbs are placed in the  administration   of  the   affairs  of   the   minority institution. The learned Judge observed thus:      "Administration connotes  management of  the affairs of      the institution. 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.  The   words  "of  their  choice"  qualify  the      educational institutions  established and  administered      by the minorities need not be of some particular class;      the minorities  have the right and freedom to establish      and administer  such educational  institutions as  they      choose".      Similarly, explaining  the scope  and ambit of Articles 29 and 30 the learned Judge observed as follows:      "The broad  approach has  been to  see that  nothing is      done to  impair the  rights of  the minorities  in  the      matter of their 961      educational institutions  and that  the width and scope      of A  the provisions  of the  Constitution dealing with

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    those rights are not circumscribed. The principle which      can be discerned in the various decisions of this Court      is that the Catholic approach which led to the drafting      of the  provisions relating  to minority  rights should      not be set at naught by narrow judicial interpretation.      The minorities  are as much children of the soil as the      majority and  the approach  has  been  to  ensure  that      nothing should be done as naught deprive the minorities      of a sense of belonging, of a feeling of security, of a      consciousness of equality and of the awareness that the      conservation of  their religion,  culture! language and      script as  also the  protection  of  their  educational      institutions is  a fundamental  right enshrined  in the      Constitution.   The    same   generous,   liberal   and      sympathetic approach  should weigh  with the  courts in      construing  Articles   29  and   30   as   marked   the      deliberations of  the Constitution-makers  in  drafting      these Articles  and making them part of the fundamental      rights". The learned  Judge held that although it was permissible for the authority  concerned to  prescribe regulations  but such regulations should  not impinge  upon the right conferred on the  minority  institutions  under  Article  30(l).  A  just balance had to be struck between the two objectives, namely, passing  of   regulatory   measures   and   preserving   the fundamental rights of the minority institutions. The learned Judge observed as follows:-      "It  is,   therefore,  permissible  for  the  authority      concerned  to   prescribe  regulations  which  must  be      complied with before an institution can seek and retain      affiliation and recognition. Question can arise whether      there  is   any  limitation   on  the  prescription  of      regulations for  minority educational  institutions. So      far  as   this  aspect   is  concerned,  the  authority      prescribing the  regulations must bear in mind that the      Constitution has  guaranteed a fundamental right to the      minorities for  establishing  and  administering  their      educational  institutions.   Regulations  made  by  the      authority concerned should not impinge upon that right.      Balance has,  therefore, to  be kept  between  the  two      objectives, that of ensuring the standard of excellence      of the  institution and that of preserving the right of      the  minorities   to  establish  and  administer  their      educational institutions. Regula- 962      tions which  embrance and  reconcile the two objectives      can be considered to be reasonable."      The learned  Judge further  held  that  any  law  which interferes with  the minorities  choice of  a governing body would be violative of Article 30(1 ) and observed thus :-      "In the light of the above principles, it can be stated      that a  law which interferes with the minorities choice      of a  governing body  or management  council  would  be      violative of the right guaranteed by Article 30(l)."      Criticising the  constitutional validity of Section 52A of the  Gujarat Act Khanna, J. shared the view taken by Ray, C.J. which  has been  referred to  above. The  learned Judge observed as follows:-      "The provisions  of section  52A would  thus not  as  a      spoke in  the wheel  of effective administration o f an      educational institution.  It may  also be  stated  that      there is  nothing objectionable to selecting the method      of arbitration  for settling  major disputes  connected      with conditions  of service  of  staff  of  educational      institutions. It  may indeed  be a desideratum. What is

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    objectionable,  apart  from  what  has  been  mentioned      above,  is  the  giving  of  the  power  to  the  Vice-      Chancellor to  nominate the  Umpire. Normally  in  such      disputes there  would be  hardly any  agreement between      the arbitrator  nominated by  the governing body of the      institution and  the one  nominated  by  the  concerned      member of the staff. The result would be that the power      would vest  for all intents and purposes in the nominee      of the  Vice-Chancellor to  decide all disputes between      the  governing   body  and  the  member  of  the  staff      connected with  the latter  conditions of  service. The      governing body  would thus  be hardly  in a position to      take any effective disciplinary action against a member      of the staff. This must cause an inroad in the right of      the  governing  body  to  administer  the  institution.      Section 52A  should, therefore, be held to be violative      of  Article   30(l)  so  far  as  minority  educational      institutions are concerned." Similarly, while  striking down  sections 40  and 41  of the Gujarat Act,  the learned  Judge found  that the  affiliated colleges would  become constituent  colleges as  a result of the  provisions  of  these  sections  and  held  that  these provisions could  not apply to the minority institutions. In this connection, Khanna, J. Observed as follows:-      "A provision which makes it imperative that teaching in      , under-graduate  courses can  be conducted only by the      Uni- 963      versity and can be imparted only by the teachers of the      University plainly violates the rights of minorities to      establish and administer their educational institution.      Such .  a  provision  must  consequently  be  held  qua      minority institutions  to result  in  contravention  of      Article 30(1).  I would, therefore, strike down section      40 so  far as  minority  educational  institutions  are      concerned as being violative of Article. 30(1)".      Mathew,  J.  while  striking  down  the  constitutional validity of  section 33A(1)  of the  Gujarat Act observed as follows:-      "The  heart  of  the  matter  is  that  no  educational      institution established  by a  religious or  linguistic      minority can  claim total  immunity from regulations by      the  legislature   or  the   university  if   it  wants      affiliation or  recognition; but  the character  of the      permissible  regulations   must   depend   upon   their      purpose... In  every case, when the reasonableness of a      regulation comes up for consideration before the court,      the question  to be  asked and  answered is whether the      regulation is  calculated to subserve or will in effect      sub serve  the purpose  of recognition  or affiliation,      namely, the  excellence of the institution as a vehicle      for general secular education to the minority community      and to  other persons  who report  to it.  The question      whether a  regulation is in li: the general interest of      the public has no relevance, if it does not advance the      excellence of  the institution as a vehicle for general      secular   education    as,   ex-hypothesi,   the   only      permissible regulations  are  those  which  secure  the      effectiveness of  the purpose  of the facility, namely,      the  excellence  of  the  educational  institutions  in      respect of their educational standards."      Similarly, the  learned Judge  took strong exception to the provisions  of  section  33A  which  required  that  the college should  have a  governing body  which should include persons other  than those  who are members of the society of

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Jesus, struck  provisions of  section 33A  and  observed  as follows:-      "We think  that the  provisions of sub-sections (1) (a)      and (l)(b)  of section  33A abridge  the right  of  the      religious   minority    to    administer    educational      institutions of  their choice. The requirement that the      college  should  have  a  governing  body  which  shall      include persons other than those who are members of the      governing body of the society of Jesus 964      would take  away the management of the college from the      governing body  constituted by the Society of Jesus and      vest it  in a  different body.  The right to administer      the educational  institution established by a religious      minority is  vested in  it. It is in the governing body      of the  Society of  Jesus that  the religious  minority      which established  the college  has vested the right to      administer the  same. The  requirement that the college      should have  a governing  body including  persons other      than those  who constitute  the governing  body of  the      Society of  Jesus has the effect of divesting that body      of  its  exclusive  right  to  manage  the  educational      institution      The learned  Judge further  pointed out  that under the guise of  preventing mal-administration  the  right  of  the governing  body  to  manage  the  affairs  of  the  minority institution should  not be  take away  and in the same token observed as follows:-      "Under the  guise of preventing mal-administration, the      right of  the governing body of the college constituted      by the religious minority to administer the institution      cannot be  taken away.  The effect  of the provision is      that the  religious minority  virtually loses its right      to  administer   the  institution   it   has   founded.      "Administration" means  ’management of  the affairs’ of      the  institution.  This  management  must  be  free  of      control so  that the  founders or  their  nominees  can      mould  the   institution  according  to  their  way  of      thinking and  in accordance  with their idea of how the      interests  of   the  community   in  general   and  the      institution in  PARTICULAR will be best served. No part      of this  management can  be taken  away and  vested  in      another  body   without  an   encroachment   upon   the      guaranteed right."      Similarly, analysing  various provisions of the Gujarat Act like sections 51A(1) (a) and 51A(l) (b) etc. the learned Judge observed as follows:-      "The relationship  between the management and a teacher      is that of an employer and employee and it passes one’s      understanding why  the management  cannot terminate the      services of  a teacher  on the basis of the contract of      employment. Of  course, it  is open to the State in the      exercise of its regulatory power to require that before      the services  of a  teacher are terminated he should be      given an opportunity of being heard in his defence. But      to require 965      that for  terminating the  services of  a teacher after      all inquiry  has been  conducted, the management should      have the  approval of  an outside agency like the Vice-      Chancellor or of his nominee would be an abridgement of      its right to administer the educational institution. No      guide lines  are provided  by the  legislature  to  the      Vice-Chancellor for the exercise of his power. The fact      that the  power can be delegated by the Vice-Chancellor

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    to any  officer of  the university means that any petty      officer to  whom the  power is delegated can exercise a      general power of veto. There is no obligation under the      sub-sections  (1)  (b)  and  (2)  (b)  that  the  Vice-      Chancellor or  his nominee  should give  any reason for      disapproval. As  we said  a blanket  power without  any      guideline to  disapprove the  action of  the management      would  certainly   encroach  upon   the  right  of  the      management to  dismiss or  terminate the  services of a      teacher after an enquiry."      Beg, J. speaking in the same strain observed as      follows :      "It is  true that,  if the object of an enactment is to      compel a  minority institution even indirectly, to give      up  the   exercise  of   its  fundamental  rights,  the      provisions which  have this  effect  will  be  void  or      inoperative against the minority institution. The price      of affiliation  cannot be  a total  abandonment of  the      right  to   establish   and   administer   a   minority      institution  conferred   by  Article   30(1)   of   the      Constitution. This  aspect of  the  matter,  therefore,      raises the  question whether  any of  the provisions of      the Act  are  intended  to  have  that  effect  upon  a      minority institution.  Even if  that intention  is  not      manifest  from   the   express   terms   of   statutory      provisions, the  provisions may  be vitiated if that is      their necessary consequence or effect."      Even Dwivedi,  J. who had sounded a discorded note held that so  far as  section 33A(1)  (a) was  concerned  it  was obnoxious to Article 30(1) of the Constitution.      In the  case of Gandhi Faizeam College Shahajahanpur v. University of Agra and Anr. the majority judgment consisting of V.  R. Krishna  Iyer and  A.C.  Gupta,  JJ.  Observed  as follows:-      "What is  the core  of the  restriction clamped down by      Statute 14-A?  What is  the conscience  and  tongue  of      Article 30  ? If  the former  is incongruous  with  the      latter, it 966      withers as void; otherwise, it prevails and binds. That      is the crux of the controversy."      "The thrust  of the  case is  that real regulations are      desirable, necessary  and constitutional but, when they      operate on the ’administration’ part of the right, must      be confined  to chiselling into shape, not cutting down      out  of   shape,  the  individual  personality  of  the      minority."      Mathew, J.  who gave  a dissenting  opinion  and  whose opinion follows the principles laid down by the Court in St. Xavier’s case (supra) observed as follows:-      "The determination  of the  composition of  the body to      administer the educational institution established by a      religious minority must be left to the minority as that      is the  core of the right to administer. Regulations to      prevent maladministration by that body are permissible.      As the  right to  determine the composition of the body      which will  and minister the educational institution is      the very  essence of the right to administer guaranteed      to the  religious or  linguistic minority under Article      30(1), any  interference in  that area  by  an  outside      authority cannot be anything but an abridgement of that      right. The  religious or  linguistic minority  must  be      given the  freedom to  constitute  the  agency  through      which  it   proposes  to   administer  the  educational      institution established  by it  as that is what Article

