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PETITIONER: FRANK ANTHONY PUBLIC SCHOOL EMPLOYEESASSOCIATION

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT17/11/1986

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) OZA, G.L. (J)

CITATION:  1987 AIR  311            1987 SCR  (1) 238  1986 SCC  (4) 707        JT 1986   861  1986 SCALE  (2)805  CITATOR INFO :  RF         1987 SC1210  (3,4,5,7,8,9,11,12,13)  R          1988 SC  37  (16,18)  RF         1988 SC 305  (15)  D          1988 SC1291  (9)  R          1988 SC2005  (12)  R          1990 SC1147  (7)  RF         1991 SC 101  (263)  R          1991 SC2230  (4)

ACT:     Equal  pay  for equal work, principle  as  envisaged  in section 10 of the Delhi School Education Act made inapplica- ble   to   an  unaided  minority  school  by   section   12, thereof--Whether section 12 is hit by Articles 14, 21 and 23 of the Constitution--Whether sections 8 to 11 impinge on the right  of the minorities to administer educational  institu- tions of their choice envisaged in Article 30 of the Consti- tution.

HEADNOTE:     Chapter IV of the Delhi School EdUcation Act, comprising of  sections  8  to 12 deal with "Terms  and  conditions  of service of employees of recognised private schools". Chapter V  consisting of sections 13 to 15 contains "the  provisions applicable  to  unaided  minority  schools".  Section  10(1) specifically  requires that, "the scales of pay  and  allow- ances. medical facilities, pension, gratuity, provident fund and  other prescribed benefits of the employees of a  recog- nised  private  school shall not be less than those  of  the employees of the corresponding status in schools run by  the appropriate  authority". But section 12  provides,  "Nothing contained in this Chapter shall apply to an unaided minority school."  Chapter V contains certain provisions relating  to unaided minority schools.     The effect of section 12 of the Act is to make  sections 8,9,10  and  11 inapplicable to  unaided  minority  schools: First,  the Administrator may not make rules regulating  the conditions  of  service  of employees  of  unaided  minority schools.  But so far as the minimum qualifications  for  re- cruitment of employees are concerned, Section 13 enables the Administrator to make regulations even in respect of unaided

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minority schools. Second, the prior approval of the Director need  not be obtained for the dismissal. removal.  reduction in rank or termination of service otherwise than by dismiss- al or removal of an employee of an unaided minority  school. Third. against such dismissal. removal or reduction in rank, there  is to be no appeal. Fourth, neither prior nor  subse- quent  approval of the Director need be obtained to  suspend any  of the employees of an unaided minority  school  Fifth, the  scales of pay and allowances. medical facilities,  pen- sion. gratuity. provident fund and other 239 benefits  which may be given to employees are subject to  no regulation except that they should be contained in a written contract  of service and need not conform to the  scales  of pay and allowances etc. of the employees of the  correspond- ing status in schools run by the appropriate authority as in the case of other recognised private schools.     Frank  Anthony  Public School is  a  recognised  unaided minority  school  within the meaning of sections  2(x)  read with 2(e), 2(o) and 2(t) of the Act. In the matter of emolu- ments and conditions of service such as leave etc., teachers and  employees  of the Frank Anthony Public School  lag  far behind  the  teachers and employees of  Government  schools. Several other conditions of service of teachers and  employ- ees also comare unfavourably with the conditions of  service of  teachers  and employees of Government Schools.  But  for section 12 and if sections 8 to 11 were applicable to  them, they  would  at least be as well off as teachers  and  other employees of Government Schools. The Petitioner association, therefore,  has filed the writ petition under Article 32  of the  Constitution, seeking equalisation of their pay  scales and  conditions of service with those of their  counterparts in Government Schools and for a declaration that section  12 of the Act is void and constitutionally invalid as offending Articles 14, 21 and 23 of the Constitution.     Sometime  after  the  filing of the  writ  petition  and before  the preliminary hearing of the writ petitions,  some developments took place. On May 9, 1986 at 10.30 A.M. during the  daily school break between 10 A.M. and 10.40  A.M.  the teaching  staff other than one or two teachers who  are  re- quired  to be on duty, took out a "silent march"  which  was joined by the Class IV Staff also. Except those on duty, all the  others  took part in the "silent march".  Classes  were resumed  at 10.40 A.M. and were not affected in any  manner. There were’ no speeches, no shouting of slogans. no violence and  no  disruption  of studies. But even so  a  notice  was issued  by the principal on April 10, 1986 warning the  mem- bers  of  the staff. Despite the warning  a  similar  silent march  was taken out on April 10, 1986 also. The  management issued  orders of suspension against Mrs. Malik, Mrs.  Dhar, Mrs.  Balman and Mr. Bush. The Petitioner Association  chal- lenged the said suspension orders as well and sought stay of the operation of the orders of suspension of the four teach- ers.     The respondents in response to the "Rule Nisi"  contend- ed;  (i)  that  the classification made by  section  12  was perfectly  valid; (ii) that but. for section 12, sections  8 to  11  would have to be held to interfere  with  the  right guaranteed by Article 30 of the Constitution to religious 240 and linguistic minorities to administer educational institu- tions  of their choice; (iii) the petitioner school  was  an educational  institution  of great repute  whose  excellence spoke  for itself and therefore it did not  necessitate  any regulation  by any other authority; (iv) that the  scale  of

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fee  should continue to be low so that it may be within  the reach of the ordinary people whom it was intended to  reach. It was because of this desire of the management to keep  the scale  of fee low that the management could not  pay  higher salaries  and  allowances; and (v) that if  section  12  was struck down and the management was compelled to pay the same scale  of salary and allowances as was paid to employees  of Government  schools, the Frank Anthony Public  School  would have to be closed down. Allowing the writ petition, the Court,      HELD:  1. Section 12 of the Delhi School Education  Act which  makes  the provisions of Chapter IV  inapplicable  to minority  institutions is discriminatory and void  not  only because it makes section 10 inapplicable to minority  insti- tutions,  but  also because it makes  sections  8(1),  8(3), 8(4), 8(5), 9 and 11 inapplicable to unaided minority insti- tutions.  That the Parliament did not understand sections  8 to 11 as offending the  fundamental right guaranteed to  the minorities under Article 30(1) is evident from the fact that Chapter  IV  applies to aided minority institutions  and  it cannot for a moment be suggested that surrender of the right under  Article 30(1) is the price which the  aided  minority institutions have to pay to obtain aid from the  Government. [272G-273A]      2.1  From the decided cases, it is clear, that there is a  general and broad consensus about the content and  dimen- sion of the Fundamental Right guaranteed by Article 30(1) of the  Constitution.  The right guaranteed  to  religious  and linguistic  minorities  by  Article 30(1) is  two  fold,  to establish  and  to administer  educational  institutions  of their  choice. The key to the Article lies in the words  "of their  own choice". These words indicate that the extent  of the  right  is to be determined, not with reference  to  any concept of State necessity and general societal interest but with  reference to the educational institutions  themselves, that  is, with reference to the goal of making the  institu- tions  "effective  vehicles of education  for  the  minority community  or other persons who resort to them". It  follows that  regulatory  measures which are  designed  towards  the achievement  of the goal of making the minority  educational institutions  effective instruments for imparting  education cannot be considered to impinge upon the right guaranteed by Article 30(1) of the Constitution. The question in each case is whether the particular mea- 241 sure, it in the ultimate analysis, designed to achieve  such goal, without of course nullifying any part of the right  of management in substantial measure. [267C-E]     In  re Kerala Education Bill, 1957 [1958] SCR 995;  Rev. Sidhajbhai  School  and Ors., v. State of Bombay  and  Anr., [1963] 3 SCR 837; State of Kerala etc. v. Mother  Provincial etc.,  [1971] 1 SCR 734; The Ahmedabad St.  Xaviors  College Society  & Anr., v. State of Gujarat and Anr., [1975] 1  SCR 173;  All  Saints  High School etc., v.  The  Government  of Andhra Pradesh AIR 1960 SC 1042 discussed.     2.2  What  was  decided by the Supreme Court  in  In  re Kerala Educational Bill, 1957 was that Anglo-Indian  Schools which were entitled to receive grants under the Constitution and which received no more aid than that to which they  were entitled  under the Constitution could not be  subjected  to stringent terms as fresh or additional conditions  precedent to  enable them to obtain the grant. Such  conditions  would infringe  their rights under Article 337 and  violate  their rights under Article 30(1). To place an interpretation  that any  conditions imposed for granting recognition to  unaided

