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PETITIONER: BIHAR STATE MADARASA EDUCATION BOARD,PATNA, THROUGH ITS CHAI

       Vs.

RESPONDENT: MANAGING COMMITTEE OF MADARASA HANFIAARABIC COLLEGE JAMALIA

DATE OF JUDGMENT05/12/1989

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) KASLIWAL, N.M. (J)

CITATION:  1990 AIR  695            1989 SCR  Supl. (2) 399  1990 SCC  (1) 428        JT 1989  Supl.    368  1989 SCALE  (2)1468

ACT:     Bihar  State  Madarasa  Education Board  Act,  1982:  S. 7(2)(n)-Board’s  power  to dissolve  managing  committee  of Madarasa  institution-Whether ultra vires Article  30(1)  of the Constitution.     Constitution  of  India,   1950:  Article   30(1)--Bihar Madarasa  Education Board--Power to dissolve  managing  com- mitof    Madarasa   institution--Constitutionality    of--S. 7(2)(n), Bihar State Madarasa Education Board Act, 1982.

HEADNOTE:     Section  7(2)(n) of the Bihar State  Madarasa  Education Board  Act, 1982 confers power on the State Madarasa  Educa- tion  Board to dissolve the managing committee of  an  aided and  recognised  Madarasa  institution.  The  committees  of management of the respondent institutions established by the Muslim  minority community failed to comply with the  direc- tions  issued by the Board with regard to payment of  salary to  teachers, whereupon the Board in exercise of  its  power under s. 7(2)(n) of the Act dissolved the said committees.     The  respondents filed writ petitions under Article  226 of  the  Constitution  assailing s. 7(2)(n) of  the  Act  as violative of Article 30(1) on the ground that it  interfered with  their  right of management of institutions.  The  High Court  declared  s. 7(2)(n) unconstitutional-  It,  however, observed that the majority of members of the Madarasa Educa- tion  Board  and  its Chairman may not  belong  to  minority community,  therefore, the Board’s constitution will not  be in consonance with the minorities constitutional right under Article 30 of the Constitution. Dismissing the appeals by the Board, the Court,     HELD: 1. Article 30(1) of the Constitution protects  the right of minorities to establish and administer  educational institutions  of  their choice. The rights so  granted  are, however, not absolute. Minorities have no right to  malamin- ister. The State has power to impose regula- 400 tions  made in the interest of efficiency  of  institution’s discipline, health, sanitation and public order even  though such  regulations  may indirectly impinge on  the  exclusive right  of administration and management of the  institution.

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The State has, however, no power to completely take over the management  of  a minority institution under  the  guise  of regulating  the  educational  standards  by  superseding  or dissolving  managing committee or by appointing ad hoc  com- mittees in place thereof. [403D-F; 404C-E]     In  the  instant  case, s. 7(2)(n) of  the  Bihar  State Madarasa Education Board Act, 1982 in so far as it  provides for dissolution of the managing committee of a Madarasa  is, clearly  violative  of constitutional  right  of  minorities under Article 30(1) of the Constitution. [404E-F]     In re Kerala Education Bill 1957, [1959] SCR 995; Sidha- rajbhai  v.  State of Gujarat, [1963] 3 SCR  837;  State  of Kerala  v.  Very Rev. Mother Provincial etc., [1971]  1  SCR 734;  Ahmedabad  St.  Xaviers College Society  v.  State  of Gujarat, [1975] 1 SCR 173; Lilly Kurian v. Lawina, [1979]  1 SCR  820 and All Bihar Christian Schools Assn. v.  State  of Bihar, [1988] 1 SCC 206, referred to.     2.  Article 30(1) of the Constitution does  not  contem- plate  that an autonomous Educational Board  entrusted  with the  duty of regulating efficiency in the aided  and  recog- nised  minority institutions, should be  constituted  exclu- sively  by persons belonging to the minority  community.  In the  instant case, the constitution of the Board under s.  3 of  the Act ensures that its members are only those who  are interested  in teaching and research in Persian, Arabic  and Islamic studies. This provision fully safeguards the  inter- est  of Madarasa of the Muslim community.  The  observations made by the High Court are contrary to the scope of  Article 30(1) of the Constitution. [404H; 405A, B-C]

JUDGMENT:     CIVIL  APPELLATE  JURISDICTION: Civil  Appeal  Nos.  463 and464 of 1986.     From  the  Judgment and Order dated 6.11.  1984  of  the Patna High Court in Civil Writ Jurisdiction Case No. 3489 of 1981 & 601 of 1982. M. Qamaruddin and Mrs. M. Qamaruddin for the Appellant. S.N. Misra, M.K. Jha and P.C. Kapur for the Respondent. The Judgment of the Court was delivered by 401     SINGH,  J.  These two appeals are directed  against  the judgment and order of High Court of Patna dated November  6, 1989, quashing the order of the Bihar State Madarasa  Educa- tion Board dissolving the Managing Committee of the respond- ent’s institution.     The  State Legislature of Bihar enacted the Bihar  State Madarasa Education Board Act (Act 32 of 1982) providing  for the constitution of an autonomous Board for development  and supervision  of  Madarasa education in the State  of  Bihar. "Madarasa"  as  defined by Section 2  means  an  educational institution  providing instructions in Islamic,  Arabic  and Persian  studies  and recognised as such by the  Board.  The ’Board’ means the Board established under Sec. 3 of the Act. Section  3 provides for the constitution of  State  Madarasa Education  Board  which is a body corporate  with  perpetual succession and a common seal. The Board consists of a Chair- man appointed by the State Government, Director of Education (Incharge  of Oriental Education), Director, Institution  of Post-graduate  Studies and Research in Arabic  and  Persian, Patna, the Principal, Madarasa Islamia, Shamsul Hoda, Patna, Chairman,  Bihar  Sunni Wakf Board, Patna,  Chairman,  Bihar Shia Wakf Board, Patna, two members of the State Legislature nominated  by  the Government having  interest  in  Madarasa