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    30(l) guarantees.  The right  to shape  its creation is      one thing: the right to regulate the manner in which it      would function after it has come into being is another.      Regulations     arc      permissible     to     prevent      maladministration but  they  can  only  relate  to  the      manner of  administration after  the body  which is  to      administer has come into being."      The entire  case law  as fully  reviewed by  this Court recently in  the case of Lilly Kurian v. Sr. Lewin & ors. In this case,  Sen, J.  speaking for the court and after a deep dichotomy and  adroit analysis  of St. Xavier’s case (supra) and the  case which  preceded that  case summed  up the  law thus:-      "An analysis  of the judgments in St. Xaviers College’s      case (supra)  clearly shows  that  seven  out  of  nine      Judges held  that the  provisions contained  in clauses      (b) of  sub-sections (1)  and (2) of section 51A of the      Act were  not applicable  to an educational institution      established and managed by 967      religious or linguistic minority as they interfere with      the   disciplinary control.  Of the management over the      staff of  its  educational  institutions.  The  reasons      given by  the majority  were  that  the  power  of  the      management to terminate the ser vices of any members of      the teaching  or other  academic and non-academic staff      was based  on the  relationship between an employer and      his employees and no encroachment could be made on this      right  to   dispense  with  their  services  under  the      contract of  employment, which  was an integral part of      the right  to administer,  and  that  these  provisions      conferred on  the Vice-Chancellor  or any other officer      of  the  University  authorised  by  him,  uncanalised,      unguided and unlimited power to veto the actions of the      management."      "The power  of appeal  conferred on the Vice-Chancellor      under ordinance  33(4) is not only a grave encroachment      on  the  institution’s  right  to  enforce  and  ensure      discipline in  its administrative  affairs  but  it  is      uncanalised  and   unguided  in   the  sense   that  no      restrictions are  placed on  the exercise of the power.      The  extent   of  the  appellate  power  of  the  Vice-      Chancellor is  not defined; and, indeed, his powers arc      unlimited. The grounds on which the Vice-Chancellor can      interfere in  such appeals are also not defined. He may      not only  set aside  an order of dismissal of a teacher      and order  his reinstatement,  but may  also  interfere      with any of the punishments enumerated in items (ii) to      (v) of  ordinance 33(2);  that is  to say,  he can even      interfere against  the infliction of minor punishments.      In the  absence of  any guidelines,  it cannot  be held      that the  power of  the Vice-Chancellor under ordinance      33 (4) was merely a check on maladministration.           As  laid  down  by  the  majority  in  St.  Xavier      College’s case  (supra) such  a blanket  power directly      interferes  with   the  disciplinary   control  of  the      managing body  of a  minority  educational  institution      over its teachers".      Thus, on  an exhaustive  analysis of the authorities of this Court  and the  views taken  by it  from time  to  time during the  last two  decades on various aspects, shades and colours, built-in safeguards, guarantees, scope and ambit of the fundamental  right  enshrined  in  Articles  30(1),  the principles and  propositions that  emerged may be summarised as follows:-

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    1.   That from the very language of Article 30(1) it is           clear that it enshrines a fundamental right of the 968           minority institutions  to  manage  and  administer           their educational institutions which is completely           in consonance  with  the  secular  nature  of  our           democracy and  the  Directives  contained  in  the           Constitution itself.      2.   That  although   unlike  Article   19  the   right           conferred   on   the   minorities   is   absolute,           unfettered and  unconditional but  this  does  not           mean that  this right  gives a  free  licence  for           maladministration  so  as  to  defeat  the  avowed           object  of   the  Article,   namely,  to   advance           excellence  and   perfection  in   the  field   of           education.      3.   While the  State or  any other statutory authority           has  no  right  to  interfere  with  the  internal           administration  or   management  of  the  minority           institution,  the   State   can   certainly   take           regulatory measures  to promote the efficiency and           excellence  of  educational  standards  and  issue           guidelines  for   the  purpose   of  ensuring  the           security of  the services of the teachers or other           employees of the institution.      4.   At the  same  time,  however,  the  State  or  any           University authority  cannot under  the  cover  or           garb  of  adopting  regulatory  measures  tend  to           destroy  the   administrative  autonomy   of   the           institution or  start interfering willy nilly with           the core  of the  management of the institution so           as to  render the  right of  the administration of           the  management   of  the   institution  concerned           nugatory or  illusory. Such a blatant interference           is clearly violative of Article 30(1) and would be           wholly inapplicable to the institution concerned.      5.   Although  Article   30  does   not  speak  of  the           conditions under  which the  minority  educational           institution can  be affiliated  to  a  college  or           University yet  the section  by  its  very  nature           implies that  where an  affiliation is  asked for,           the University  concerned cannot  refuse the  same           without sufficient  reason or  try to  impose such           conditions as would completely destroy the autono-           mous    administration    of    the    educational           institution.      6.   The induction of an outside authority however high           it may  be either directly or through its nominees           in the governing body or the managing committee of           the minority institution to conduct the affairs of           the institution would be completely destructive of           the fundamental  right guaranteed by Article 30(1)           of the 969           Constitution and  would reduce the management to a           helpless entity  having no  real say in the matter           and  thus   destroy  the   very  personality   and           individuality of  the institution  which is  fully           protected  by  Article  30  of  the  Constitution.           Perhaps there  may not be any serious objection to           the introduction  of  high  authorities  like  the           Vice-Chancellor   or    his   nominee    in    the           administration particularly  that part of it which           deals  with  the  conditions  of  service  of  the           teachers yet such authorities should not be thrust

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         so as  to have  a controlling  voice in the matter           and thus  over-shadow the  powers of  the managing           committee. Where educational institutions have set           up a  particular governing  body or  the  managing           committee in  which all  the powers  vest,  it  is           desirable that such powers should not be curbed or           taken away unless the Government is satisfied that           these powers  are grossly abused and if allowed to           continue may  reduce me efficacy or the usefulness           of the institution.      7.   It is,  therefore, open  to the  Government or the           University  to   frame   rules   and   regulations           governing the conditions of service of teachers in           order to  secure their  tenure of  service and  to           appoint a  high authority  armed  with  sufficient           guidance to  see  that  the  said  rules  are  not           violated or  the members  of  the  staff  are  not           arbitrarily treated  or innocently  victimised. In           such a  case the  purpose is not to interfere with           the internal  administration or  autonomy  of  the           institution, but  it  is  merely  to  improve  the           excellence and efficiency of the education because           a really  good education  can be  received only If           the tone  and temper of the teachers are so framed           as tc  make them  teach the students with devotion           and dedication and put them above all controversy.           But while  setting up  such an authority care must           be taken  to see  that the  said authority  is not           given blanket and uncanalised and arbitrary powers           so as  to act at their own sweet will ignoring the           very spirit  and objective  of the institution. It           would  be   better  if   the  authority  concerned           associates the  members of  the governing  body or           its nominee  in its  deliberation so  as to instil           confidence in  the founders  of the institution or           the committees constituted by them. 970      8.   Where a  minority institution  is affiliated  to a           University the  fact that  it is enjoined to adopt           the courses  of study or the syllabi or the nature           of books prescribed and tho holding of examination           to  test  the  ability  of  the  students  of  the           Institution concerned does not violate the freedom           contained in Art. 30 of the Constitution.      9.   While there  could be no objection in setting up a           high authority  to supervise the teaching staff so           as to keep a strict vigilance on their work and to           ensure the  security of  tenure for  them, but the           authority concerned  must be  provided with proper           guidelines under  the restricted  field which they           have to  cover. Before  coming  to  ally  decision           which may  be binding  on the  managing committee,           the Head  of the institution or the senior members           of the  managing committee  must be associated and           they should  be allowed  to have a positive say in           the matter.  In some cases the outside authorities           enjoy  absolute   powers   in   taking   decisions           regarding  the   minority   institutions   without           hearing them  and these  orders are binding on the           institution.  Such  a  course  of  action  is  not           constitutionally permissible  so far  as  minority           institution  is   concerned  because  it  directly           interferes with the administrative autonomy of the           institution. A provision for an appeal or revision           against  the   order  of   the  authority  by  the

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         aggrieved member of the staff alone or the setting           up  of   an  Arbitration   Tribunal  is  also  not           permissible because  Ray, C.J.  pointed out in St.           Xaviers case  (supra) that such a course of action           introduces  an   arena  of  litigation  and  would           involve the  institution in  unending  litigation,           thus  imparing   educational  efficiency   of  the           institution  and   create  a  new  field  for  the           teachers  and   thus  draw   them  out  of  purely           educational    atmosphere    of    the    minority           institutions for  which they had been established.           In other words, nothing should be done which would           seek to  run counter  to  the  intentions  of  the           founders of such institutions.      These are  some of  the important  principles that have been clearly  laid down  by the  Supreme Court  in the cases discussed above.  I  shall  now  endeavour  to  examine  the provisions  of   the  impugned  Act  in  the  light  of  the principles enunciated  above. I  shall point  out  hereafter that some  of the  provisions of  the Act  are so  harsh and arbitrary and 971 confer  uncanalised   powers  on  some  of  the  authorities appointed under  the Act  so as  to amount  to a  direct and thoughtless  interference   with  the   management  of   the institution      Coming to  the provisions  of the  Act one  significant feature may  be noticed  here. Unlike  other Acts  passed by some of  the States  the impugned Act, while it takes within its sweep  even the  minority institutions,  does not at all lay down  any rules, regulations governing the conditions of service of  the teachers  of the  institution, nor  does  it provide any guidelines on the basis of which the rules could be made,  nor  does  it  contain  a  mandate  directing  the minority institution to frame proper rules and conditions of service of its teachers. Mr. Lal Narayan Sinha appearing for the appellants  submitted that this is a most serious lacuna in the Act which makes it completely violative of Article 30 of the  Constitution and  other provisions read in the light of this lacuna also lose their legal sanctity.      Section 1(3)  provides that  the  Act  applies  to  all private educational  institutions that  is to  say including minority  institutions.   In  the   instant  case   all  the appellants are  institutions established  by  the  Christian community. Sub-section  (4) of  section 1  says that the Act shall be  deemed to have come into force on the 5th October, 1974. Sections  2 is  the definition  clause  which  defines various terms  used in the Act and it is not germane for our purpose to  deal with  the various definitions which is more or less  a formality.  Learned  counsel  appearing  for  the appellants has  challenged the  constitutional  validity  of sections 3, 4, 5, 6, 7, 10, 11, 12, 16 and 17 of the Act.      Section 3(1) of the Act may be extracted thus:-           "3(1) Subject to any rule that may be made in this      behalf, no  teacher employed in any private educational      institution shall  be dismissed  removed or  reduced in      rank nor shall his appointment be otherwise terminated,      except  with   the  prior  approval  of  the  competent      authority.;           Provided  that   if  any  educational  management,      agency or  institution contravenes  the  provisions  of      this sub-section, the teachers affected shall be deemed      to be in service". A perusal of this section would clearly reveal that while no rules regulating  the conditions  of service of the teachers