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minority  educational  institutions would  infringe  on  the right of administration granted to them by Article 30(1)  of the Constitution would be subversive of the right guaranteed by Article 30(1) since it would make the extent of the right depend on the receipt or non-receipt of aid. If one thing is clear,  it is this that the Fundamental Right guaranteed  by Article  30(1) cannot be surrendered, wholly or partly,  and the authorities cannot make the grant of aid conditional  on the surrender of a part of the Fundamental Right. [253D-E]     2.3  Sections 8(1), 8(3). 8(4) and 8(5) do not  encroach upon any right of minorities to administer their educational institutions. Section 8(2), however does interfere with such right and, therefore, inapplicable to minority  institutions section  4 is again innocuous since section 9 which  applies to  unaided minority schools is virtually on the same  lines as section 9. [272F-G]     2.4  Section 8(1) merely empowers the  Administrator  to make  rules  regulating the minimum qualifications  for  re- cruitment,  and  the  conditions of  service  of  recognised private  schools.  Section  8(1) is innocuous  and  in  fact section  13  which applies to unaided  minority  schools  is almost on the same lines as section 8(1). Section 8(2) which requires the prior approval of the Director for the dismiss- al,  removal, reduction in rank or other termination of  the services of an employee of 242 a  recognised private school is objectionable. Section  8(3) provides for an appeal to the Tribunal constituted under  s. 11, that is, a Tribunal consisting of a person who has  hold office  as a District Judge or any equivalent  judicial  of- fice. The appeal is not to any departmental official but  to a  Tribunal  manned by a person who has held  off‘ice  as  a District  Judge and who is required to exercise  his  powers not arbitrarily but in the same manner as a court of  appeal under  the  Code  of Civil Procedure. The  right  of  appeal itself  is  confined to a limited class  of  cases,  namely, those of dismissal, removal or reduction in rank and not  to every  dispute between an employee and the  management.  The limited  right  of appeal, the character  of  the  authority constituted  to hear the appeal and the manner in which  the appellate power is required to be exercised make the  provi- sion for an appeal perfectly reasonable. [270E-G, 271D-F]     2.5  Section  8(4)  would be  inapplicable  to  minority institutions if it had conferred blanket power on the Direc- tor to grant or withhold prior approval in every case  where a  management proposed to suspend an employee but it is  not so. The management has the right to order immediate  suspen- sion of an employee in case of gross misconduct but in order to  prevent an abuse of power by the management a  safeguard is provided to the employee that approval should be obtained within  15  days. The Director is also bound to  accord  his approval  if there are adequate and reasonable  grounds  for such suspension. The provisions is eminently reasonable  and sound. [271H -272B]     The  Ahmedabad  St. Xaviers College Society  &  Anr.  v. State of Gujarat and Anr., (1975) 1 SCR 173; All Saints High School etc. v. The Government of Andhra Pradesh AIR 1960  SC 1042 referred to.     2.6  The  excellence of the instruction provided  by  an institution  would depend directly on the excellence of  the teaching staff, and in turn, that would depend on the quali- ty and the contentment of the teacher. Conditions of service pertaining  to  minimum qualifications  of  teachers,  their salaries,  allowances and other conditions of service  which ensure security, contentment and decent living standards  to

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teachers  and which will consequently enable them to  render better  service  to the institution and  the  pupils  cannot surely  be  said to he violative of  the  fundamental  right guaranteed by Article 30(1) of the Constitution. The manage- ment of a minority Educational institution cannot be permit- ted  under the guise of the fundamental right guaranteed  by Article 30(1) of the Constitution, to oppress or exploit its employees any more than any other private employee.  Oppres- sion or exploitation of the teaching staff of an educational institution is bound 243 to lead, inevitably, to discontent and deterioration of  the standard of instruction imparted in the institution  affect- ing adversely the object of making the institution an effec- tive  vehicle  of education for the  minority  community  or other  persons who resort to it. The management of  minority institution  cannot complain of invasion of the  fundamental right to administer the institution when it denies the  very object of Article 30(1) which is to make the institution  an effective vehicle of education. Therefore, section 10 of the Delhi  Education Act which requires that the scales  of  pay and  allowances,  medical  facilities,  pension,   gratuity, provident fund and other prescribed benefits of the  employ- ees  of a recognised private school shall not be  less  than those  of  the  employees of  the  corresponding  status  in schools  run by the appropriate authority and which  further prescribes the procedure for enforcement of the  requirement is  a permissible regulation aimed at  attracting  competent staff and consequently at the excellence of the  educational institution. It is a permissible regulation which in no  way detracts  from the fundamental right guaranteed  by  Article 30(1) to the minority institution to administer their educa- tional institutions. Therefore to the extent that section 12 makes  section 10 inapplicable to unaided minority  institu- tions, it is clearly discriminatory. [269B-E, 270C-D]     The Ahmedabad St. Xaviers College Society & Anr., v. The State  of  Gujarat & Anr., [1975] 1 SCR 173;  In  re  Kerala Education Bill, 1957, [1958] SCR 995; The State of Kerala v. Mother  Provincial [1971] 1 SCR 734; All Saints High  School v. Government of Andhra Pradesh AIR 1960 SC 1042 relied on.

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition (Civil) No. 587 of 1986 Under Article 32 of the Constitution of India.     C.S.  Vaidyanathan, M.K.S. Menon and S.R. Bhatt for  the Petitioner.     G. Ramaswamy, Additional Solicitor General, Miss  Sushma Relan and R.D. Agarwala for the Respondent.     Frank Anthony, Sushil Kumar and S.P. Mitra for  Respond- ent No. 3. The Judgment of the Court was delivered by 244     CHINNAPPA  REDDY, J. The scales of pay and other  condi- tions  of  service of teachers and other  employees  of  the Frank Anthony Public School New Delhi compare very unfavour- ably with those of their counterparts of the Delhi  Adminis- tration  Schools.  The scales of pay of  teachers,  primary, T.G.T. or middle, and senior or P.G.T. of Government schools (that  is, schools run by the Delhi Administration),  as  of today,             are              1200-30-1560-EB-40-2000, 1400-40-1600-50-2300-EB-60-2600 and  1640-60-2600-EB-75-2900 respectively.  Primary and middle school teachers are  enti-

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tled  to House Rent Allowance of Rs.250.  City  Compensatory Allowance  of  Rs.75 and Medical Allowance of  Rs.25  while, Senior school teachers are entitled to House Rent  Allowance of Rs.450, City Compensatory Allowance of Rs.100 and Medical Allowance  of Rs.25. At the starting point a primary  school teacher  gets  a total sum of Rs.1540 per month  by  way  of salary and allowances, a middle school teacher gets a  total sum  of Rs.1750 and a senior school teacher a total  sum  of Rs.2215.  The  scales of pay of primary, middle  and  senior school teachers of the Frank Anthony Public School are  275- 20-475-25-600-25-725,300-25-550-30-770-30-850            and 400-30-700-35-875-35-1050. They get allowances of Rs.702.50, 715  and 765 respectively. At the starting point the  salary and  allowances  together come to Rs.977.50, 1015  and  1165 respectively. In the case of teachers of Government  schools they are entitled to gratuity of 15 days’ pay for every year of  service, Provident Fund at the rate of 8.33%  and  Leave Travel  Concession once every two years to their home  town. In the case of ’teachers of the Frank Anthony Public  School there  is  provision  for Contributory  Provident  Fund  and Family  Pension  only. Teachers of  Government  schools  are entitled  to  Casual Leave of 12 days, Earned  Leave  of  10 says, Sick Leave of 10 days and Maternity Leave of 90  days, whereas,  teachers  of the Frank Anthony Public  School  are entitled  to Casual Leave of 10 days, no Earned Leave,  Sick Leave of 14 days and Maternity Leave of 30 days. In the case of  Class IV employees, in Government schools, the scale  of pay  is  750-8-790-EB-10-940 with House  Rent  Allowance  of Rs.150,  City  Compensatory Allowance of Rs.30  and  Medical Allowance  of Rs.25. The scale of pay of Class IV  employees of the Frank Anthony Public School is 70-5-120-7.50-195 with allowances  of Rs.473. The total starting salary and  allow- ances  of Class IV employees in Government Schools  and  the Frank  Anthony Public School are Rs.955 and  Rs.543  respec- tively.  It is evident that in the matter of emoluments  and conditions  of service such as leave etc. teachers  and  em- ployees  of the Frank Anthony Public School lag  far  behind the teachers and employees of Government schools. There  are other conditions of service of teachers and employees of the Frank Anthony Public School which also com- 245 pare unfavourably with the conditions of service of teachers and  employees  of  Government Schools.  The  Frank  Anthony Public  School employees Association seeks  equalisation  of their  pay  scales and conditions of service with  those  of teachers and employees of Government Schools. Sections 8  to 12  of  the  Delhi School Education  Act  together  comprise Chapter  IV of that Act which deals with "Terms  and  condi- tions   of  service  of  employees  of  recognised   private Schools." If Sections 8 to 11 were applicable to the  teach- ers and other employees of the Frank Anthony Public  School, they  would  at least be as well off as teachers  and  other employees  of Government Schools. But section  12  provides, "Nothing contained in this Chapter shall apply to an unaided minority  school."  The Frank Anthony Public  School  is  an unaided  minority school. By the force of Section 12 of  the Act, the provisions of Sections 8 to 11 do not apply to  the Frank  Anthony Public School. Therefore, the  Frank  Anthony Public  School  Employees Association has sought  from  this Court  a  declaration that section 12 of  the  Delhi  School Education  Act  is unconstitutional as  being  violative  of Articles 14, 21 and 23 of the Constitution. A similar decla- ration is sought in regard to Section 21 of the Act also but is not pressed before us. A direction is also sought to  the respondents, the Union of India and the Delhi Administration

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to enforce all the provisions of the Delhi School  Education Act,  other  than Sections 12 and 21, and "to fix  the  pay, allowances, benefits etc. to persons employed in the schools governed by the Act in relation to unaided minority  schools at par with the persons employed in other schools."     It  appears that sometime after the filing of  the  writ petition  and  before the preliminary heating  of  the  writ petition some developments took place to which it is  neces- sary to refer here. On May 9, 1986 at 10.30 a.m. the  teach- ing staff other than those on duty took out ’a silent march’ which  was  joined by the Class IV staff  also.  The  school hours have a break between 10.00 a.m. and 10.40 a.m.  During the break only one or two teachers are on duty. Except those on  duty,  all the others took part in the  ’silent  march’. Classes were resumed at 10.40 a.m. and were not affected  in any manner. There were no speeches, no shouting of  slogans, no  violence  and no disruption of studies. But  even  so  a notice was issued by the principal on April 10, 1986 warning the  members  of the staff. Despite the  warning  a  similar ’silent  march’  was taken out on April 10, 1986  also.  The management  issued orders of suspension against Mrs.  Malik, Mrs.  Dhar, Mrs. Balman and Mr. Bush. While  granting  ’Rule Nisi’  in  the main writ petition, this Court  also  granted stay  of operation of the orders of suspension of  the  four teachers. The inquiries against them were also stayed. 246     The  attack of the petitioner against Section 12 of  the Delhi  Education Act was based on Art. 14 while  the  provi- sions were sought to be sustained by the respondents on  the basis of Article 30 of the Constitution. While it was argued by Mr. Vaidyanathan, learned counsel for the petitioner that Section 12 was hit by Art. 14 and that Sections 8 to 11  did not, in any manner, impinge upon Article 30 of the Constitu- tion,  it was argued, on behalf of the respondents,  by  the learned  Additional  Solicitor-General  and  by  Shri  Frank Anthony,  that  the classification made by  Section  12  was perfectly valid and that, but for Section 12, Sections 8  to 11 would have to be held to interfere with the right guaran- teed  by Art. 30 to religious and linguistic  minorities  to administer  educational  institutions of  their  choice  and Sections 8 to 11 would consequently be inapplicable to  such minority educational institutions.     In  order  to  appreciate the  controversy  between  the parties,  it  is necessary to refer to the  scheme  and  the important provisions of the Delhi School Education Act.  The long title of the Act recites that it is "An act to  provide for better organisation and development of school  education in  the Union Territory of Delhi and for  matters  connected therewith  or  incidental  thereto."  Section  2(d)  defines "Aided School" as meaning "a recognised private school which is  receiving aid in the form of maintenance great from  the Central Government, Administrator or local authority or  any other authority designated by the Central Government, Admin- istrator  or  a  local authority."  "Recognised  School"  is defined by Section 2(t) to mean "a school recognised by  the appropriate  authority.’: Section 2(e) defines  "appropriate authority" to mean:               "(i) in the case of a school recognised or  to               be  recognised by an authority  designated  or               sponsored  by  the  Central  Government,  that               authority;               (ii) in the case of a school recognised or  to               be recognised by the Delhi Administration, the               Administrator or any other officer  authorised               by him in this behalf;

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             (iii) in the case of a school recognised or to               be recognised by the Municipal Corporation  of               Delhi, that Corporation;" We  may  state here that in the case of  the  Frank  Anthony Public School the appropriate authority is the Delhi  Admin- istration. Section 2(h) defines ’employee’ to mean "a teach- er and includes every other em- 247 ployee working in a recognised school". "Minority school" is defined  by section 2(o) to mean "a school  established  and administered  by a minority having the right to do so  under clause  (1)  of Art. 30 of the Constitution".  Section  2(x) defines  "unaided  minority school" to  mean  "a  recognised minority  school  which  does not receive any  aid."  It  is undisputed that the Frank Anthony Public School is an unaid- ed minority school. Chapter II of the Act deals with "estab- lishment,  recognition, management of and aid  to  schools." Chapter III deals with school property. Chapter IV  consist- ing of sections 8 to 12, deals with "Terms and Conditions of service of employees of recognised private schools". Chapter V, consisting of Sections 13 to 15, contains "the provisions applicable  to unaided minority schools." We  are  concerned with Chapters IV and V. Chapter VI deals with "admission  to schools  and fees", Chapter VII deals with "Taking over  the management  of schools" and Chapter VIII with  miscellaneous provisions. Going back to Chapter IV, Sections 8(1) empowers the  Administrator  to make rules  regulating  ’the  minimum qualifications for recruitment, and the conditions of  serv- ice, of employees of recognised private schools’. The  first proviso to Section 8(1) stipulates that salary and rights in respect  of leave of absence, age of retirement and  pension of an employee of an existing school at the commencement  of the  Act may not thereafter be varied to  his  disadvantage. The  proviso gives an indication that salary and  rights  in respect  of leave of absence, age of retirement and  pension of an employee are covered by the expression "the conditions of  service". We mention this because in the course  of  the argument it was suggested that salary is not a condition  of service.  Sub-section(2) of Section 8 stipulates that,  sub- ject to any rule that may be made, "no employee of a  recog- nised private school shall be dismissed, removed or  reduced in rank nor shall his service be otherwise terminated except with  the  prior  approval of the  Director."  Section  8(3) enables  an employee of a recognised private school  who  is dismissed, removed or reduced in rank to prefer an appeal to the Tribunal constituted under Section 11 against the  order of such dismissal, removal or reduction in rank. What is  of importance  and  requires to be noticed is  that  the  prior approval  of the Director contemplated by Section  8(2)  and the  appeal for which provision is made by Section 8(3)  are confined to dismissal, removal and reduction in rank and not to  other cases of disciplinary action or other  administra- tive  orders of the management. Section 8(2)  also  provides for the prior approval of the Director in the case of termi- nation of service otherwise then dismissal or removal  also. Section 8(4) requires the managing committee of a recognised private school to communicate to the Director and to  obtain his  prior approval before suspending any of its  employees. However, the provision 248 enables  the managing committee to suspend an employee  with immediate  effect  and  without the prior  approval  of  the Director  if it is satisfied that such immediate  suspension is  necessary by reason of the gross misconduct of  the  em- ployee,  within  the meaning of the Code  of  Conduct.  Such

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immediate suspension will cease to have effect after fifteen days if approval of the Director is not obtained in the mean while.  Section 8(5) authorises the Director to  accord  his approval  to  suspension of an employee if he  is  satisfied that  there  are adequate and reasonable  grounds  for  such suspension.  Section 9 prescribes that every employee  of  a recognised  school shall be governed by the prescribed  Code of  Conduct  and that the employee shall be  liable  to  the prescribed  disciplinary action for violation of any  provi- sion  of Code of Conduct. Section 10(1) requires  that  "the scales  of pay and allowances, medical facilities,  pension, gratuity,  provident fund and other prescribed  benefits  of the  employees of a recognised private school shall  not  be less than those of the employees of the corresponding status in schools run by the appropriate authority." The proviso to Section  10(1) requires the appropriate authority to  direct in writing the managing committee of any recognised  private school to bring the scales of pay and allowances etc. of all the  employees of such schools to the level of those of  the employees of the corresponding status in schools run by  the appropriate  authority. A further proviso to  Section  10(1) contemplates ’withdrawal of recognition if such direction is not  complied  with.  Section 10(2)  requires  the  managing committee  of every aided school to deposit every month  its share  towards pay and allowances, medical  facilities  etc. with  the Administrator and requires the Administrator  dis- burse, or cause to be disbursed, the salaries and allowances to  the employees of aided schools. Section 11 provides  for the constitution of a Tribunal consisting of one person  who shall have held the office of a District Judge or any equiv- alent  judicial  office.  Section 11(6)  provides  that  the Tribunal  shall, for the purpose of disposal of  an  appeal, have  the same powers as are vested in a court of appeal  by the  Code  of Civil Procedure. Then comes Section  12  which says  "Nothing contained in this Chapter shall apply  to  an unaided  minority school." It is because of  this  provision that Sections 8, 9, 10 and 11 become inapplicable to unaided minority schools. Chapter V consists of Section 13 to 15 and these are the provisions of the Act which are applicable  to unaided minority schools only. Section 13 enables the Admin- istrator to make rules regulating the minimum qualifications for  and  method  of, recruitment of  employees  of  unaided minority schools. Section 14 prescribes that every  employee of an unaided private school shall be governed by such  Code of  Conduct  as may be prescribed. Except in the  matter  of disciplinary action the 249 Code of Conduct prescribed for employees of unaided minority schools  under Section 14 is virtually the same as the  Code of  Conduct  prescribed  for all  recognised  schools  under Section 9. Section 15(1) requires the managing committee  of every  unaided minority school to enter into a written  con- tract of service with every employee of such school. Section 15(2) provides that a copy of every contract of service shah be forwarded by the managing committee to the  Administrator who shah, on receipt of such copy register it. Section 15(3) provides  that  every contract of service shah  provide  for "(a)  the terms and conditions of service of  the  employee, including the scale of pay and other allowances to which  he shah  be entitled; (b) the leave of absence, age of  retire- ment, pension and gratuity or contributory provident fund in lieu of pension and gratuity, and medical and other benefits to  which the employee shah be entitled; (c)  the  penalties which  may be imposed on the employee for the  violation  of any  Code of Conduct or the breach of any term of  the  con-