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employed in private institutions had been made, the power to do so  has been  reserved with  the Government.  The proviso enjoins that  any contravention  of the provisions would not affect the teachers who would be deemed to be in service. It is manifest  that in  the absence  of any  rules the proviso would have  no application.  Even if  the proviso applies it would 972 amount to  a serious  inroad on the fundamental right of the minority institutions  to administer  or  manage  their  own affairs. Thus  s.  3(1)  as  also  the  proviso  is  clearly violative of  own affairs  Art. 30 is wholly inapplicable to the minority  institutions. Serious  exception on  has  been taken by counsel for the appellants to sub-sections (2), (3) and (4) of section 3. Section 3(2) may be extracted thus :-           "3 (2)  Where me  proposal to  dismiss, remove  or      reduce in  rank or  otherwise terminate the appointment      of any  teacher employed  in  any  private  educational      institution is  communicated to the competent authority      that authority shall, if it is satisfied that there are      adequate and  reasonable  grounds  for  such  proposal,      approve such  dismissal, removal,  reduction in rank or      termination of appointment". This  sub-section   seeks  to   control  the  power  of  the institution concern  ed in  the matter of dismissal, removal or reduction  in rank  or termination  of the appointment of any teacher  employed by any private educational institution and enjoins  that any  action taken against the teacher will be of  no consequence  unless it  is approved  by  the  said competent authority.  It will  be rather interesting to note that  the   competent  authority  has  not  been  given  any guidelines under  which it  can act.  The Solicitor  General (Mr. S. N. Kacker) submitted that the word ’satisfy’ as used in the  section is a strong term and regulates the powers of the  competent   authority  and   the  words  "adequate  and reasonable grounds" contain sufficient guidelines to exclude exercise of  any arbitrary  power. I  am, however, unable to agree with  this contention.  In the first place, it was the inherent and  fundamental right  of the  institution to deal with its  employees or  teachers and  take necessary  action against them. If the State wanted to regulate the conditions of service of the teachers it should have taken care to make proper rules  giving sufficient  powers to the management in the manner  in which  it was to act. Secondly, the induction of an outside authority over the head of the institution and making its decision final and binding on the institution was a blatant  interference with  the administrative autonomy of the  institution.  Sub-section  (2)  does  not  contain  any provision that while giving approval the competent authority was to  ascertain the  views of  the governing  body or  the managing committee  so as  to know  their view point and the reason why  action  has  been  taken  against  a  particular teacher or  teachers. Similarly,  the  words  "adequate  and reasonable" are  too vague and do not lay down any objective standard to judge the discretion which is to be exercised by the competent  authority whose  order will be binding on the institution. Thirdly, 973 while section  4 gives  a right  to the aggrieved teacher to file an appeal before the appellate authority, no such right has been  given to  the management to file an appeal against the order  of the competent authority if it refuses to grant sanction to  the order  of the  managing  committee  of  the institution. Thus,  in my  opinion, sub-section  (2) suffers

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from the  Vice of excessive delegation of powers and confers undefined, uncanalised,  absolute and  arbitrary  powers  to grant or  to refuse  sanction to  any action  taken  by  the managing committee  and almost  reduces the institution to a helpless position.  Such a  provision, therefore,  not  only interferes  with   the  right   of  the  management  of  the institution but  is  completely  destructive  of  the  right conferred on  the institution  under Article  30(1)  of  the Constitution. Even  C the  competent authority  mentioned in the sub-section  is merely  the District Educational officer and it  appears from  the record  that it is not a very high authority such as, the Director of Public Instruction or the Vice-Chancellor which may be presumed to act objectively and reasonably. Another  material defect in section 3(2) is that no time limit has been fixed by the statute within which the competent  authority   is  to  give  its  approval.  If  the competent authority  either due  to over  work endeavours or some other  reason chooses  to sit  over the  matter  for  a pretty long  time a  stalemate would  be created  which will seriously impair  the smooth  running  of  the  institution. Indeed if sub-section (2) would have been cast in a negative form so  as to  provide that  the sanctioning  authority was bound  to   give  approval   to  any  action  taken  by  the institution  against  its  teachers  unless  it  was,  after hearing the  teacher and  the management of the institution, satisfied that  the order  passed by  the institution or the action taken  by it  was in  violation of  the principles of natural justice,  against the statutory provisions of law or tainted with  factual or  legal malice no objection could be taken. If the section would have been worded in this manner, then its  validity could have been upheld on the ground that it was a sound regulatory measure which does not destroy the administrative autonomy  of the  institution but is meant to ensure the  security of  tenure of the teaching staff of the institution. But  as this  is not  so, the  validity of  the provision cannot be supported. For these reasons, therefore, I am satisfied that subsection (2) is unconstitutional being violative of  Article 30(1)  of the  Constitution and  would have no application to any minority institution      Sub-section (3) of section 3 runs thus:- "3   (3)  (a)  No   teacher    employed   in   any   private                educational institution shall be placed under                suspension, except 974                when an  inquiry into the gross misconduct of                such teacher is contemplated.           (b)   No such suspension shall remain in force for                more than  a period  of two  months from  the                date of suspension and if such inquiry is not                completed within  that period,  such  teacher                shall, without  prejudice to  the inquiry, be                deemed to have been restored as teacher.           Provided that  the competent  authority  may,  for      reasons to  be recorded  in writing,  extend  the  said      period  of   two  months,  for  a  further  period  not      exceeding two  months,  if,  in  the  opinion  of  such      competent authority, the inquiry could not be completed      within the  said  period  of  two  months  for  reasons      directly attributable to such teacher". These provisions  deprive the  minority institution  of  the power to  suspend any  teacher unless  an inquiry  into  the gross misconduct  of such teacher is contemplated. One could understand if  the word  ’misconduct’ alone was used in sub- section (3)  (a) but  as it  is qualified  by the  adjective gross, it  almost destroys the power of suspension which the

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minority institution might possess. Even so, sub-section (3) (b) makes  it clear that no suspension shall remain in force for a  period of  more than  two months  from  the  date  of suspension and  if  no  inquiry  is  completed  within  this period, the  teacher would  have to  be reinstated.  This is indeed a  most peculiar  provision and  gives an unqualified right to  a teacher  in the  matter of  suspension.  Even  a Government servant  to whom  Article 311 of the Constitution or the  statutory rules  apply does not enjoy such a liberal facility. Moreover, the rules make a mockery of any order of suspension passed  pending an  inquiry. It is very difficult to predicate how long an inquiry would last and yet to limit the period  of suspension  to two months irrespective of the nature, length  and the  scope of  the inquiry  to only  two months is really to completely curb the power of suspension.      The  proviso  to  section  3  (3)  again  empowers  the competent authority to extend the period of suspension. Thus the cumulative  effect of  sub-sections (3)(a), 3(b) and the proviso is  to interfere with the internal administration of the minority  institution and  curb the  power of suspension and thus  deprive the  institution of the right of or taking any disciplinary  action against  the  teacher  to  such  an extent that  the institution  becomes almost  a figure-head. Such a  provision, therefore,  cannot be  upheld  as  it  is clearly violative 975 Of Article 30(1) of the Constitution of India. It is obvious that whenever an institution suspends a teacher, it is bound to pay  subsistence allowance and any express provision like sub-section (4) of section 3 is wholly unnecessary and makes a  serious   inroad  on   the  internal   autonomy  of   the institution. Thus, in our opinion, section 3 in its entirety is ultra  vires as  being violative  of Article 30(1) of the Constitution and  is wholly  inapplicable to  the appellants who are admittedly minority institutions.      Section 4 of the Act may be quoted thus:-           "4. Any  teacher employed in any private education      institution -      (a)  who is  dismissed, removed  or reduced  in rank or           whose appointment is otherwise terminated; or      (b)  whose pay or allowances or any of whose conditions           or service  are  altered  or  interpreted  to  his           disadvantage, by any order;      may  prefer   an  appeal  against  the  order  to  such      authority  or   officer  as   may  be  prescribed;  and      different authorities or officers may be prescribed for      different classes of private educational institutions.      Explanation: In  this section,  the expression  ’order’      includes any  order made  on or  after the  date of the      commencement of this Act in any disciplinary proceeding      which was pending on that date". This section  gives a  right of  appeal to  a teacher who is dismissed, removed or reduced in rank and whose services are terminated. No  guideline are  provided in which manner this power is  to be  exercised nor does it contain any provision which may  entitle the  minority institution  to be heard by the appellate  authority. No  principles or  norms are  laid down  on  the  basis  of  which  the  order  passed  by  the institution could  be examined  by the  appellate authority. Even what would amount to misconduct has not been defined or qualified in sections 2, 3 or 4. It is, therefore, difficult to understand  how the appellate . court would exercise this power in  deciding whether  or not the teacher was guilty of misconduct and what is the correlation between the degree of misconduct and  the appropriate  punishment which  may  have

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been  awarded   by  the  institution  and  approved  by  the competent authority. The conferment of such an 8-138 SCI/80 976 absolute and unguided power on the appellate authority which if passed against the management it cannot even file a civil suit to  set aside  this order  amounts not only to a direct interference with  the right  enshrined in  Article 30(l) of the Constitution  but makes the minority institution a limp, lifeless and  powerless body incapable of effective teaching and/or attaining  excellence in  the standards of education. such a course of action is bound to hurt the feelings of the founders of the institution. For these reasons, therefore, I and of  the opinion  that section  4 is  also ultra vires as violative of  Article 30  of  the  Constitution  and  would, therefore, have  no application to the minority institutions who are appellants in this case.      Section 5  merely provides  for transfer  of an  appeal pending before  any authority to the appellate authority and if section  4 falls  and is  inapplicable  to  the  minority institution section  5 also  follows the  same fate and will not apply to the minority institution.      Section 6 runs thus:-           "6. Where any retrenchment of any teacher employed      in any  private  educational  institution  is  rendered      necessary consequent  on any  order of  the  Government      relating to  education or  course of  instruction or to      any other  matter, such  retrenchment may  be  effected      with the prior approval of the competent authority". I This section  deals with  the contingencies  under which the institution  may   be  compelled  to  retrench  any  teacher employed in  the school.  Whatever be  the position in other private educational  institutions so  far  as  the  minority institution is  concerned, this  is purely a domestic matter of the  institution and  cannot be  interfered with  by  any statute. The  words "administer  educational institutions of their choice"  clearly indicate  that the institution has an absolute right  to select  teachers, retain them or retrench them at  its sweet will according to the norms prescribed by the institution  or by the religious order which has founded the institution.  As almost all the minority institutions in the present  case are not receiving any substantial aid from the Government but have established the institution by their own moneys  and are  bearing all the expenses themselves, it is  none  of  the  business  of  any  outside  authority  to interfere with  or dictate  to the  institution as  to which member of the staff should be retrenched and which should be retained. The  provisions of  section 6  directly  interfere with this  valuable right  of the  institution by  providing that the retrenchment shall be made with the approval of the competent authority.  The power  is uncanalised and unguided and , suffers from the same vices as has been pointed out in the case of 977 section 3  of the Act. For these reasons, therefore, section 6 will have no application to the institution.      Section 7 may be extracted thus:-           "7.  l  he  pay  and  allowances  of  any  teacher      employed in  any private  educational institution shall      be paid  on or  before such day of every month, in such      manner and  by or  through such  authority, officer  or      person, as may be prescribed". This is purely an innocuous provision which is meant for the benefit of  the institution  itself  by  providing  how  the salaries of  the employees of the institution should be paid and is  purely a  regulatory measure  which does  not at all

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touch or  effect the administrative autonomy of the minority institution.      So far  as sections  8 and  9 are concerned, they would obviously not  apply to  the minority  institutions  because these  institutions   do  not   receive  any  aid  from  the Government and  are, therefore,  not liable  to maintain  or furnish accounts  to the  University authorities  or to  the Government, nor  the prescribed  authority has  any right to inspect  or   pass  audit   of  the  accounts  kept  by  the institution. For these reasons, sections 8 and 9 also do not apply to the minority institutions.      Section 10  relates to  the inspection  or  inquiry  in respect or  private educational  institution, its buildings, laboratories etc.,  or any  other matter  connected with the institution which may be necessary. Subsections (2), (3) and (4) of  section 10  provide the mode in which the inspection or inquiry  is. to  be made  and a  report submitted  to the concerned authority. These provisions are also in the nature of sound  regulatory measures and appear to be in the larger interest of  the functioning  of the institution itself and, therefore, do not offend Article 30 of the Constitution.      Section 11 runs thus:-           "11. Every  educational agency  shall, within such      time or  within such  extended time  as may be fixed by      the competent  authority in this behalf, furnish to the      competent authority  such returns  statistics and other      information as  the competent  authority may, from time      to time require." This section  also contains  purely a regulatory measure and is in  the best  interest of  the institution  and cannot be said to violate Article 30( 1) of the Constitution. 978      Section 12 and 13 relate to penalties for contravention of the  provisions of  the Act which have been held by me to be violative  of Article  30 and, therefore, inapplicable to the appellants  because that  would amount to destroying the very foundation and personality of the minority institution. These sections  are also  not  applicable  to  the  minority institution except  n respect of provisions of the Act which have been upheld by me.      Section 15  contains the  revisional power and provides that the  Government may  delegate its powers, or make rules regarding the  exercise of  such a  power.  I  have  already pointed out  that the setting up of a competent authority to sanction or  approve the  order passed by the institution in respect of a member of the staff where sufficient guidelines and grounds  for approval  have been  prescribed is purely a regulatory measure  and does  not attract  Art.  30  of  the Constitution. The  conferment of a right of revision against any order of the minority institution under the Rules framed which provide  sufficient guidelines  and allow the minority institutions an  opportunity to  be heard,  is an  innocuous provision and  does not  impinge  on  the  autonomy  of  the minority institution.  I am, therefore, of opinion that such a provision  is in the best interests of the institution and does not  in any way harm the personality of the institution or destroy  the image so as to interfere with its autonomous functioning.  I,   therefore,  hold   that  section   15  is constitutionally valid  and I  might hasten  to add that its constitutionality was not challenged before this Court.      Section  16  bars  a  civil  court  from  deciding  the questions which  fall under this Act and section 17 contains an indemnity  clause. As  I have  held that  almost all  the operative and  important provisions  of this  Act are  ultra vires, these  sections also would have no application to the