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tract entered into by him; (d) the manner in which discipli- nary  proceedings in relation to the employee shall be  con- ducted  and  procedure which shall be  followed  before  any employee  is dismissed, removed from service or  reduced  in rank;  (e)  arbitration of any dispute arising  out  of  any breach  of  contract between the employee and  the  managing committee  with  regard to-(i) the scales of pay  and  other allowances,  (ii) leave of absence, age of retirement,  pen- sion, gratuity, provident fund, medical and other  benefits, (iii)  any disciplinary action leading to the  dismissal  or removal  from service or reduction in rank of the  employee, (f)  any other matter which, in the opinion of the  managing committee,  out  to  be,  or  may  be,  specified  in   such contract."  Section 16, which occurs in Chapter VI,  is  ap- plicable  to  unaided minority schools also and  deals  with admission  to  recognised  schools. Section 17  and  19  are applicable to both aided and unaided schools. Section  19(1) requires that every recognised higher secondary school shall be  affiliated  to  one or more of the  Boards  or  Councils conducting such examination and shall fulfil the  conditions prescribed by the Board or Council. Chapter VII consists  of two sections. Section 20 deals with taking over the  manage- ment  of  schools and Section 21 provides  that  Section  20 shall  not apply to a minority school. As already  mentioned by  us, though the question of the vires of Section  21  was also  raised  in  the petition, the point  was  not  pressed before us.     The effect of Section 12, as already mentioned by us, is to  make  Sections 8, 9, 10 and 11 inapplicable  to  unaided minority  schools;  First, the Administrator may  not  make’ rules  regulating the conditions of service of employees  of unaided minority schools. But so far as the 250 minimum  qualifications  for recruitment  of  employees  are concerned,  Section  13 enables the  Administrator  to  make regulations  even  in respect of unaided  minority  schools. Second,  the  prior  approval of the Director  need  not  be obtained  for the dismissal, removal, reduction in  rank  or termination of service otherwise then by dismissal or remov- al  of  an employee of an unaided  minority  school.  Third, against such dismissal, removal or reduction in rank,  there is  to  be no appeal. Fourth, neither piror  nor  subsequent approval of the Director need be obtained to suspend any  of the  employees  of an unaided minority  school.  Fifth,  the scales  of pay and allowance, medical  facilities,  pension, gratuity,  provident  fund and other benefits which  may  be given to employees are subject to no regulation except  that they  should be contained in a written contract  of  service and  need  not conform to the scales of pay  and  allowances etc. of the employees of the corresponding status in schools run  by  the appropriate authority as in the case  of  other recognised private schools.     To  recall  the contentions of the learned  counsel  for either  side, on the one hand it was submitted by Shri  C.S. Vaidyanathan, learned counsel for the petitioner that  these drastic departures which result from giving effect to s. 12, make  Section 12 discriminatory and offensive to Art. 14  of the Constitution. The provisions which are made inapplicable to aided minority institutions because of Section 12 are  no more than regulatory measures aimed at the excellence of the institution  and in no way impinge on the Fundamental  Right of  the minorities, religious or linguistic,  to  administer educational institutions of their choice. On the other hand, it  was the contention of the learned  Additional  Solicitor General  that these provisions are inapplicable to  minority

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institutions since they interfere with the right of  manage- ment vested in the minorities. According to him, payment  of salary, allowances etc. is part of the right of the  manage- ment  to appoint members of the staff. The economics  of  an unaided institution is entirely in the hands of its  manage- ment  and the right of the management to pay  such  salaries and  allowances  as the management deems fit is a  part  and parcel  of the right to administer the institution. More  so the  right to take disciplinary action which cannot  be  the subject  of any supervision by any other authority. But  for Section  12, Sections 8 to 11 would impinge on the right  of the  minorities  to administer Educational  Institutions  of their choice and would therefore, be inapplicable to minori- ty Educational Institutions. Shri Frank Anthony made submis- sions on the same lines as the learned Additional  Solicitor General  and in addition pointed out that the Frank  Anthony Public School was an Educational Institution of great repute and that the excellence of the 251 institution was such that it did not necessitate any regula- tion by any other authority. The excellence of the  institu- tion  spoke for itself. He submitted that the scale  of  fee charged  by  the  institution was low  compared  with  other private institutions and it was the desire of the management that  the scale of fee should continue to be low so that  it may  be within the reach of the ordinary people whom it  was intended  to  reach. It was because of this  desire  of  the management to keep the scale of fee low that the  management could  not  pay higher salaries and allowances and  we  were repeatedly  told that if Section 12 was struck down and  the management was compelled to pay the same scale of salary and allowances  as was paid to employees of Government  schools, the  Frank  Anthony Public School would have  to  be  closed down.     At  this juncture, we may refer to Art. 30(1) and  30(2) of the Constitution which are as follows:--               "30(1) All minorities, whether based on  reli-               gion  or  language, shall have  the  right  to               establish and administer educational  institu-               tions of their choice.               (               1               A               )                 ................................................               (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 content of the Fundamental Right guaranteed by  Art. 30(1)  of the Constitution has been the subject  of  several decisions of this Court. The leading case is that a  Consti- tution  bench  of seven judges, In re The  Kerala  Education Bill  [1957]  SCR 995. In an oft quoted  passage  S.R.  Das, Chief  Justice, explained the content of Art. 30(1) as  fol- lows:               "The  first point to note is that the  article               gives  certain  rights not only  to  religious               minorities but also to linguistic  minorities.               In the next place, the right conferred on such               minorities is to establish educational  insti-               tutions of their choice. It does not say  that               minorities based on religion should  establish               educational institutions for teaching religion

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             only,  or  that linguistic  minorities  should               have the right to establish educational insti-               tutions for teaching their               252               language only. What the article says and means               is  that  the  religious  and  the  linguistic               minorities should have the right to  establish               educational institutions of their choice.               There is no limitation placed on the  subjects               to be taught in such educational institutions.               As such minorities will ordinarily desire that               their  children should be brought up  properly               and  efficiently  and be eligible  for  higher               university  education and go out in the  world               fully equipped with such intellectual  attain-               ments  as will make them fit for entering  the               public  services, educational institutions  of               their choice will necessarily include institu-               tions  imparting  general  secular   education               also. In other words, the article leaves it to               their  choice  to establish  such  educational               institutions  as  will  serve  both  purposes,               namely, the purpose of conserving their  reli-               gion,  language or culture, and also the  pur-               pose of giving a thorough, good general educa-               tion to their children. The next thing to note               is  that  the  article, in  terms,  gives  all               minorities  whether based on religion or  lan-               guage, two rights, namely, the right to estab-               lish  and the right to administer  educational               institutions  of their choice. The key to  the               understanding of the true meaning and implica-               tion  of the article under  consideration  are               the  words "of their own choice". It  is  said               that  the dominant words is "choice"  and  the               content  of  that article is as  wide  as  the               choice  of the particular  minority  community               may make it. The ambit of the rights conferred               by Art. 30(1) has, therefore, to be determined               on  a  consideration of the  matter  from  the               points of view of the educational institutions               themselves."     Educational Institutions, it was said, could be  classi- fied  into three categories(1) those which did not seek  aid or recognition from the State (2) those which sought aid and (3) those which wanted recognition only but not aid. It  was said  that the institutions of the first category were  out- side the scope of the Kerala Education Bill the question  of vires  of whose provisions was referred to the court in  the reference. In the second category of schools, it was pointed out,  there  were  two classes, those  entitled  to  receive grants  under  the  Constitution and those  which  were  not entitled  to any grant under any provision of the  Constitu- tion.  but, nevertheless, sought aid. Under Art. 337 of  the Constitution. Anglo-Indian Schools which were receiving  the grant  upto  March, 31, 1948 were entitled  to  receive  the grants for a period of ten years subject to a graded  trien- nial diminution. Anglo- 253 Indian  Schools  which were receiving grants. but  not  more than  what they were entitled to receive under Art.  337  of the Constitution. came within the first class of the  second category and it was held that their Constitutional right  to receive the grant could not be subjected to any restrictions as  those  sought  to be imposed by the  provisions  of  the

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Kerala  Education Bill. Any attempt to impose any  such  re- strictions  on Anglo-Indian Schools which received  no  more aid  than that to which they were entitled to receive  under the Constitution would infringe their fights under Art.  337 and  under Art. 30(1) of the Constitution. We  may  straight away mention here that the period of ten years stipulated by Art.  337 having expired there is now no question of  Anglo- Indian  Schools  being entitled to any  special  protection. Shri  Frank  Anthony  sought to argue that  what  was  truly decided  by  the Court was that any  condition  imposed  for granting recognition to unaided minority Educational  Insti- tutions would infringe on the right of administration grant- ed to them by Art. 30(1) of the Constitution. We do not read the  decision as laying down any such proposition. What  was decided was that Anglo-Indian Schools which were entitled to receive grants under the Constitution and which received  no more  aid  than that to which they were entitled  under  the Constitution  could not be subjected to stringent  terms  as fresh  or additional conditions precedent to enable then  to obtain  the  grant.  Such conditions  would  infringe  their fights  under Art. 337 and violate their fights  under  Art. 30(1). To place an interpretation as that suggested by  Shri Anthony would be subversive of the right guaranteed by  Art. 30(1) since it would make the extent of the right depend  on the receipt or non-receipt of aid. If one thing is clear. it is this that the Fundamental Right guaranteed by Art.  30(1) cannot be surrendered, wholly or partly. and the authorities cannot make the grant of aid conditional on the surrender of a  part  of the Fundamental Right. In the very case  it  was observed:                "Recognition and grant of aid, says Shri G.S.               Pathak.  is  the  governmental  function  and.               therefore.  the State cannot impose  terms  as               condition  precedent to the grant of  recogni-               tion  or aid which will be violative  of  Art.               30(1).  According  to the  statement  of  case               filed by the State of Kerala. every  Christian               school  in  the State is aided by  the  State.               Therefore. the conditions imposed by the  said               Bill  on  aided institutions  established  and               administered by minority communities. like the               Christians. including the Anglo-Indian  commu-               nity.  will  lead to the closing down  of  all               these aided schools unless they are  agreeable               to  surrender their fundamental right of  man-               agement. No educational institution               254               can  in actual practice be carried on  without               aid from the State and if they will not get it               unless they surrender their fights they  will,               by  compulsion  of financial  necessities,  be               compelled  to give up their fights under  Art.               30(1). The legislative powers conferred on the               legislative of the States by Arts. 245 and 246               are  subject  to the other provisions  of  the               Constitution  and certainly to the  provisions               of  Part III which confers fundamental  rights               which  are,  therefore, binding on  the  State               legislature. The State legislature cannot,  it               is  clear, disregard or override those  provi-               sions merely by employing indirect methods  of               achieving  exactly the same result.  Even  the               Legislature  cannot  do  indirectly  what   it               certainly cannot do directly."               The  learned Chief Justice then  proceeded  to

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             consider the case of the Anglo-Indian  Schools               which  received aid in excess of that  granted               by  Art.  337 and the other  minority  schools               which received aid from the Government. One of               the  principal submissions there was that  the               gist  of  the  right of  administration  of  a               school  was the power of appointment,  control               and dismissal of teachers and other staff  and               that  under  the Kerala  Education  Bill  such               power  of  management  was  practically  taken               away. Dealing with the submission the  learned               Chief Justice observed,               "The  right  to  administer  cannot  obviously               include the right to maladminister. The minor-               ity  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  qualifi-               cation,  and  which does not maintain  even  a               fair  standard  of teaching or  which  teaches               matters  subversive  of  the  welfare  of  the               scholars. It stands to reason, then, that  the               constitutional  right to administer an  educa-               tional  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".     Proceeding  to consider whether the various  clauses  of the Bill merely prescribed reasonable regulations or  condi- tions for the grant of aid, the Court observed that  clauses 7,  10, 11(1), 12(1)(2)(3) and (5) might easily be  regarded as  reasonable  regulations or conditions for the  grant  of aid. We may mention here that Clause 10 of the Bill required 255 the  Government to prescribe the qualifications to  be  pos- sessed by persons for appointments as teachers in Government schools and in private schools. The procedure for  selection of teachers in Government schools and aided schools was laid down  in Clause 11. Clause 12 prescribed the  conditions  of service of the teachers of aided schools, obviously intended to  afford some security of tenure to the teachers of  aided schools.  It provided that the scales of pay  applicable  to the  teachers of Government schools shall apply to  all  the teachers  of aided schools. Sub-Clause (4) of C1.  12  which was  not  mentioned  by the Court as a  clause  which  could easily  be regarded as reasonable regulation, provided  that no  teacher of an aided school shall be dismissed,  removed, reduced  in  rank or suspended by the  Manager  without  the previous sanction of the authorised officer. Clause 11  sub- clause (2) was another clause which the court was unable  to readily  identify as reasonable. In regard of Clauses 9,  11 and  12  the  court while holding that  they  were  ’serious inroads  on the right of administration’ and that they  came ’perilously near violating their right’, nevertheless  held, "but considering that these 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."

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   In Rev. Sidhajbhai Sabhai and others v. State of  Bombay and  another,  [1963]  3 SCR 837 the  Court  summarised  the decision in the’ reference in regard to the Kerala Education Bill and proceeded to observe:               "The  right  established by Art.  30(1)  is  a               fundamental right declared in terms  absolute.               Unlike the fundamental freedoms guaranteed  by               Art.  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 insti-               tutions  of  their own choice.  The  right  is               intended  to  be effective and is  not  to  be               whittled down by so-called regulative measures               conceived in the interest not of the  minority               educational institution, but of the public  or               the  nation as a whole. If every  order  Which               while  maintaining the formal character  of  a               minority  institution  destroys the  power  of               administration is held justifiable because  it               is in the public or national interest,  though               not in its interest as               256               an educational institution, the right  guaran-               teed  by  Art. 30(1) will be  but  a  "teasing               illusion", a promise of unreality. Regulations               which may lawfully be imposed either by legis-               lative  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 institu-               tion 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." In State of Kerala etc. v. Mother Provincial etc., [1971]  1 SCR 734. It was conceded by the petitioners representing the minority communities (as indeed they were bound to do having regard  to the authorities of the Court) that the  State  or the  University to which these institutions were  affiliated may  prescribed  standards of teaching  and  the  Scholastic efficiency expected from colleges. It was also conceded that to  a certain extent conditions of employment  of  teachers, hygiene and physical training of students can be  regulated. While  administration was explained "management of  the  af- fairs" of the institution and it was said that this  manage- ment should be free of control so that the institution could be moulded in accordance with the management’s ideas of  how the  interests of the community in general and the  institu- tion in particular would be best served. It was pointed  out that  there  was an exception to this and it  was  that  the standards  of  education were not a part  of  management  as such. It was said,               "These standards concern the body politic and.               are dictated by considerations of the advance-               ment of the country and its people. Therefore,               if universities establish syllabi for examina-               tions  they must be followed, subject  however               to special subjects which the institutions may               seek to teach, and to certain extent the State               may also regulate the conditions of employment

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             of  teachers  and the health  and  hygiene  of               students. Such regulations do not bear direct-               ly  upon management as such although they  may               indirectly  affect  it. Yet the right  of  the               State   to  regulate  education,   educational               standards and allied matters cannot be denied.               The minority institutions cannot be allowed to               fail below the standards of excellence expect-               ed  of educational institutions. or under  the               guise  of  exclusive right of  management,  to               decline to               257               follow the general pattern. While the  manage-               ment  must be left to them, they may  be  com-               pelled to keep in step with others." One of the questions in the case related to the validity  of Section, 56 sub-sections (2) and (4). Section 56(2) provided that  no teacher of a private college should  to  dismissed, removed or reduced in rank without the previous sanction  of the Vice-Chancellor or placed under suspension for a contin- uous  period  exceeding fifteen days without  such  previous sanction. Section 56(4) provided that a teacher against whom disciplinary  action was taken shall have a right of  appeal to the Syndicate. It was held that these provisions  clearly took  away the disciplinary action from the  governing  body and the managing council and conferred it on the University. The view of the High Court that Subsections (2) and (4) were ultra vires Article 30(1) of the Constitutions in respect of minority institutions was upheld.      The  Ahemedabad St. Xaviers College Society & Anr.,  v. State  of Gujarat & Anr., [1975] 1 SCR 173 was the  decision of  a  Nine Judge Constitution Bench. Ray,  C.J.  with  whom Palekar, J. agreed stated in his opinion, after referring to the  State  of Kerala v. Mother Provincial etc.  (supra)  as follows:                     "Affiliation of minority institutions is               intended  to ensure the growth and  excellence               of  their children and other students  in  the               academic field. Affiliation mainly pertains to               the academic and educational character of  the               institution.  Therefore, measures  which  will               regulate the courses of study, the  qualifica-               tions and appointment of teachers, the  condi-               tions  of employment of teachers,  the  health               and  hygiene of students, facilities  for  li-               braries 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." Section  51A  of  the Act which was impugned  in  that  case provided  that  no member of the teaching  and  non-teaching staff  of an affiliated college shall be dismissed,  removed or  reduced  in rank except with the approval of  the  Vice- Chancellor:  Ray, C.J. held that the provision could not  be said  to be permissive regulatory measure inasmuch  it  con- ferred  arbitrary power on the Vice-Chancellor to take  away the 258 right of the minority institutions. It could not, therefore, be applied to minority institutions. Section 52A of the  Act contemplated  reference  of any dispute connected  with  the conditions  of service, between the governing body  and  any

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member. of the teaching and non-teaching staff of an affili- ated  college to an Arbitration Tribunal consisting  of  one member nominated by the governing body, one member nominated by the affected member and an umpire appointed by the  Vice- Chancellor. This provision was also held to be  inapplicable to  minority institutions as the references  to  arbitration would  introduce an area of litigious controversy in  educa- tional  institutions and displace the domestic  jurisdiction of  the  governing body. Jaganmohan Reddy, J.  speaking  for himself  and Alagiri Swami, 3., agreed with the  conclusions of  Ray,  C.J.  and made some observations of  his  own.  He observed:               "The  right under Art. 30 cannot be  exercised               in  vacue. 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 an education  and               enlightenment  of its citizens, there must  be               elements  which give protection to  them.  The               meaningful  exercise of the right  under  Art.               30(1)  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               Art.  30(1) as abridging or taking away  those               rights. Again as without affiliation there can               be  no meaningful exercise of the right  under               Art. 30(1), the affiliation to be given should               be  consistent  with that right,  nor  can  it               indirectly  try  to  achieve  what  it  cannot               directly do." Khanna,  J. pointed out, "The idea of giving special  fights to  the minorities is not to have a kind of a privileged  or pampered section of the population but to give to the minor- ities  a  sense of security and a  feeling  of  confidence." Later  dealing  with the ’scope’ and ’ambit’  of  the  right guaranteed by Art. 30(1), he said:               "The clause confers a right on all minorities,               whether  they  are based on religion  or  lan-               guage, to establish and administer educational               institutions  of their choice. The right  con-               ferred by the clause is in absolute terms  and               is not subject               259               to  restrictions  as  in the  case  of  rights               conferred  by Article 19 of the  Constitution.               The  right  of the  minorities  to  administer               educational  institutions does  not,  however,               prevent  the making of reasonable  regulations               in respect of those institutions, The  regula-               tions  have  necessarily  to be  made  in  the               interest  of  the institution  as  a  minority               educational  institution. They have to  be  so               designed  as to make it an  effective  vehicle               for imparting education. The right to adminis-               ter  educational institutions can plainly  not               include  the right to  maladminister.  Regula-               tions can be made to prevent the housing of an               educational institution in unhealthy surround-               ings  as  also to prevent the  setting  up  or               continuation  of  an  educational  institution               without  qualified  teachers.  The  State  can