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minority institution.  In fact,  section 16  suffers from  a serious defect,  viz., that  if it  was held  by me that the provision regarding  appeal to  the appellate  authority was valid then  section 16  completely bars  the  right  of  the management to  file a  suit to challenge the validity of the order of the appellate authority. To this extent, therefore, this Section makes a serious inroad on the fundamental right of  the   minority  institution  and  must  be  held  to  be inapplicable to the minority institution.      I have  gone through  the judgment  of the  High  Court which does not appear to have considered the various aspects and features  of the  matter set  out  by  me,  hor  has  it properly applied the propositions summarised by me as culled out from the various decisions of this 979      Court starting  from 1959  (Re: Kerala Education Bill’s case) (supra) to 1979 (Lily Kurian’s case) (supra).      For these reasons, I hold the sections 3 (alongwith its sub-section, 4,  5, 6, 8, 9, 12, 13, 16 and 17 are violative of Article 30 of the Constitution and have no application to the appellants  which are  minority institutions  and  which fall within  the protection  guaranteed by  the Constitution under Article 30. I accordingly allow all these appeals, set aside the  order  of  the  High  Court  and  quash  all  the directions which  may have  been issued by the Government or other authorities  under the  Act to  the appellants  except such steps  as are  taken under  those provisions of the Act which have  been upheld  by me, viz., sections 7, 10, 11, 14 and 15.  In the  peculiar circumstances of the case, I leave the parties to bear their own costs.      KAILASAM, J. These appeals are by special leave against the judgment  of the  High Court  of  Judicature  at  Andhra Pradesh.      Several writ  petitions  questioning  the  validity  of certain provisions  of the Andhra Pradesh Recognised Private Educational  Institutions  Control  Act,  1975  (hereinafter called the  Act)  were  heard.  These  writ  petitions  were disposed of  by a common judgment by the Andhra Pradesh High Court. Aggrieved  by the  judgment of the High Court helding that the  impugned sections of the Act is intra vires of the Constitution,  not   void  and   operative  on  schools  and institutions of  the  minorities,  the  present  appeals  by special leave have been preferred.      The purpose  of the  legislation  is  set  out  in  the Statement of  objects and  Reasons to the Bill. It is stated :-           "Of late.  several  instances  have  come  to  the      notice of  the State  Government regarding  the various      irregularities committed  by the managements of private      educational  institutions   in  matters   relating   to      suspension,   dismissal,    removal   or   other   wise      termination, of members of the teaching staff on flimsy      grounds without  framing charges  and without giving an      opportunity to  explain. The  said managements are also      flouting the  orders or  instructions  of  Director  of      Public  Instruction   or  the   Universities   or   the      Government in respect of such matters. Having regard to      the above circumstances, the Government have decided to      regulate the service conditions of teachers employed in      the private educational institutions to ensure security      of service  of the  said teachers, and also to exercise      certain control  on such  institutions in the matter of      their   accounts,   etc.,   by   undertaking   suitable      legislation in this regard." 980

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The salient features of the Bill are given as under:-      (i)  to safeguard  the service  conditions of  teaching           staff  in   the  recognised   private  educational           institutions in the matter of suspension, removal,           dismissal and retrenchment;      (ii) to make  it compulsory for the private managements           to obtain  the prior  permission of  the competent           authority before  a teacher is visited with any of           the aforesaid major penalties;     (iii) to  provide  that  the  suspension  of  a  teacher           pending enquiry,  should be  for a  period of  two           months only  after which  the  teacher  should  be           deemed to  have been  restored to duty, unless the           competent authority  extends the suspension period           by another  two months; thereby making it specific           that in  any case  the teachers shall not be under           suspension for more than four months;      (iv) to provide  that no  teacher should  be retrenched           with out  the prior  permission of  the  competent           authority;      (v)  to provide  for payment of salaries to teachers on           the specified  day of the month in such manner and           by  or   through  such   authorities,  officer  or           persons, as may be laid down in the rules;      (vi) to  provide  for  conducting  enquiries  into  the           affairs  of  the  recognised  private  educational           institutions  and   also  for  issue  of  suitable           directions to the managements of such institutions           based on  such enquiry,  which shall be binding on           the managements.      The writ  petitions challenged the validity of sections 3 to  7 of  the Act.  Sections 3  to 7  occur in  Chapter II relating to  terms and conditions of service of teachers. It is necessary to set out the impugned sections :-      "Dismissal, removal  or reduction in rank or suspension of teachers employed in private educational institutions.      3(1). Subject  to any  rule that  may be  made in  this behalf, no  teacher  employed  in  any  private  educational institution shall  he dismissed,  removed or reduced in rank nor shall  his appointment  be other wise terminated, except with the prior approval of the competent authority. 981      Provided that  if any educational management, agency or institution contravenes  the provisions of this sub-section, the teachers affected shall be deemed to be in service.      (2) Where  the proposal to dismiss, remove or reduce in rank or  otherwise terminate  the appointment of any teacher employed  in   any  private   educational   institution   is communicated to  the  competent  authority,  that  authority shall, if  it is  satisfied  that  there  are  adequate  and reasonable  grounds   for  such   proposal,   approve   such dismissal, removal,  reduction in  rank  or  termination  of appointment.      (3a) No  teacher employed  in any  private  educational institution shall be placed under suspension, except when an inquiry  into  the  gross  misconduct  of  such  teacher  is contemplated.      (b) No  such suspension  shall remain in force for more than a  period of two months from the date of suspension and if such  inquiry is  not completed  within that period, such teacher shall,  without prejudice  to the inquiry, be deemed to have been restored as teacher.      Provided that  the competent authority may, for reasons to be  recorded in  writing, extend  the said  period of two months for a further period not exceeding two months, if, in

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the opinion  of such  competent authority, the inquiry could not be  completed within  the said  period of two months for reasons directly attributable to such teacher.      (4) Every  such teacher  as is  placed under suspension under subsection  (3) shall be paid subsistence allowance at such rates  as may  be prescribed  during the  period of his suspension.      Appeal against orders of punishment imposed on teachers employed in private educational institutions.      4. Any  teacher employed  in  any  private  educational institution-           (a)  who is  dismissed, removed or reduced in rank                or whose appointment is otherwise terminated;                or           (b)  whose pay  or  allowances  or  any  of  whose                conditions  of   service   are   altered   or                interpreted  to   his  disadvantage,  by  any                order; may prefer  an appeal against the order to such authority or officer as  may be  prescribed; and different authorities or officers may  be prescribed for different classes of Private educational institutions.      Explanation-In this  section,  the  expression  ’order’ includes any  order  made  on  or  after  the  date  of  the commencement of  this Act  in  any  disciplinary  proceeding which was pending on that date.      Special provision  regarding  appeal  in  certain  past disciplinary cases. 982      5. (1)  If, before the date of the commencement of this Act,  any   teacher  employed  in  any  private  educational institution has been dismissed or removed or reduced in rank or his  appointment has  been otherwise  terminated and  any appeal preferred before that date-      (a)  by  him  against  such  dismissal  or  removal  or reduction in rank or termination; or      (b) by  him or the educational agency against any order made before  that date  in the  appeal referred to in clause (a); is  pending on  that  date,  such  appeal  shall  stand transferred to  the  appellate  authority  prescribed  under section 4      (2) If  any such  appeal as is preferred in sub-section (1) has been disposed of before the date of the commencement of this  Act, the  order made  in any  such appeal  shall be deemed to  be an  order made  under this  Act and shall have effect accordingly.      Retrenchment of teachers.      6. Where  any retrenchment  of any  teacher employed in private  educational   institution  is   rendered  necessary consequent on  any  order  of  the  Government  relating  to education or  course of  instruction or to any other matter, such retrenchment may be affected with the prior approval of the competent authority.      Pay and  allowances of  teachers  employed  in  private educational institution to be paid in the prescribed manner.      7. The  pay and  allowances of  any teacher employed in any private  educational institution  shall be  paid  on  or before such  day of  every month,  in such  manner and by or through  such  authority,  officer  or  person,  as  may  be prescribed." The object  of the  legislation in  general and the impugned provisions  in   particular  is   to  regulate  the  service conditions of  the teachers  and to ensure their security of service.      The  main  attack  on  the  validity  of  the  impugned

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sections is  that the provisions are violative of the rights conferred on  the minorities  to  establish  and  administer their  institutions   under  Arts.   29  and   30   of   the Constitution. The  plea is  that their  right to  administer their institutions is taken away by imposing unjustified and complete control with the authorities specified in the Act.      Before  considering  the  provisions  of  each  of  the sections impugned  it is necessary to refer to the nature of the right  conferred on the minorities. The relevant article is Art.  30 of the Constitution and it is necessary to refer to the  Art. and  the important  decisions rendered  by this Court under the Article. 983      "Right  of   minorities  to  establish  and  administer educational institutions.      Art. 30.  (1) All minorities, whether based on religion or  language,   shall  have   the  right  to  establish  and administer educational institutions of their choice.      (2) The State shall not, in granting aid to educational institutions,   discriminate    against   any    educational institution on the ground that it is under the management of a minority, whether based on religion or language."      The   educational    institutions    established    and administered by the minorities in the exercise of the rights conferred under  Art. 30 may be classified into 3 categories (1) those  which do  not seek either aid or recognition from the State  or affiliation  from the  University;  (2)  those which seek aid and (3) those that seek either recognition or affiliation  but   not  aid.   We  are  not  concerned  with institutions which  do not  seek either  aid or  recognition from the  State or  affiliation  from  the  University.  The institutions which  require aid may again be classified into two classes namely those which are by constitution expressly made eligible  for receiving  grants and  (2) which  are not entitled to any grant by virtue of the express provisions of the Constitution.  Here again  we are not concerned with the first category.  We are only concerned with the institutions which are not entitled to any grant by any express provision in the Constitution.      Articles 28(3),  29(2) and  30(2) deal with educational institutions receiving  aid  out  of  State  Funds.  Certain restrictions are  placed a  obligations cast on institutions recognised by the State or receiving aid Art. 28(3) provides "No   person   attending   any   educational   institutional recognised by  the State or receiving aid out of State funds shall be required to take part in any religious instructions that may  be imparted  in such institutions or to attend any religious worship  that may be conducted in such institution or in  any premises  attached thereto unless such person or, if such  person is  a minor,  his  guardian  has  given  his consent thereto. Under the sub-article a person attending an institution recognised  by the State or receiving aid cannot be  compelled  by  the  institution  to  take  part  in  any religious instruction or to attend religious worship without his consent.  Art. 29(2)  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. Under Art.  29(2) institutions  receiving aid,  a citizen is entitled to seek admission and the institutions is forbidden tn deny admission to a citizen on grounds of 984 religion, race,  caste or  language. While  Art.  28(3)  and 29(2) impose  certain restrictions on institutions receiving aid,  Art.  30(2)  forbids  the  State  from  discriminating