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             prescribe regulations to ensure the excellence               of the institution. Prescription of  standards               for educational institutions does not militate               against the right of the minority to  adminis-               ter the institutions. Regulations made in  the               true  interests of efficiency of  instruction,               discipline,   health.  sanitation,   morality,               public  order and the like may undoubtedly  be               imposed. Such regulations are not restrictions               on the substance of the right which is guaran-               teed:  they secure the proper  functioning  of               the  institution, in matters educational  (see               observations  of  Shah J. in  Rev.  Sidhajbhai               Sabhai, supra p. 850). Further, as observed by               Hidayatullah  CJ.,  in the case of  very  Rev.               Mother  provincial (supra) the standards  con-               cern  the  body politic and  are  dictated  by               considerations  of  the  advancement  of   the               country and its people. Therefore, if  univer-               sities 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  stu-               dents.  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 allied matters cannot be denied.               The minority institutions cannot be allowed to               fail below the standards of excellence expect-               ed  of educational institutions, or under  the               guise  of  exclusive right of  management,  to               decline  to follow the general pattern.  While               the management must be left to them, they  may               be compelled to keep in step with others.               260                        It is, in my opinion, permissible  to               make  regulations  for  ensuring  the  regular               payment  of salaries before a particular  date               of  the  month. Regulations may  well  provide               that  the funds of the institution  should  be               spent for the purposes of education or for the               betterment  of  the institution  and  not  for               extraneous  purposes.  Regulations  may   also               contain provisions to prevent the diversion of               funds of institutions to the pockets of  those               incharge  of management or their  embezzlement               in  any other manner. Provisions for audit  of               the  accounts  of  the  institution  would  be               permissible regulation. Likewise,  regulations               may  provide  that  no  antinational  activity               would be permitted in the educational institu-               tions  and that those employed as  members  of               the  staff should not have been guilty of  any               activities  against  the  national   interest.               Minorities  are as much part of the nation  as               the majority, and anything that impinges  upon               national  interest  must  necessarily  in  its               ultimate operation affect the interests of all               those who inhibit this vast land  irrespective               of the fact whether they belong to the majori-               ty or minority sections of the population.  It               is,  therefore,  as much in  the  interest  of

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             minorities  as that of the majority to  ensure               that  the  protection  afforded  to   minority               institutions is not used as a cloak for  doing               something  which  is  subversive  of  national               interests. Regulations to prevent antinational               activities  in educational  institutions  can,               therefore, be considered to be reasonable.                        A  regulation  which is  designed  to               prevent  maladministration of  an  educational               institution  cannot be said to  offend  clause               (1) of article 30. At the same time it has  to               be  ensured  that under the  power  of  making               regulations  nothing is done as would  detract               from  the  character of the institution  as  a               minority  educational  institution  or   which               would  impinge upon the rights of the  minori-               ties  to establish and administer  educational               institutions  of their choice. The right  con-               ferred by article 30(1) is intended to be real               and  effective  and not a mere pious  and  ab-               stract  sentiment; it is a promise of  reality               and  not  a  teasing illusion.  Such  a  right               cannot  be allowed to be whittled down by  any               measure  masquerading  as  a  regulation.   As               observed  by  this Court in the case  of  Rev.               Sidhajbhai Singh (supra, regulations which may               lawfully  be imposed either by legislative  or               executive  action as a condition of  receiving               grant or of recognition               261               must  be  directed to making  the  institution               while  retaining  its  character  as  minority               institution effective as an educational insti-               tution.  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." Dealing  with  the  right of the management  of  a  minority educational  institution  to exercise  disciplinary  control over the teachers, he observed:               "Although disciplinary control over the teach-               ers  of  a  minority  educational  institution               would  be with the governing council,  regula-               tions, 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. Such provisions which are               calculated to safeguard the interest of teach-               ers  would  result in security of  tenure  and               this inevitably attract competent persons  for               the posts of teachers. Such a provision  would               also  eliminate a potential cause of  frustra-               tion  amongst the teachers.  Regulations  made               for this purpose should be considered to be in               the interest of minority educational  institu-               tions  and  as  such they  would  not  violate               article 30(1)." However, Khanna, J. held that Section 51A which gave blanket power to the Vice-Chancellor to veto the disciplinary action of  the management body and section 52A which  provided  for the nomination of an umpire by the Vice-Chancellor were both

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objectionable.  It is important to note here that  what  was considered  objectionable in Section 52A was not the  provi- sion for an Arbitration Tribunal but the right given to  the Vice-Chancellor  to nominate the Umpire. The  Learned  Judge said:               "It  may also be stated that there is  nothing               objectionable  to  selecting  the  method   of               arbitration  for settling major disputes  con-               nected with conditions of service of staff  of               educational  institutions. It may indeed be  a               desideratum. What is objectionable, apart from               what  has been mentioned above, is the  giving               of the power to the ViceChancellor to nominate               the Umpire. Normally in such dis-               262               putes  there  would be  hardly  any  agreement               between  the arbitrator nominated by the  gov-               erning  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’s 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(1) so far as minority  educational               institutions are concerned." Mathew,  J.  speaking for himself and  Chandrachud,  J.  ob- served:               "In considering the question whether a regula-               tion  imposing a condition subserves the  pur-               pose  for which recognition or affiliation  is               granted,  it  is necessary to have  regard  to               what regulation the appropriate authority  may               make  and impose in respect of an  educational               institution established and administered by  a               religious  minority and receiving to  recogni-               tion  or  aid. Such an  institution  will,  of               course, be subject to the general laws of  the               land  like the law of taxation,’ law  relating               to sanitation, transfer of property, or regis-               tration  of documents, etc., because they  are               laws  affecting not only educational  institu-               tions established by religious minorities  but               also  all other persons and  institutions.  It               cannot be said that by these general laws, the               State  in any way takes away or  abridges  the               right guaranteed under Article 30(1).  Because               article 30(1) is couched in absolute terms, it               does not follows that the right guaranteed  is               not subject to regulatory laws which would not               amount  to  its  abridgement. It  is  a  total               misconception to say that because the right is               couched in absolute terms, the exercise of the               right cannot be regulated or that every  regu-               lation  of that right would be an  abridgement               of the right." Again he said:               "The  question  to be asked  and  answered  is

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             whether  the particular measure is  regulatory               or whether it crosses the               263               zone of permissible regulation and enters  the               forbidden   territory   of   restrictions   or               abridgement. So, even if an educational insti-               tution established by a religious or  linguis-               tic minority does not seek recognition, affil-               iation  or aid, its activity can be  regulated               in  various ways provided the  regulations  do               not take away or abridge the guaranteed right.               Regular  tax measures,  economic  regulations,               social  welfare  legislation,  wage  and  hour               legislation  and  similar  measures  may,   of               course  have some effect upon the right  under               article  30(1).  But where the burden  is  the               same  as that borne by others engaged in  dif-               ferent  forms of activity, the similar  impact               on  the  right seems clearly  insufficient  to               constitute  an abridgement, if an  educational               institution established by a religious minori-               ty  seeks no recognition, affiliation or  aid,               the  state may have no right to prescribe  the               curriculum,  syllabi or the  qualification  of               the teachers.                        We find it impossible to subscribe to               the  proposition that State necessity  is  the               criterion  for deciding whether  a  regulation               imposed  on an educational  institution  takes               away  or  abridges  the  right  under  Article               30(1): If a legislature can impose any regula-               tion which it thinks necessary to protect what               in its view is in the interest of the State or               society,  the right under Article  30(1)  will               cease  to  be a fundamental right.  It  sounds               paradoxical  that a right which the  Constitu-               tion  makers  wanted  to be  absolute  can  be               subjected  to  regulations  which  need   only               satisfy the nebulous and elastic test of state               necessity.  The very purpose of  incorporating               this right in Part III of the Constitution  in               absolute  terms  in marked contrast  with  the               other  fundamental fights was to  withdraw  it               from the reach of the majority. To subject the               right  today  to regulations dictated  by  the               protean  concept  of state necessity  as  con-               ceived by the majority would be to subvert the               very purpose for which the right’ was given." The learned Judge also pointed out that where besides recog- nition or affiliation, an educational institution  conducted by a religious minority is granted aid, further  regulations for  ensuring that the aid is utilized for the  purpose  for which it is granted would be permissible. "The heart of  the matter"  said  the learned Judge. "is  that  no  educational institution established by a religious or linguistic minori- ty can claim total immunity from regulations by the legisla- ture or the university if it 264 wants  affiliation or recognition; but the character of  the permissible  regulations must depend upon their purpose.  As we  said, such regulations will be permissible if  they  are relevant to the purpose of securing or promoting the  object of  recognition  or affiliation." Referring to  Section  51A Mathew, J. said that uncanalized power without any guideline to  withhold approval would be a direct abridgement  of  the

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right  of the management to dismiss or remove a  teacher  or inflict  any other penalty after conducting an enquiry.  He, however, took care to point out that it would be 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 to be heard in his  defence. The  objection was to the blanket power given to  the  Vice- Chancellor  without  any guideline as to the manner  of  its exercise.  Referring to Section 52A, the learned Judge  felt that  it  subserves no purpose and would  lead  to  needless interference with the day-to-day management of the  institu- tion.  Every  petty dispute raised by the teaching  or  non- teaching  staff would have to be referred to arbitration  if it seemed to touch the service conditions. "Arbitration, not in parting education, will become the business of education- al institutions", said the learned Judge. Beg, J. and Dwive- di,  J.  who appeared to constitute the  minority  delivered separate  opinions and it is sufficient to say that both  of them upheld the vires of Section 51A and Section 52-A.     In  All  Saints High School etc. v.  The  Government  of Andhra Pradesh, A.I.R. 1980 SC 1042. Chandrachud, C.J. after referring to several earlier decisions of the Court said,               These  decisions show that while the right  of               the  religious  and linguistic  minorities  to               establish and administer educational  institu-               tions  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 education-               al  standards of an institution, it is  neces-               sary 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  dis-               missed  from  service or  their  services  are               terminated  are all permissible measures of  a               regulatory character."               265 Section 3(1) of the impugned Act in that case provided  that no  teacher employed in any private educational  institution shall  be  dismissed,  removed or reduced in  rank  nor  his appointment  otherwise  terminated  except  with  the  prior approval  of  the  competent authority.  The  provision  was struck down on the ground that it gave wide and untrammelled discretion  to  interfere  with the  management’s  right  to dismiss,  remove, reduce in rank or otherwise terminate  the teacher’s  services.  However Section 3(3)  (which  provided that no teacher shall be placed under suspension except when an  inquiry  into the gross misconduct of such  teacher  was contemplated)  was upheld as not violative of Article  30(1) of  the  Constitution. Chandrachud, C.J. observed  that  the provision  was founded so patently on plain reason  that  it was impossible to construe it as an invasion of the right to administer an institution, unless that right carried with it the  right  to maladminister. Section 4 of the  Act  made  a provision  for  an  appeal against an  order  of  dismissal, removal,  reduction  in  rank or  otherwise  termination  of appointment or alteration to the teacher’s disadvantaged  of pay  or allowances or any other conditions of service.  This provision  was  also struck down as unconstitutional  as  it gave a right of appeal both on fact and law thereby throwing open  the order of the management to the  Unguided  scrutiny