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against any  educational institution  in granting aid on the ground that  it is  under  the  management  of  a  minority, whether based on religion or language. The Constitution does not confer  any right on the institution to receive any aid. It however  forbids the State in granting aid to educational institutions from  discriminating an educational institution on the  ground that it is under the management of a minority whether based on religion or language. This would imply that the State  has right to grant or not to grant aid. It may be that the  State is  not  in  a  position  to  grant  aid  to education institutions.  In such  circumstances  nobody  can force the State to grant aid. But if the State grants aid to educational   institutions   there   should   not   be   any discrimination.  It  is  open  to  the  State  to  prescribe relevant conditions  and insist  on  their  being  fulfilled before  any   institution  becomes   entitled  to   aid.  No institution which  fails to conform to the requirements thus validly prescribed would be entitled to any aid. Educational institutions receiving  aid whether  they  are  managed  and administered by  minority or  not have  to  conform  to  the requirements prescribed  by the State in order to enable the institutions to  receive aid.  The  requirements  prescribed shall not  be discriminatory  on the ground that it is under the management  of a  minority whether  based on religion or language. The  character of  the minority institution should not also be destroyed. The right of the State to ensure that its funds are properly spent cannot be denied.      In Re:  Kerala Education Bill, at p. 1062 Chief Justice Das ruled  that "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."      The learned Chief Justice proceeded to observe :-           "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      institution to be aided." The scope  of the reasonable regulations that can be imposed is clearly  explained by the question framed by the Attorney General and  the answer  furnished by  the Court at p. 1063. The State cannot say "I 985 have money  and I  shall not  give you  any aid  unless  you surrender to  me your  right  of  administration"  (emphasis supplied) The  Court held  that regulations prescribed under the various  clauses except  sub-clause (5)  of Cl.  3 which made the  educational institution  subject to clauses 14 and 15, valid.      The Kerala  Education Bill  which was  referred to this Court  for  the  n  purpose  of  opinion  contained  several clauses. A  summary of  the clauses is given in the judgment from pages  1023 to 1030 of the Reports, Clauses 6, 7 9, 10, 11, 12,  14, 15  and 20  relate to  the management  of aided schools. The Court expressed its view that the provisions in clauses 7,  10, 11(1), 12(1), (2), (3) and (S) may easily be regarded as  reasonable regulations  or conditions  for  the grant of  aid. (Vide  p. 1064).  Clause 7 is extracted at p. 1025. It  confers powers  enumerated in  the clause  on  the managers. Clause 10 requires the Government to prescribe the qualifications to be possessed by persons for appointment as

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teachers in  Government Schools and in private schools which by the  definition means  aided or  recognised schools.  The State Public  Service  Commission  is  empowered  to  select candidates for  appointment as D. teachers in Government and aided schools  according to  the procedure  laid down in cl. 11. Clause  12 prescribes  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 provides that  the scales  of pay applicable to the teachers of Government  schools shall  apply to  all the  teachers of aided  schools   whether  appointed   before  or  after  the commencement  OF   this  clause.  Rules  applicable  to  the teachers of  the Government  schools arc  also to  apply  to certain teachers  of aided  schools as  mentioned in sub-cl. (2). Sub-cl.  (4) provided  that no  teachers  of  an  aided school shall  be dismissed,  removed or  reduced in  rank or suspended by  the Manager  without the  previous sanction of the authorised officer. With regard to sub-cl. 12(1) (2) and (3) which  related to  conditions of service and security of tenure, the  Court held  that  the  purpose  may  easily  be regarded as  reasonable regulations  or conditions for grant of the  aid. It  was submitted that clauses 9, 11(2) and (4) went beyond  the permissible  limit as  by taking  over  the collections of  fees, etc.  and by  undertaking to  pay  the salaries of  the teachers  and other state the Government is in reality  confiscating the  school fund  and under cl. l l the power  of management is taken away by providing that the appointment of  a teacher  should be  out of the panel to be prepared by  the Public Service Commission. Similarly it was submitted  that   by  requiring  previous  sanction  by  the authorised officer before dismissal, removal or reduction in rank of  a teacher,  the H.  right to  administer was  taken away. Chief  Justice Das observed at p. 1064 of the Reports: "These are no doubt serious inroads on the right 986 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 clauses  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." It is clear  that  so  far  as  aided  institution  are  concerned conditions similar  to  those  that  are  mentioned  can  be validly imposed on the institutions. The only prohibiting is that the  conditions should  not be  of such  a nature as to deprive the  character of the minority institutions in their exercise  of  the  rights  conferred  on  them  as  minority institutions. So  long as there are rules for the purpose of maintaining the  excellence of  educational institutions and not  discriminating   against   the   minority   educational institutions they will be valid.      The  decisions   rendered  subsequent   to  the  Kerala Education Bill  case may  now be referred to see how for the views expressed had been modified. In Rev. Sidhajbhai Sabhai & Ors. v. State of Bombay & Anr.(1) a Bench of 6 Judges held that the order of the Government directing that 80% of seats in the  training colleges  should be reserved for Government nominee with  a threat  that if  the  order  was  disobeyed, grant and  recognition would  be withdrawn. was invalid. The Court laid down that reasonable restrictions in the interest of  the   efficiency  of  instruction,  discipline,  health,

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sanitation and  the like may be imposed as those regulations will not  be restrictions  on the  substance  of  the  right guaranteed, for  they secured  the proper functioning of the institution in  educational matters. The Court held that "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 institutions, the right guaranteed by Art. 30(l) will be but a "teasing  illusion", a  promise of  unreality. Regulations which may  lawfully be  imposed  either  by  legislative  or executive action  as a  condition of  receiving grant  or of recognition must be directed to making the institution while retaining its  character as  a minority institution elective as an  educational institution.  The dual test prescribed is the test  of reasonableness  and the test that is regulative of the  educational character  of  the  institution  and  is conducive to  making the institution an effective vehicle of the education  of the  minority community or the persons who resort to  it. The requirements of reservation of 80% of the seats will 987 destroy the  right to  management as  a minority institution and  as   such  cannot  be  imposed  even  in  the  case  of institutions receiving aid. Conditions of such a nature that would result  in  surrender  of  the  fundamental  right  to administer  cannot   be  imposed.  After  referring  to  the decision in  the Kerala  Educational Bill  case,  the  Court observed that  it did  not decide that a regulation would be deemed unreasonable  only if  it was  totally destructive of the right  of the  minority to  administer n the educational institution. This  view was  affirmed in  the  St.  Xavier’s College case  [1975] 1  SCR 173. The test laid down requires that the  regulation must  be for regulating the educational institution for the minority committee as well other persons who resort to it. (emphasis supplied)      The case of Rev. Father W. Proost and ors. v. The State of Bihar  and Ors.(1) relates to affiliation. This Court was considering the  validity of s. 48-A of the Bihar University Act. Under  s. 48-A  a  University  Service  Commission  for affiliated Colleges was established. It was provided amongst others that  subject to  the  approval  of  the  University, appointments, dismissals,  removals, termination  of service or reduction  in rank  of teachers  of an affiliated college not belonging  to the  State Government shall be made by the governing body  of the  College on the recommendation of the Commission. While the petition was pending before this Court the Governor  of Bihar promulgated an ordinance by inserting Sec.  48-B   which   exempted   Colleges   established   and administered by  the minorities  from the  operation of  the provisions of  clauses (6),  (7), (8), (9), (10) and (11) of s. 48-A.  After the  introduction of s. 48-B the petitioners before this  Court claimed  protection  under  S.  48-B  and submitted that affiliated Colleges established by minorities are exempt  from the operation of the impugned provisions of s. 48-A.  It may  be noted  that under s. 48-B the governing body of  an affiliated  college established  by  a  minority shall  be   entitled  to   make  appointments,   dismissals, removals, termination  of service  or reduction  in rank  of teachers or  take other  disciplinary action subject only to the approval  of the  Commission and  the Syndicate of the l university. The petitioners did not challenge the provisions which  provided  that  appointments,  dismissals,  removals, termination of  service and reduction in rank of teachers or other disciplinary  measures will be subject to the approval

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of the  Commission and the Syndicate of the University. What was objected  to was  the provisions  under  s.  48-A  which established  an   University  Service  Commission  on  whose recommendations alone  appointments,  dismissals,  removals, terminations of  service or reduction in rank of teachers of an affiliated college 988 can be effected. A provision requiring prior approval of the Commission or Syndicate was not challenged as objectionable.      In State of Kerala v. Very Rev. Mother Province(1), the constitutional   validity   of   certain   provisions   were challenged on  the ground  that  they  interfered  with  the rights of  the minority  institutions. The Kerala University Act, 1979  was passed to reorganise the University of Kerala with a  view to  establishing a  teaching,  residential  and affiliating University  for the  Southern Districts  of  the State of  Kerala. Ss.  48 and  49 dealt  with the  Governing Bodies of  private colleges.  The Educational  Agency  of  a private College  was required to set up a Governing Body for a private College or a managing council for private-colleges under one corporate management. The section provided for the composition of  two bodies  so as to include Principal:; and Managers of private colleges, nominees of the University and Government as  well as  elected representatives of teachers. Sub-s. (2)  provided that  the new  bodies would  be  having corporate perpetual  succession and  the members  would hold office for  four years.  Sub-section cast  a duty on the new governing body  or the  managing council  to administer  the private college  or colleges  in accordance  with  the  pro- visions of  the Act.  The provisions  of s. 53, sub-ss. (1), (2),  (3)   and  (9)  conferred  on  the  Syndicate  of  the University power  to veto  the  decision  of  the  Governing Council. A  right of  appeal was  provided  for  any  person aggrieved.  Section  56  conferred  ultimate  power  on  the University and  the Syndicate  in  disciplinary  matters  in respect of teachers. This Court held that sub-s. (2) and (4) of Ss.  48 and  49 as ultra vires. The Court agreed that the High Court  was right in declaring that sub-ss. (1) and (2), (9) and  of s.  53, sub-ss.  (.2) and  (4) of s. 56 as ultra vires.      In D.A.V.  College etc. v. State of Punjab & ors(2) the validity of  cl. 18  which  required  that  non-governmental Colleges shall comply with the requirements laid down in the ordinances governing service of teachers in non-governmental Colleges as  may be framed by the University was considered. Clause 18  so far  as  it  is  applicable  to  the  minority institutions  empowered   the  University  to  prescribe  by regulation  governing  the  service  of  teachers  which  is enacted in  the larger interest of the institution to ensure their efficiency and excellence. Tho Court held: "It may for instance  issue   an  ordinance   in  respect   of  age   of superannuation  or   prescribe  minimum  qualifications  for teachers  to   be  employed   by  such  institutions  either generally or in particular sub- 989 jects. Uniformity  in the  conditions of service and conduct of teachers  A in all non-Government Colleges would make for harmony and avoid frustration."      A reading  of the  decisions referred  to above make it clear that  while the  right to  establish and  administer a minority institution cannot be interfered with restrictions, by way  of regulations  for the  purpose of  maintaining the educational standards  of the  institution  can  be  validly imposed. For  maintaining the  educational standard  of  the institution as  a whole it is necessary to ensure that it is