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and  unlimited review of the appellate authority. Section  8 required  the  management to obtain prior  approval  of  the competent  authority  if retrenchment  of  teacher  rendered necessary by any order of the Government relating to  educa- tion  or  course of instruction or any  other  matter.  This provision was upheld as valid. Section 7 which provided 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 as may be prescribed was held to  regulatory in  character. Fazal Ali, J. after quoting in  extenso  from the  earlier  judgments  of the Court and  culling  out  the principles  which according to him emerged from the  earlier decisions say,               "It  is, therefore, open to the Government  or               the University to frame rules and  regulations               governing the conditions of service of  teach-               ers 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 vitiated 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 efficien-               cy  of  the education because  a  really  good               education can be received only if the tone and               temper of the teachers are               266               so  flamed as to 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." Fazal Ali, J. held that Section 3(2) was violative of  Arti- cle 30(1) of the Constitution and would have no  application to  minority institutions. He was of the view  that  Section (3),  Sub-section  (3), sub-clauses (a) and  (b)  were  also violative  of Article 30(1) of the Constitution. The  provi- sion  for an appeal in Section 4 and the  provision  against retrenchment  contained  in Section 6 were both held  to  be inapplicable to minority institutions. Section 7 was  upheld as  innocuous. Kailasam, J. after referring to  the  earlier cases stated as follows:--               "A reading of the decisions referred to  above               makes it clear that while the right to  estab-               lish  and  administer a  minority  institution               cannot be interferred 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               properly  staffed.  Conditions  imposing   the               minimum qualifications of the staff, their pay               and other benefits, their service  conditions,

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             the  imposition  of  punishment  will  all  be               covered and regulations of such a nature  have               been held to be valid. In the case of institu-               tions  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."               267 Kailasam, 1. was of the view that the whole of section 3 was valid. There were sufficient guidelines indicated in the Act for  the exercise of the powers under Section 3(1) and  (2). Sections 3(3)(a)(b) and 3(4) were intended to safeguard  the teachers  from  suspension for unduly long  periods  without there  being an enquiry into gross misconduct and could  not be said to interfere with the right of administration of the private  institutions.  With  regard  to  Section  3(4)  the learned Judge said it was purely regulatory. Sections 6  and 7 were also upheld.     Thus,  there,  now, appears to be a  general  and  broad consensus about the content and dimension of the Fundamental Right  guaranteed by Article 30(1) of the Constitution.  The right  guaranteed to religious and linguistic minorities  by Art.  30(1)  is  two fold, to establish  and  to  administer educational  institutions  of their choice. The key  to  the Article lies in the words "of their own choice". These words indicate  that the extent of the right is to be  determined, not  with  reference to any concept of State  necessity  and general  societal interest but with reference to the  educa- tional  institutions themselves, that is, with reference  to the  goal of making the institutions "effective vehicles  of education  for the minority community or other  persons  who resort  to them". It follows that regulatory measures  which are  designed towards the achievement of the goal of  making the minority educational institutions effective  instruments for imparting education cannot be considered to impinge upon the  right guaranteed by Article 30(1) of the  Constitution. The question in each case is whether the particular  measure is, in the ultimate analysis, designed to achieve such goal, Without  of course nullifying any part of the right of  man- agement  in substantial measure. The provisions embodied  in Sections 8 to 11 of the Delhi Schools Education Act may  now be  measured alongside the Fundamental Right  guaranteed  by Article  30(1) of the Constitution to determine whether  any of  them  impinges on that fundamental right. Some  like  or analogous  provisions have been considered in the  cases  to which  we have referred. Where a provision has been  consid- ered  by the Nine Judge Bench in Ahmedabad St. Xaviers  Col- lege  v. State of Gujarat (supra), we will  naturally  adopt what has been said therein and where the Nine Judge Bench is silent we will have recourse to the other decisions.     The  principal controversy between the  parties  centred around Section 10 which requires that "the scales of pay and allowances, medical facilities, pension, gratuity, provident fund, and other prescribed benefits of the employees of  the recognised  private school shall not be less than  these  of

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the corresponding status run by the appro- 268 priate authority". The submission on behalf of the  respond- ents was that the right to appoint members of staff being an undoubted right of the management and the right to stipulate their salaries and allowances etc. being part of their right to  appoint,  such right could not be taken  away  from  the management   of   a  minority   institution.   The   learned Solicitor-General  very fairly stated before us  that  there was no case in which it had been held that the right to  pay whatever  salaries and allowances they liked  and  stipulate whatever  conditions  they liked was part of  the  right  to administer the minority institutions under Article 30(1)  of the Constitution. On the other hand as we shall  immediately point out there are observations to the contrary.     In  the Nine Judge Bench case, Ray, CJ. and Palekar,  J. as we have already seen, expressed the view that the  condi- tions  of  employment of teachers was a  regulatory  measure conducive to uniformity, efficiency and excellence in educa- tional courses and did not violate the fundamental right  of the  minority  institutions  under  Article  30.  Jaganmohan Reddy,  J. and Alagiriswami, J. who agreed with the  conclu- sions  of  Ray, C.J. did not say  anything  expressly  about salary,  allowances  and other conditions of  employment  of teachers.  Khanna, J. expressed the view that to  a  certain extent the State may also regulate the conditions of employ- ment  of teachers and added that it would be permissible  to make  regulations for ensuring the regular payment  of  sal- aries  before  a particular date of the  month.  The  latter statement of Khanna, J., it was a contended for the respond- ents,  limited  the  extent of the right of  the  State.  to regulate the conditions of employment of teachers. We cannot agree with this contention. The statement that the State may make  regulations for ensuring the regular payment  of  sal- aries before a particular date of the month was in  addition to what was said earlier that to a certain extent the  State may also regulate the conditions of employment of  teachers. In  fact,  while dealing with the question  of  disciplinary control, Khanna, J., also said that provisions calculated to safeguard the interest of teachers would result in  security of  the tenure and that would inevitably  attract  competent persons  for  the posts of teachers. The same thing  may  be said  about  better scales of pay and decent  conditions  of service.  Mathew, J. with whom Chandrachud, J.  agreed  also indicated that economic regulations, social welfare legisla- tion, wage and hour legislation and similar measures,  where the burden was the same as that borne by others would not be considered an abridgement of the right guaranteed by Article 30(1).  Thus,  we see that most of the  learned  Judges  who constituted  the Nine Judge Bench were inclined to the  view that prescription of conditions of service which would. have the effect of attracting better 269 and competent teachers would not be considered violative  of the  fundamental  right guaranteed by Article 30(1)  of  the Constitution.  That  would rightly be so  because  the  mere prescription of scales of pay and other conditions of  serv- ice  would  not jeopardise the right of  the  management  of minority institutions to appoint teachers of their choice.     The excellence of the instruction provided by an  insti- tution would depend directly on the excellence of the teach- ing staff, and in turn, that would depend on the quality and the  contentment  of  the teachers.  Conditions  of  service pertaining  to  minimum qualifications  of  teachers,  their salaries,  allowances and other conditions of service  which

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ensure security, contentment and decent living standards  to teachers  and which will consequently enable them to  render better  service  to the institution and  the  pupils  cannot surely  be  said to be violative of  the  fundamental  right guaranteed by Art. 30(1) of the Constitution- The management of  a minority Educational institution cannot  be  permitted under the guise of the fundamental right guaranteed by  Art. 30(1) of the Constitution, to oppress or exploit its employ- ees any more than any other private employee. Oppression  or exploitation of the teaching staff of an educational  insti- tution  is  bound  to lead, inevitably,  to  discontent  and deterioration of the standard of instruction imparted in the institution  affecting  adversely the object of  making  the institution an effective vehicle of education for the minor- ity community or other persons who resort to it. The manage- ment of minority institution cannot complain of invasion  of the fundamental right to administer the institution when  it denies  the members of its staff the opportunity to  achieve the very object of Art. 30(1) which is to make the  institu- tion an effective vehicle of education.     Apart  from the learned Judges who constituted the  Nine Judge  Bench, other learned Judges have also  indicated  the same view. In the leading case of the Kerala Education Bill, the Constitution Bench observed that, as then advised,  they were  prepared to treat the clauses which were  designed  to give  protection and security to the ill paid  teachers  who were engaged in rendering service to the nation as permissi- ble  regulations.  The observations were no  doubt  made  in connection with the grant of aid to educational institutions but  that cannot make any difference since, aid, as we  have seen,  cannot  be made conditional on the surrender  of  the right  guaranteed  by Article 30(1). In State of  Kerala  v. Mother  Provincial, (supra), it was said that to  a  certain extent  the State may regulate conditions of  employment  of teachers. In All Saints High School. v. Government of Andhra Pradesh, 270 Chandrachud, C.J., expressly stated that for the maintenance of educational standards of an institution it was  necessary to  ensure  that it was competently staffed  and  therefore, conditions of service prescribing minimum qualifications for the  staff, their pay-scales, their entitlement other  bene- fits  of-service and the safeguards which must  be  observed before they were removed or dismissed from service or  their services terminated were permissible measures of a regulato- ry character. Kailasam, J. expressed the same view in almost identical  language. We, therefore, hold that Section 10  of the  Delhi Education Act which requires that the  scales  of pay  and allowances, medical facilities, pension,  gratuity, provident fund and other prescribed benefits of the  employ- ees  of a recognised private school shall not be  less  than those  of  the  employees of  the  corresponding  status  in schools  run by the appropriate authority and which  further prescribes the procedure for enforcement of the  requirement is  a permissible regulation aimed at  attracting  competent staff and consequently at the excellence of the  educational institution. It is a permissible regulation which in no  way ’detracts  from  the fundamental right  guaranteed  by  Art. 30(1),  to  the minority institutions  to  administer  their educational  institutions.  Therefore, to  the  extent  that Section 12 makes Section 10 inapplicable to unaided minority institutions, it is clearly discriminatory.     Section  8(1) merely empowers the Administrator to  make rules regulating the minimum qualifications for recruitment, and the conditions of service of recognised private schools.

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Section  8(1)  is  innocuous and in fact  Section  13  which applies  to unaided minority schools is almost on  the  same lines  as Section 8(1). The objection of the respondents  is really to Section 8(2), 8(3), 8(4) and 8(5) whose effect  is (1)  to require the prior approval of the Director  for  the dismissal,  removal, reduction in rank or other  termination of  service of an employee of a recognised  private  school, (2) to give a right of appeal to a Tribunal consisting of  a single member who shall be a District Judge or who has  held an equivalent judicial office, (3) to require prior approval of  the  Director if it is proposed to suspend  an  employee unless  immediate suspension is necessary by reason  of  the gross  misconduct of the employee in which case the  suspen- sion shall remain in force for not more than 15 days  unless approval  of the Director is obtained in the mean while.  In the Nine Judge Bench case Ray, C.J. and Palekar, J. took the view that Section 51A of the Gujarat Act which provided that no  member  of the staff of an affiliated college  shall  be dismissed,  removed or reduced in rank except with  the  ap- proval of the Vice-Chancellor was violative of Article 30(1) as  it conferred arbitrary power on the  Vice-Chancellor  to take away rights of the minority institutions. Simi- 271 larly,  Section  52A  which contemplated  reference  of  any dispute  connected  with conditions of service  between  the governing body and any member of the staff to an Arbitration Tribunal consisting of one member nominated by the governing body, one member nominated by the member of the staff and an umpire appointed by the Vice Chancellor was also held to  be violative of Article 30(1). It was said that this  provision would  introduce an area of litigious controversy in  educa- tional  institutions and displace the domestic  jurisdiction of  the management. Jaganmohan Reddy, J.  and  Alagiriswami, J.,  agreed  with the conclusions of Ray,  C.J.  Khanna,  J. thought  that the blanket power given by Section 51A to  the Vice-Chancellor  to  veto the disciplinary  action  and  the power given by Section 52A to the Vicechancellor to nominate an  umpire were both objectionable, though he observed  that there  was nothing objectionable in selecting the method  of arbitration  for settling major disputes. Mathew,  J.,  also objected  to the blanket power given to the  Vice-Chancellor by  Section  51A. He also thought that Section 52A  was  too wide  and  permitted  needless  interference  in  day-to-day affairs  of the institution by providing for arbitration  in petty disputes also. Keeping in mind the views of the sever- al  learned Judges, it becomes clear that Section 8(2)  must be  held to be objectionable. Section 8(3) provides  for  an appeal  to the Tribunal constituted under Section  11,  that is, a Tribunal consisting of a person who has held office as a  District  Judge or any equivalent  judicial  office.  The appeal is not to any departmental official but to a Tribunal manned  by a person who has held office as a District  Judge and  who is required to exercise his powers not  arbitrarily but  in the same manner as a court of appeal under the  Code of  Civil Procedure. The right of appeal itself is  confined to  a  limited class of cases, namely, those  of  dismissal, removal  or reduction in rank and not to every  dispute  be- tween  an employee and the management. The limited right  of appeal,  the character of the authority constituted to  hear the  appeal and the manner in which the appellate  power  is required  to be exercised make the provision for  an  appeal perfectly  reasonable,  in our view. The  objection  to  the reference to an Arbitration Tribunal in the Nine Judge Bench case  was to the wide power given to the Tribunal to  enter- tain  any  manner of dispute and the provision for  the  ap-

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pointment  of umpire by the Vice-Chancellor.  Those  defects have been cured in the provisions before us. Similarly,  the provision  for  an appeal to the  Syndicate  was  considered objectionable  in  State  of Kerala.  v  Mother  Provincial, (supra), as it conferred the right on the university.     Section 8(4) would be inapplicable to minority  institu- tions  if it had conferred blanket power on the Director  to grant or withhold 272 prior approval in every case where a management proposed  to suspend  an employee but we see that it is not so. The  man- agement  has the right to order immediate suspension  of  an employee in case of gross misconduct but in order to prevent an abuse of power by the management a safeguard is  provided to  the employee that approval should be obtained within  15 days.  The Director is also bound to accord his approval  if there  are adequate and reasonable grounds for such  suspen- sion.  The provision appears to be eminently reasonable  and sound  and  the  answer to the question in  regard  to  this provision is directly covered by the decision in All  Saints High School, where Chandrachud, C.J. and Kailasam, J. upheld Section  3(3) (a) of the Act impugned therein. We  may  also mention  that in that case the right of appeal conferred  by Section 4 of the Act was also upheld. How necessary it is to afford  some  measure of protection  to  employees,  without interfering with the management’s right to take disciplinary action, is illustrated by the action taken by the management in this very case against some of the teachers. These teach- ers  took part along with others in a ’silent march’,  first on April 9, 1986 and again on April 10, 1986, despite  warn- ing  by the principal. The march was during the  break  when there  were no classes. There were no speeches, no  chanting or  shouting  of slogans, no violence and no  disruption  of studies. The behaviour of the teachers appears to have  been orderly  and  exemplary.  One would have  thought  that  the teachers  were, by their silent and dignified protest,  set- ting an example and the soundest of precedents to follow  to all agitators everywhere. But instead of sympathy and appre- ciation  they were served with orders of  immediate  suspen- sion,  something which would have never happened if all  the provisions of Section 8 were applicable to the institution.     Thus, Sections 8(1), 8(3), 8(4) and 8(5) do not encroach upon any right of minorities to administer their educational institutions.  Section 8(2), however, must, in view  of  the authorities,  be  held  to interfere with  such  right  and, therefore, inapplicable to minority institutions. Section  9 is again innocuous since Section 14 which applies to unaided minority  schools is virtually on the same lines as  Section 9. We have already considered Section 11 while dealing  with Section 8(3). We must, therefore, hold that Section 12 which makes  the provisions of Chapter IV inapplicable to  unaided minority schools is discriminatory not only because it makes Section  10 inapplicable to minority institutions, but  also because  it makes sections 8(1), 8(3), 8(4), 8(5), 9 and  11 inapplicable  to  unaided minority  institutions.  That  the Parliament did not understand Sections 8 to 11 as  offending the  fundamental  right guaranteed to the  minorities  under Article 30(1) is 273 evident  from  the  fact that Chapter IV  applies  to  aided minority institutions and it cannot for a moment be suggest- ed  that surrender of the right under Article 30(1)  is  the price  which the aided minority institutions have to pay  to obtain aid from the Government.     The  result of our discussion is that Section 12 of  the

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Delhi  School  Education Act which makes the  provisions  of Chapter IV inapplicable to unaided minority institutions  is discriminatory  and void except to the extent that it  makes Section 8(2) inapplicable to unaided minority  institutions. We, therefore, grant a declaration to that effect and direct the  Union  of India and the Delhi  Administration  and  its officers,  to enforce the provisions of Chapter  IV  (except ’Section  8(2) in the manner provided in the Chapter in  the case  of the Frank Anthony Public School. The management  of the  school is directed not to give effect to the orders  of suspension passed against the members of the staff.     After the arguments of both sides were fully heard, Shri Sushil Kumar who appeared for the institution along with Mr. Anthony submitted that according to the instructions of  the Council for the Indian School Certificate Examination,  "the staff  must be paid salaries and allowances not  lower  than those paid in comparable to Government schools in the  State in which the school is located" and in view of this instruc- tion it was not necessary for us to go into the question  of the applicability of Section 10 to minority institutions. We do not attach any significance to this last minute,  desper- ate submission. It is not clear whether the instruction is a condition  imposed by the Council pursuant to S. 10  of  the Delhi  School  Education Act. There is no way by  which  the staff  can seek to enforce the instruction. Nor is  the  in- struction  of any relevance since it is not the case of  the respondents  that the institution is paying or is  agreeable to pay the scales of pay stipulated in the instruction.      We  must refer to the submissions of Mr. Frank  Anthony regarding  the  excellence of the institution and  the  fear that the institution may have to close down if they have  to pay higher scales of salary and allowances to the members of the staff. As we said earlier the excellence of the institu- tion is largely dependent on the excellence of the  teachers and it is no answer to the demand of the teachers for higher salaries to say that in view of the high reputation  enjoyed by the institution for its excellence, it is unnecessary  to seek to apply provisions like Section 10 of the Delhi School Education  Act  to the Frank Anthony Public School.  On  the other hand, we should think that the very contribution  made by the teachers to earn for the institution the 274 high reputation that it enjoys should spur the management to adopt at least the same scales of pay as the other  institu- tions  to which Section 10 applies. Regarding the  fear  ex- pressed by Shri Frank Anthony that the institution may  have to  close down we can only hope that the management will  do nothing  to the nose to spite the face, merely to  ’put  the teachers  in their proper place’. The fear expressed by  the management  here  has the same ring as  the  fear  expressed invariably  by the management of every industry that  disas- trous results would follow which may even lead to the  clos- ing down of the industry if wage scales are revised. S.R.                                                Petition allowed. 275