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properly   staffed.    Conditions   imposing   the   minimum qualifications of  the staff,  their pay and other benefits, their service  conditions, the imposition of punishment will all be  covered and  regulations of  such a nature have been held to  be valid.  In the case of institutions that receive aid it  is the  duty of the Government who grants aid to see that the funds are properly utilised. As the Government pays for the  staff it  is their  bounden duty  to see that well- qualified  persons   are  selected   their  pay   and  other emoluments are guaranteed and service conditions secured. So far as  the institutions  receiving aid are concerned if the regulations are  made for  the purpose  of safeguarding  the rights of  the staff  the validity  cannot be  questioned as long as  the regulations  do not  discriminate the  minority institution on the ground of religion or language.      The minority  institutions have no fundamental right to demand recognition  by  the  State  or  affiliation  by  the University but  as recognition  and affiliation is necessary for the  effective exercise  of  the  fundamental  right  of minorities to  establish and  administer their institutions, they  are   entitled  to   recognition  and  affiliation  if reasonable conditions  that are imposed by the Government or the  University   relevant  for   the  purpose  of  granting recognition  or   affiliation  are   complied  with.  Before granting recognition or affiliation it is necessary that the concerned Government or the University is satisfied that the institution keeps  up with the required minimum standard. As has been  held by  Das C.J.,  "Right  to  administer  cannot obviously include  the right  to mal-administer"  and in the words of  Shah, J.  "The  right  is  subject  to  reasonable restrictions in  the interest  of efficiency of instruction, discipline,  health,   sanitation  and  the  like."  Justice Jaganmohan Reddy  has made  it clear  in upholding cl. 18 of the  Guru   Nanak  University,   Amritsar  Act,   1961  that regulations  relating   to  the   recruitment  and   service conditions of the teachers of the institution are valid.      The decision  of 9  Judges’ Bench  in The Ahmedabad St. Xaviers College  Society &  Anr. etc.  v. State of Gujarat & Anr.(’) may now 990 be considered.  All the  9 Judges  were unanimous  that  the right to  aid or recognition was not a fundamental right but that aid  or recognition  cannot be  offered  on  conditions which would  involve a  surrender of  those rights.  But the rights  of   recognition  and  affiliation  are  subject  to regulations which  are  necessary  for  maintenance  of  the educational institutions.  In the  St. Xaviers  College case (supra), S.  33A(1) was  challenged. It  provided that every college was  to be  under the management of a governing body which must  include a  representative of  the University and representatives of teachers, non-teaching staff and students of the  college. Eight  of the  nine Judges held that S. 33A (1)(a) violated  Art. 30(l)  and could  not  be  applied  to minority institutions.  This Court  in a subsequent decision in G.F.  College Shahajahanpur  v. University  of  Agra  and Anr.(l) held that it would not be unconstitutional to direct that the  Principal and  the Senior Teacher appointed by the Governing body  itself be taken into the managing committee. The Court  in St.  Xavier’s College case also considered the validity of  S. 51-A(l)  (a), (2)  (a)  and  51-A(1)  (b)  . Section 51-A(1)(a) and (2)(a) provided that no member of the teaching?, other  academic and  non-teaching staff was to be dismissed, removed  or  reduced  in  rank  except  after  an inquiry in which he had been informed of the charges against him and  had been  given a  reasonable opportunity  of being

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heard and making a representation on the penalty proposed to be inflicted.  No termination  of service  not amounting  to dismissal or removal was to be valid unless, such member had been given a reasonable opportunity of showing cause against the proposed  termination. The  two clauses  were held to be valid, as  being reasonable. However, the Court held that S. 51-A(l)(a) and  (2)(b) as  violative of  Art. 30(l). Section 51-A(l)(b) provided  that the penalty to be inflicted on him must be approved by the Vice-Chancellor or any other officer of the  University authorised by the Vice-Chancellor in this behalf.  Similarly,  S.  51-A(2)  (b)  provided  that  "such termination  is  approved  by  the  Vice-Chancellor  or  any officer of  the University authorised by the Vice-Chancellor in this  behalf." Section  51-A(1) (b) required the approval of the  Vice-Chancellor, or other officer authorised by him. for the  penalty to  be inflicted  under sub-s l (a), and S. 51-A(2) (b) required similar approval for the termination of service under  sub-s. (2)  (a). The  Court also held that S. 52-A which  required that  any dispute between the governing body and any member of the teaching, other academic and non- teaching staff  of an affiliated college? connected with the terms of  service of  such member.  must be  referred  to  a Tribunal  of  Arbitration  consisting  of  one  member  each appointed by the governing body and by the member of the 991 staff and an umpire appointed by the Vice-Chancellor was not valid. A  Seven out  of 9  Judges held that S. 52-A violated Art. 30(l) and could not be applied to minority institution.      Minority institutions  seeking affiliation will have to follow statutory  measures intended  to regulate the conduct of the educational institution. Ray, C.J. p. 193 held :-           "With regard to affiliation a minority institution      must   follow   the   statutory   measures   regulating      educational standards  and  efficiency  the  prescribed      courses of  study,  courses  of  instructions  and  the      principles  regarding  the  qualification  of  teachers      educational qualifications  for entry  of students into      educational   institutions   etc.   When   a   minority      institution applies  to a  University to be affiliated,      it expresses its choice to participate in the system of      general education and courses of instruction prescribed      by that  University: *  * *  *  *  *  There  fore,  the      measures which  will regulate  the courses of study the      qualifications  and   appointment  of   teachers,   the      condition of  employment of  teachers,* * * * * * * are      all comprised  in matters  germane  to  affiliation  of      minority institutions.  These regulatory  measures  for      affiliation   arc   for   uniformity   efficiency   and      excellence in  educational] courses  and do not violate      any fundamental  right  of  the  minority  institutions      under Art. 30" (emphasis supplied) Ray C.J.  held that  s. 51A(1)  (b) and S. 51A(2) (b) is not applicable to  minority institutions as they "cannot be said to be  permissive regulatory  measures  in  as  much  as  it confers arbitrary  power on the Vice-Chancellor to take away the right of administration of the minority institutions ."      Agreeing with  the view of the Chief Justice, regarding his conclusion  about S.  51A(1) (a) and (2) (b), Khanna, J. at p. 243 observed :           "Although disciplinary  control over  the teachers      of a minority educational institution would be with the      governing council,  regulations in  my opinion,  can be      made for  ensuring proper  conditions of service of the      teachers and  for securing  a  fair  procedure  in  the      matter of  disciplinary action  against  the  teachers.

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    Such provisions  which are calculated to safe guard the      interest of teachers would result in security of tenure      and thus  inevitable attract  competent persons for the      posts of  teachers. * * * * * Regulations made for this      9-138 SCI/80 992      purpose should be considered to be ill the interests of      minority educational  institutions  and  as  such  they      would not violate Art. 30(1)". (emphasis supplied) Regarding S.  51A, the  learned  Judge  while  holding  that provisions under.  Cl. (a)  of sub-ss.  (1) &  (2) of s. 51A which make  provision R  for giving a reasonable opportunity of showing  cause against  a penalty  to be  proposed  on  a member of  the staff  would be  valid. Cl. (b) of the sub-s. which gives  a power  to the  Vice-Chancellor and officer of the University  authorised by  him to veto the action of the managing body  of an  educational  institution  in  awarding punishment to  a member  of the  staff, interferes  with the disciplinary control of the managing body over its teachers. He was  of the  view that  the power  conferred on the Vice- Chancellor or  other officer is a blanket power and no guide lines were  laid down  for the exercise of that power and it is not  provided that the approval is to be withheld only in case  the   dismissal,  removal,   reduction  in   rank   or termination of  service is mala fide by way of victimisation or other similar cause. The conferment of such blanket power on the  Vice-Chancellor or  other  officers  authorised  for vetoing the  disciplinary action  of the  managing body of a educational institutional  made serious inroads on the right of  the   managing  body   to  administer   an   educational institution.      Mathew, J.  in dealing  with S. 51A(1)(a) and (b) at p. 273 observed:-           The  exact   scope  of  the  power  of  the  Vice-      Chancellor  or   of  the   officer  of  the  University      authorised by  him in this sub section is not clear. If      the  purpose  of  the  approval  is  to  see  that  the      provisions of  sub-section 51A(1)(a) are complied with,      there can possibly be no objection in lodging the power      of approval even in nominee of the Vice-Chancellor. But      an uncanalised  power without any guideline to withhold      approval would  be a direct abridgement of the right of      the management  to  dismiss  or  remove  a  teacher  or      inflict any other penalty after conducting an enquiry."      (emphasis sup plied)      The learned Judge proceeded to observe:           "Of course it is open to the State in the exercise      of its  regulatory power  to require  that  before  the      service of a teacher are terminated, he should be given      opportunity of  being heard  in  his  defence.  But  to      require that  for terminating the services of a teacher      after 993      an enquiry  has been conducted, the management . should      have the  approval of  an outside agency like the Vice-      Chancellor or of his nominee would be an abridgement of      its right to administer the educational institution. No      guidelines are provided by the legislature to the Vice-      Chancellor for the exercise of his power. The fact that      the power  can be  delegated by  the Vice-Chancellor to      any officer  of the  university means  that  any  petty      officer to  whom the  power is delegated can exercise a      general power of veto. There is no obligation under the      sub-sections 1(b)  and 2(b) that the Vice-Chancellor or      his nominee  should give any reason for disapproval. As

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    we said  a blanket  power with-  out any  guideline  to      disapprove the action of the management would certainly      encroach upon the right of the management to dismiss or      terminate the services of teacher after an enquiry".      The extracts  from the  judgments of Ray, J. Khanna, J. and Mathew,  J.  show  that  regulations  can  be  made  for ensuring the  pro- per conditions of service of the teachers and  for   securing  fair   procedure  in   the  matter   of disciplinary action  against them. Prescribing uniformity in the conditions  of service  and conduct  of teachers  in all non-governmental  colleges   would  promote  harmony,  avoid frustration and  is permissible.  It is  thus seen  that the university  or   the  authority   granting  recognition  can prescribe the  conditions of  service of  teachers providing them with security of service. The rules may require that no Principal  of  the  teaching  or  non-teaching  staff  of  a recognised or  a approved  institution shall  be  dismissed, removed or  reduced in rank except after an enquiry in which he has  been informed  the charges  against him  and given a reasonable opportunity  of being  heard in  respect of those charges and making representation on any penalty proposed to be inflicted on him. The Government which grants recognition or the  University which  gives affiliation  are entitled to sec that  proper conditions  of service  of the teachers are ensured and  fair procedure  is observed by the institutions when disciplinary  action is  taken  against  them.  If  the regulations require  the approval by the competent authority for safeguarding the rights of the teachers and for securing the procedure  there could  be no  objection. Such authority can  also   interfere  with  the  decision  of  the  private institutions when  the punishment is awarded mala fide or by way of victimisation or for similar causes.      In Kerala  Education Bill, 1957 Cl. 14(4) provided that no teacher of an aided school shall be dismissed, removed or reduced in rank or 994 suspended by  the Manager  without the  previous sanction of the authorised officer. This requirement of sanction related to schools  that  sought  aid  from  the  Government.  While upholding the  validity of  cl. 14,  Das C.J.  Observed that there could  be no  doubt that  these are serious inroads in the right  of the  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  clauses   9,  11   (2)  and  12  (4)  as  permissible regulations the  State may  impose on  the minorities  as  a condition   for    granting   aid   to   their   educational institutions. Ray  C.J. in St. Xavier College case, observed that though  the opinion  was given in Kerala Education Bill on an  order of  reference under  Art. 143 is not binding on this court  in any subsequent matter wherein a concrete case the  infringement   of  the   rights  under  any  analogous; provision may be called in question, it is entitled to great weight. Ray  C.J. proceeded  to observe that nonetheless the exposition of  the various  facets of  the rights under Art. 29(1) and  30 by  Das, C.J.  speaking for the majority, with utmost clarity,  great perspicuity  and wisdom  has been the text from  which Court  has  drawn  its  sustenance  in  the subsequent decisions.  To the  extent that  this  Court  has applied these  principles to  concrete cases there can be no question of  there being  any conflict  with what  has  been

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observed by Das, C.J. Ray, C.J. was of the view that similar provisions were  held to  be invalid as they fell with S. 48 and 49 of the Kerala Education Act, which was similar to cl. 12(4) was  held invalid.  Mathew, J.  was of  the view  that though in  the Kerala  Education Bill case, the Court upheld the provisions  similar to those in S. 51A(1) (b) and 51 (A) (2) (b),  the subsequent  decisions of  this Court  left  no doubt that  the.  requirement  of  subsequent  approval  for dismissing or  terminating the services of teachers would be offending Art. 30. (Learned Judge referred to D.A.V. College case).      In the  Kerala Education Act case (supra), the validity of sub-ss.  2 &  4 of  S. 48,  S. 49, S. 53, Sub-ss. 1-9 and sub-ss. 2 and 4 of S. 56 were challenged. Hidayatullah, C.J. speaking for  the Court  observed that after the erection of the Governing  Body of the Managing Council, the founders or even  the   minority  community   had   no   hand   in   the administration. The two bodies were vested with the complete administration of the institution and were not answerable to the founders  in this  respect. Sub-ss. (2), (4) and (5) and (6) of ss. 48 and 49 clearly 995 vest the  management and  administration in the hands of the two bodies  with mandates  from the university. Coupled with this is  the power  of the Vice Chancellor and the Syndicate under sub-sections  (2) and  (4) of  S. 56 to have the final say in  respect  of  disciplinary  proceedings  against  the teachers. In striking down clauses (2) and (4) of S. 56, the Learned Chief  Justice at  p. 746 stated that the result was that sub-ss.  (2) and  (4) of  S. 56 are ultra vires as they fail with  ss. 48  and 49.  The Scheme of the Act was that a Governing Body  or Managing  Council was  to be  set up  for private colleges and it was provided that the composition of the bodies  were to  include Principals, Managers of private Colleges and  nominees of  the University  and Government as well as  elected representatives  of the teachers. This out- side body  was entrusted  with the administration. These two sections 48  and 49  which provide for administration by the Governing Body  or the Managing Council was held to be ultra vires. Apart  from it,  the powers  were  conferred  on  the Syndicate of  the University  to veto  the decision  of  the Governing Council.  Regarding disciplinary  matters,  S.  56 conferred ultimate power on the University and the Syndicate in respect  of teachers.  As the  power to take disciplinary action was  taken away  from the  Private  or  the  Minority Institutions and  conferred on  the Governing  Body  or  the Managing Council  constituted under  the Act and a provision was made  requiring  the  previous  sanction  on  the  Vice- Chancellor  and   provided  an  unrestricted  right  to  the Syndicate. It will be noted that the Chief Justice found Ss. 56(2) and  (4) ultra vires as they had to fail alongwith Ss. 48 and  49 which  deprived the  institution of  the right to manage its own affairs.      In the  case of  D.A.V.  College  v.  State  of  Punjab (supra), cl.  17 provided that the staff initially appointed shall be  approved by the Vice-Chancellor and all subsequent changes shall  be  reported  to  the  University  for  Vice- Chancellor’s approval.  S. 17  does not,  in fact, confer on the Vice-Chancellor  the  power  to  veto  the  disciplinary action taken by the private institution.      In St.  Xavier College case, also the management of the institution was completely taken away under Ss. 40 and 41 of the Act.  The Private  Institution  was  required  to  be  a constituent College of the University and was to be governed by the  Statutes that  may be  framed by the University. Ss.

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31A (1) (a) set up a Governing Body which to include amongst its  Principals   the  representatives   of  the  University nominated by  the Vice-Chancellor and representatives of the reachers of  the non-teaching  staff  and  students  of  the college. In the circumstances, the Court held that the right to administer and to conduct the affairs of the institution, were taken away from the institution. The 996 disciplinary proceedings  which were to be conducted against the teachers  was required  to obtain  approval of the Vice- Chancellor or any other officer of the University authorised by the  Vice-Chancellor. Apart  from the  objection  to  the power conferred  on the  Vice-Chancellor to  nominate any of its subordinate,  the power conferred on the Vice-Chancellor was found  to be  unconstitutional as it was a blanket power unguided and uncanalised.      In Lilly  Kurian v. Sr. Lewina and ors., the provisions of ordinance  33, Chapter 67 of the ordinances framed by the Syndicate of  the University  of Kerala,  under S. 19 (1) of the Kerala  University Act,  1957 was  challenged. S. 33 (1) provided that the management may at any time place a teacher under suspension  where a  disciplinary proceedings  against him  is  contemplated  or  is  pending.  He  shall  be  paid subsistence allowance and other allowances by the Management during the  period of  suspension at  such rates  as may  he specified by  the university.  The teacher  shall  have  the right to appeal against the order of suspension to the Vice- Chancellor of  the University  within a period of two months from the  date on which he receives the order of suspension. Cl. 4  of ordinance  33 provided  that the  teacher shall be entitled to  appeal to the Vice-Chancellor of the University against any order passed by the Management in respect of the penalties referred  to in items (ii) to (v). Ordinance 33(4) conferred a  right of  appeal on  the teacher  to prefer  an appeal  against   the  order  of  Management  to  the  Vice- Chancellor in  respect of  the  penalties  imposed  on  him. Ordinances 33(1) and 33(4) were struck down by this Court on the ground that the conferment of right of appeal an outside authority like  the Vice-Chancellor  under  ordinance  33(4) took  away   the  disciplinary   power   of   the   minority institution. The Vice-Chancellor was given power to veto the disciplinary control  which amounted  to clear  interference with disciplinary  power of the minority institution. It was found  to  be  a  fetter  on  the  right  of  administration conferred under  Art. 30(t).  The main  ground on  which the powers were  found to  be violative  of the  right conferred under Art.  30 was  that the  right of  appeal was  provided without defining  the scope  of the  appellate authority. In the cases  referred to, namely, Very Rev. Mother Provincial, D.A.V. College and Lilly Kurian, the powers conferred on the Vice-Chancellor were  held to be blanket power, unguided and uncanalised. The  back ground  of the decisions was that the minority  institutions   were  deprived  of  the  powers  of administration  by   forming  a   body  which  deprived  the institution of all its powers. In such circumstances, it was found that  the power  was uncanalised.  In the case of Rev. Father W. Proost and 997 Ors. (supra),  S. 48 was enacted providing that the minority institution  shall   be  entitled   to  make   appointments, dismissal, removal,  termination of service and reduction in rank of  teachers, subject  only  to  the  approval  of  the Syndicate of  the University,  which was not challenged. The institution claimed  exemption under  s.  48B.  Bearing  the facts of  the cases  set out  above, we have to consider the

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impugned Act  and determine  whether the impugned provisions infringe the  rights conferred  on the minority institutions under Art. 30.      The statements  of object  and reasons  and the salient features of  the bill  as stated  in the objects and reasons and the  impugned sections  have been set out in full at the beginning  of   the  judgment.   The  main   object  of  the legislation is  to regulate  the service  conditions of  the teachers in  the private  educational institutions  and  for ensuring the  security of  service of  the teachers.  It  is further  stated  that  private  institution  were  punishing teachers on  flimsy  grounds  without  framing  charges  and without giving an opportunity to explain. In the preamble it is also  stated that  the Act  is to  provide for  terms and conditions of  service of  teachers and  to control  of  the recognised private  educational institution. S. 3 of the Act provides that no teacher employed in any private educational institution shall  be dismissed,  removed or reduced in rank nor shall  his appointment  be otherwise  terminated  except with the prior approval of the competent authority. S. 3 (2) will have  to be read alongwith S. 3 (1) which provides that when a  proposal to  dismiss, remove  or reduced  in rank or otherwise terminate  the appointment of any teacher employed in any  private educational  institution is  communicated to the competent authority, the competent authority shall if it is satisfied  that there are adequate and reasonable grounds for  such   proposal,  approve   such  dismissal,   removal, reduction in rank or termination of appointment. The Proviso to S. 3(1) states that if any educational management, agency or institution  contravenes  the  provisions  of  this  sub- section, the  teacher affected  shall be  deemed  to  be  in service. This  section was  challenged as conferring a power of taking  disciplinary proceedings  on an outside authority and as  such it  should be  held as  violative of the rights conferred on  the minority  institutions. If  the  power  of approval conferred  on the  competent authority is a blanket power uncanalised and without guidelines, it will have to be held as invalid.      The question,  therefore, arises  whether  the  section provides sufficient guidelines for the exercise of the power by the  competent authority.  In the State of West Bengal v. Subodh Gopal Bose and ors. it was held that the statement of objects and reasons could be referred to 998 for the  limited  purpose  of  ascertaining  the  conditions prevalent at the time which actuated the sponsor of the bill to introduce the same and the extent of urgency and the evil which he  sought to remedy since these matters were relevant for deciding whether the restrictions were reasonable within the meaning of Art. 19(2) to (6). The object and reasons for the legislation  make it very clear that the legislation was intended to  regulate the  service  conditions  of  teachers employed in  private educational  institutions and  for  the security of  service of  the said  teachers. The preamble is also an  aid in  construing the  provisions of  the Act. The House of  Lords  in  Att.  Gen.  v.  H.R.H.  Prince  Earnest Augustus of  Hanover, held  that when there is a preamble it is generally  in  its  recitals  that  the  mischief  to  be remedied and  the scope  of the  Act are  described. It  is, therefore, permissible  to have  recourse to it as an aid to construing the enacting provisions. The preamble states that the Act  it to  provide for  terms and service conditions of teachers. If  the power conferred under S. 3 (1) and s. 3(2) is  restricted  to  regulating  the  service  conditions  of teachers and  for ensuring  their security  of service,  the

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power conferred  would be valid. It was submitted by Mr. Lal Narain Sinha the learned counsel for the appellants that the power is  uncanalised because  the approval  can be withheld even on  merits which would in fact deprive the disciplinary powers of the minority institutions.      It is  a well  settled rule  that in  interpreting  the provisions of  a statute,  the court  will presume  that the legislation  was   intended  to  be  intra  vires  and  also reasonable. The  rule followed  is that the section ought to be interpreted consistent with the presumption which imputes to the  legislature an  intention  of  limiting  the  direct operation  of   its  enactment   to  the   extent  that   is permissible. Maxwell  on interpretation of Statutes, Twelfth Edn., P.  109 under  the Caption: "Restriction of operation" States:-           "Sometimes to  keep the  Act within  the limits of      its scope,  and not  to disturb the existing law beyond      what the  object requires, it is construed as operative      between certain  persons, or  in certain circumstances,      or for  certain purposes only, even though the language      expresses no  such  circumscription  of  the  field  of      operation." The following passage in Bidie v. General Accident, Fire and Life  Assurance  Corporation  was  cited  with  approval  in Kesavananda Bharti v. State of Kerala : 999           "The first  thing one  has to  do,  I  venture  to      think, in  construing words  in a  section of an Act of      Parliament is  not to  take those words in vacue, so to      speak, and  attribute to  them what is sometimes called      their natural  or ordinary  meaning. Few  words in  the      English language  have a natural or ordinary meaning in      the sense  that they must be so read that their meaning      is entirely independent of their context. The method of      construing statutes  that  I  prefer  is  not  to  take      particular words  and attribute to them a sort of prima      facie meaning  which may have to displace or modify. It      is to  read the  statute as a whole and ask oneself the      question: "In  this state, in this context, relating to      this subject-matter,  what is  the true meaning of that      word ?" According to  Holmes, J.  in Towne  v. Eigner, a word is not crystal, transparent and unchanged; it is the skin of living thought and may vary greatly in colour and content according to the  circumstances and  the time  in which  it  is  used. Gwyer, J. in Central Provinces and Berar Act, held:      "A grant  of the  power in  general terms,  standing by      itself, would no doubt be construed in the wider sense;      but it  may be qualified by other express provisions in      the same  enactment, by the implication of the context,      and even  by the  considerations arising  out  of  what      appears to be the general scheme of the Act." To the  same effect  are the  observations of  this Court in Kedar Nath Singh v. State of Bihar :           "It  is  well  settled  that  in  interpreting  an      enactment the  Court should  have regard  not merely to      the literal  meaning of  the words  used, but also take      into  consideration   the  antecedent  history  of  the      legislation, its  purpose and  the mischief it seeks to      suppress. (The Bengal Immunity Co. Ltd. v. The State of      Bihar [1955]  2 S.C.R.  603 and R.M.D. Chamaurbaugwalla      v. The  Union of  India [1957]  S.C.R. 930  cited  with      approval." This Court  has in  several cases  adopted the  principle of reading down the provisions of the Statute. The reading down

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of  a  provision  of  a  statute  puts  into  operation  the principle that so far as it is reason- 1000 ably possible  to do so, the legislation should be construed as being  within its power. It has the principle effect that where an Act. is expressed in language of a generality which makes it  capable, if read literally, of applying to matters beyond  the  relevant  legislative  power,  the  Court  will construe it  in a  more limits sense so as to keep it within power.      Applying the  principles laid  down in  the cases cited above, the  power conferred  under S.  3 (1)  and (2) of the impugned Act  will have  to be  construed. This Court has in St. Xavier’s  College case  (supra) held that the provisions of S.  51A (1)  of the  impugned  Act  in  that  case  which provided that  no member  of the  other  academic  and  non- teaching staff  of an  affiliated college  and recognised or approved institution  shall  be  dismissed,  or  removed  or reduced in rank except after an enquiry in which he has been informed of  the charges  against him and given a reasonable opportunity of  being heard  in respect of those charges and until he  has been  given a reasonable opportunity of making representation on  any such penalty proposed to be inflicted on him,  as a  valid condition.  Mathew, J. affirmed that if the purpose of the approval is to see that the provisions of sub-sec. 51  (A)  (1)  (a)  are  complied  with,  there  can possibly be  no objection  in lodging  the power of approval even in  nominee of the Vice-Chancellor. Khanna, J. has held that if  the power  is confined  only to cases of dismissal, removal or  reduction in  rank or  termination of service as mala fide  and by  way of  victimisation, the power would be valid.  Regarding   the  power   of  interference  with  the conclusion of  a domestic  tribunal in disciplinary matters, this Court has held that the decision can be interfered with if  there   is  want   of  good   faith  or  when  there  is victimisation or  when the  management has  been  guilty  of basic error or violation of principles of natural justice or when  the  material  findings  are  completely  baseless  or perverse (Indian  Iron and  Steel Co. Ltd. v. Their Workmen. It has  also been held that the authority interfering is not a Court of Appeal and cannot substitute its own judgment.      The impugned  legislation was  passed in the year 1975. It must  be presumed  that the  legislature was conscious of the limitations  of the  power which the competent authority can have  in granting or withholding approval in the case of disciplinary proceedings  conducted by  private institution. cl. 12(4)  of the  Kerala Education Bill (supra) was held to be valid  on  the  ground  that  it  was  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. If the power is 1001 constrused as  conferring  unrestricted  power  and  if  the provisions are  held invalid, it will result in considerable mischief and  would result  in depriving the protection that is available to the poor teacher regarding their security of service. The  legislation was  for the  specific purpose  of regulating the  service conditions and providing security of service and  for preventing  teachers from being punished on flimsy grounds without framing charges and without giving an opportunity to  explain. lt  is very  different  from  other cases, in  which the  legislation was aimed at depriving the minority institutions of all its powers. The only aim of the impugned legislation  is to  provide security of service. As pointed out  there are  sufficient guidelines in the objects

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and reasons  in the  legislation as well as in the preamble. In the  circumstances, it  is not only reasonable but proper that a  restricted meaning  is given  to the  power of prior approval conferred on the competent authority under s.3.      S.3(1) and  (2) will  have to  be  read  together.  The procedure  contemplated   is  that   when  the   educational institution proposes to dismiss, remove or reduce in rank or otherwise terminate  the appointment  of  any    teacher  it should communicate  to the competent authority its proposal. The latter  part  of  S.3(2)  mentions  that  the  competent authority shall  if it  is satisfied that there are adequate and  reasonable  grounds  for  such  proposal  approve  such dismissal,  removal,   reduction  in   rank   or   otherwise termination of  appointment. The  approval of  an  order  of dismissal or  removal etc.  will have  to be  read alongwith S.3(1) which  provides that  no teacher  shall be  dismissed etc.  without   the  previous   approval  of  the  competent authority. When  a domestic  enquiry has  been conducted and the teacher is given an opportunity to rebut the charges and show cause  against the  punishment proposed  and when  fair procedure has  been followed  and the authority comes to the conclusion that  the disciplinary  action  should  be  taken against the teacher the proposal will have to be sent to the competent authority.  The competent  authority will  examine the  proposal   alongwith  the   procedure  adopted  by  the institution and such dismissal, removal or reduction in rank or  termination  of  appointment.  Sub.  s(2)  requires  the competent authority  to approve  such a  proposal if  it  is satisfied that there are adequate and reasonable grounds for such proposal.  The two  words "adequate  and reasonable" in our opinion  furnish sufficient  guidelines.  The  competent authority can  interfere if there are no material at all for sustaining the  order of punishment or when on the materials found the  charge is  completely baseless  and perverse. The word "adequate" in sub-section will have to be understood as being confined to such examination of the proposal. The word "reasonable" would  indicate  the  power  of  the  competent authority is confined to the power of an authority to inter- 1002 fere with  the enquiry  and conclusions  arrived at  by  the domestic  Tribunal.  The  competent  authority  may  satisfy itself that the rules of natural Justice has been satisfied, that the  teacher was  given an  opportunity to  defend  the charges against him and to show cause against the punishment proposed to  be awarded to him and that a fair procedure has been  observed.  The  authority  may  also  be  entitled  to interfere when the punishment was imposed by the institution due to  mala fides  or with a view to victimised him or such like grounds.  The word "reasonable" cannot be understood as conferring a  power to  interfere with  the enquiry  by  the domestic tribunal  as a  Court of  Appeal on merits. The law relating to the circumstances under which the proceedings of the tribunal  can be  interfered with  has been clearly laid down.  Sufficient   guidelines  are   discernible  from  the Statements of  objects  and  reason  which  state  that  the enactment  was   for  the   purpose  of  preventing  private institutions  from  laking  disciplinary  action  on  flimsy grounds  without  framing  charges  and  without  giving  an opportunity  to  explain  and  for  regulating  the  service conditions of  teachers and  for ensuring  their security of service. We  are satisfied  that sufficient  guidelines  are indicated in  the Act.  The words  "adequate and reasonable" should be  given a  restricted meaning so as to validate the provisions of  the section.  Thus, understood, the objection raised by  Mr. Lal  Narain Sinha,  learned counsel  for  the

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appellant, that  S.3(1) and  (2) lack  guidelines  and  have conferred a blanket power, cannot be upheld.      It was  next contended  by Mr. Lal Narain Sinha that no question of  principles of  natural justice  arised when the conditions  of  service  between  the  institution  and  the teacher are  regulated by  contract. We are unable to accept this contention  for the  legislature is  competent to enact provisions limiting  the power of dismissal and removal. The Legislature has  given security  of service  to employees in industries and  in other  institutions. It  was submitted by the learned  counsel that  the offence of misconduct has not been classified  in  the  Act  and  that  no  procedure  for conducting disciplinary  enquiry has  been prescribed.  Such details are  not essential. It is within the jurisdiction of the  institution   to  conduct   an   enquiry   and   impose punishments. It is also the right of the competent authority to withhold approval on adequate and reasonable grounds. The plea that  the competent  authority may be any petty officer cannot also  be upheld as the competent authority is defined under S.  2(1) as  meaning any  authority, officer or person authorised  by  notification  performing  the  functions  of competent authority  under this Act. The competent authority or officers  of the  educational department who are incharge of administration  of educational  institutions in the area, cannot be called petty officers. 1003 Section 3(3)(a)  and  3(3)(b)  relate  to  suspension  of  a teacher Sub.  s. 3(a)  requires that a teacher employed in a private institution  shall not  be placed  under suspension. Without an enquiry into the gross-misconduct of such teacher is contemplated  and sub. s.3(b) requires that the period of suspension shall  not exceed  two months.  If it exceeds two months and  the enquiry is not completed within that period, such teacher  shall, without  prejudice to  the enquiry,  be deemed to  have been  restored as  teacher. But  the proviso enables the authority to extend the period of suspension for another two  months if  in his opinion the enquiry could not be completed  within the period of two months. Sub. ss.(a) & (b) of  S. 3  which relate  to suspension  are regulatory in nature and are intended to safeguard the teachers from being suspended for  unduly long  periods without  there being  an enquiry into  gross misconduct.  We are  unable to  say that these provisions  interfere with the right of administration of  the  private  institutions.  S.3(4)  states  that  every teacher placed  under suspension  shall be  paid subsistence allowance at  such rates  as may  be prescribed  during  the period  of   his  suspension.  This  sub-section  is  purely regulatory in nature and unobjectionable.      S. 4  confers a  right of  appeal against  the order of punishment  imposed   on  teachers   employed   in   private educational  institutions.   A  teacher  who  is  dismissed, removed or reduced in rank or whose appointment is otherwise terminated or  whose pay  and allowances or any of the whose conditions o  service are  altered  or  interpreted  to  his disadvantage may  prefer an  appeal to such authority as may be prescribed.  This section  was challenged  by Mr.  L.  N. Sinha, learned  counsel, on  the ground  that the  right  of appeal conferred is a blanket power without any restriction. In any  event, the  submission that  the right  of appeal is conferred only  on the  teacher and  not on the institution. Though no  restriction are placed on the appellate power, we feel it  may be  possible to  read down the section. But the learned counsel  is on  firm ground when he submits that the right of  appeal is  confined only  to the  teachers and not available to institution. This infirmity invalidates S.4.

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    Section 5  is consequential  of S.4  in which  power is conferred on  the competent  authority  to  hear  appeal  in certain past  disciplinary cases. S.5 also will have to fail alongwith S.4. S.6 relates to retrenchment of teachers under certain conditions.  It provides  that when any retrenchment is rendered  necessary,  consequent  on  any  order  of  the Government relating to educational institutions or course of instruction or  any other  matter such  retrenchment may  be effected with the prior approval of the competent authority. This section is also intended to provide security of service of the teachers and is regulatory in nature and 1004 the validity  of which  cannot be  questioned. S. 7 requires the pay  and allowances  of  any  teacher  employed  in  any private educational  institution shall  be paid on or before such day  of every  month, in  such manner and by or through such authority, officer or person as may be prescribed. This section is  also regulatory  in nature  and is  intended for securing regular payment of the teachers.      The validity  of other  sections was  not questioned in the writ petitions, and, therefore, it is not permissible to go into it.      In the  view we  have taken,  we do  not think  that we should go  into the merits of each of the cases. In C.A. No. 1280 of  1978-The All  Saints High  School Hyderabad  v. The Govt.  of   Andhra  Pradesh  and  ors.-the  learned  counsel appearing for  the school  before the  High Court sought the decision  only   on  the  legal  issues  and  the  questions emanating from  the provisions  of the  Act and specifically requested the court not to decide the merits of the case. In some of  the petition  the facts  have been gone into but we would refrain  from going  into the  facts for  it has to be decided as  to whether  the competent  authority  has  acted within the  restricted jurisdiction  which have  been stated with  in  our  judgment.  If  the  competent  authority  had exceeded its jurisdiction, it would be open to the aggrieved institution to  question the  validity of such action. These matters  will   have  to   be  decided  on  merits.  In  the circumstances. we  remit all  the Civil  Appeals to the High Court for disposal on merits in the light of this judgment.                            ORDER      In the  view of  the majority,  sections 3(3) (a), 3(3) (b), 6  and 7  of  the  Andhra  Pradesh  Recognised  Private Educational Institutions  Control Act,  1975 are valid while sections 3(1), 3(2), 4 and 5 of the Act are invalid in their application to  minority educational  institutions. It  must follow that  such institutions  cannot be  proceeded against for violation  of provisions  which are  not  applicable  to them. The  matters are  remanded to the High Court of Andhra Pradesh for  final disposal  on merits  in the  light of the judgments.      There will be no order as to costs. N.K.A. 1005