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Education or Islamic studies, two senior teachers of  recog- nised Madarasa nominated by the State Government, and  three other  members  nominated by the State Government  who  have interest in Madarasa education or Islamic studies. The Board is  invested  with powers and functions to provide  for  in- struction and research in Arabic, Persian and Islamic  stud- ies and to advise the State Government on all matters relat- ing  to  Madarasa education. The Act empowers the  Board  to direct,  supervise and control Madarasa education, to  grant recognition to Madarasas in accordance with the  regulations framed by it, to conduct different Madarasa examination,  to publish results, to make regulations prescribing  conditions of  employees of the Board, to provide for the  constitution of the Managing Committee, to constitute academic committee, recognition committee, examination committee, and for carry- ing on its powers and functions in regulating the  education in Madarasa institutions. The Board is headed by a  Chairman nominated  by the State Government under Sec. 10(2)  of  the Act,  it  lays  down that no person shall  be  eligible  for appointment as Chairman unless he holds adequate administra- tive experience under the Central or State Government and he has  teaching  or research experience for not less  than  10 years  in  post-graduate educational institutions or  he  is regarded scholar in Arabic, Persian, Islamic studies and  he is interested in Madarasa education. The Board as constitut- ed by the 402 Act  is an autonomous body entrusted with the duty to  grant recognition,  aid, supervise and control the academic  effi- ciency in the Madarasa institutions, aided and recognised by it.  The members of the Board consist of those  persons  who are  connected  with or interested in the teaching  and  re- search of Arabic, Persian and Islamic studies, and interest- ed  in the Madarasa education. The Legislature  has  enacted the Act with the primary purpose of providing an  autonomous educational  authority  for  regulating  the  efficiency  of Madarasa  institutions where studies are carried on in  Ara- bic, Persian and Islamic studies.     The  Hanfia Arabic College Jamalia and Madarasa  Shamsul Uloom  the respondent’s institutions are  Madarasa  institu- tions aided and recognised by the Board under the provisions of  the Act, as such the respondent’s institutions are  sub- ject to the provisions of the Act and the regulations framed by  the  Board in matters relating to their  management  and administration.  The  Committees of Management  of  the  two respondent institutions failed to comply with the directions issued  by  the Board with regard to payment  of  salary  to teachers, whereupon the Board in exercise of its power under Section 7(2)(n) of the Act dissolved the Managing  Committee of the respondent’s institution and appointed ad hoc Commit- tee  to manage the institutions. The outgoing Managing  Com- mittee  of  the respondent’s institutions and  some  of  the affected  members  of  the Committee  filed  writ  petitions before  the  High Court of Patna under Article  226  of  the Constitution challenging the Order of the Board,  dissolving the Committee of Management and appointing ad hoc Committee. Before  the High Court, the respondents submitted that  Sec. 7(2)(n)  of  the  Act which confers power on  the  Board  to dissolve  Managing Committee of a Madarasa is  violative  of Article  30(1)  of the Constitution as  it  interfered  with their  right of management of institutions. The  High  Court upheld  the  respondent’s  plea and  declared  Sec.  7(2)(n) unconstitutional  as it confers power on the Board  to  dis- solve  Committee of Management of a Madarasa. The Board  has preferred  this appeal by leave against the aforesaid  judg-

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ment of the High Court.               Section 7(2)(n) reads thus:               "7.  Power and functions of the Board: (1)  It               shall be the duty of the Board to provide  for               instruction  and research in  Arabic,  Persian               and Islamic studies and such other branches of               knowledge  including  vocational  courses  and               training  which  the Board thinks fit  and  to               advise  the  State  Government  on  all  other               matters relating to Madarasa Education.               403               (2) Subject to the provisions of this Act  and               the Rules and Regulations made thereunder  the               Board  shall have the power to direct,  super-               vise  and  control Madarasa Education  and  in               particular have the powers               (n) To get the Managing Committee of Madarasas               constituted in a manner such as to include the               Head  Maulvi, two  guardians’  representatives               and one member nominated by the Board and  two               other persons interested in Madarasa Education               or Islamic studies to be composed by the above               seven  members.  The  power  to  dissolve  the               Managing Committee shall vest in the Board."     The  above provision confers power on the Board to  pro- vide for constitution and dissolution of Managing  Committee of  a  Madarasa.  There is no dispute  that  the  respondent Madarasas  are educational institutions established  by  the Muslim minority community. Article 30(1) of the Constitution protects the right of minorities to establish and administer educational  institutions  of their choice. The  Article  in terms  grants  all minorities two rights (i)  the  right  to establish  and  (ii)  the right  to  administer  educational institution  of  their choice. The rights  so  granted  are, however,  not  absolute, a  minority  institution  obtaining financial  aid  and  recognition is  subject  to  reasonable restrictions to ensure excellence in the institution.  While minorities  have a constitutional right to establish and  to administer  educational institutions of their  choice,  they have no absolute right to maladminister, the State has right to impose regulations made in the interest of efficiency  of institution’s  discipline,  health,  sanitation  and  public order even though such regulations may indirectly impinge on the exclusive right of administration and management of  the institution. A minority institution seeking aid and recogni- tion  must  be subject to regulatory  provisions  which  are reasonable and consistent with Article 30(1) of the  Consti- tution.  A minority institution which does not seek  aid  or recognition  from the State or the Education Board need  not be  subject to regulatory provisions. These principles  have been settled by this Court in re Kerala Education Bill 1957, [1959]  SCR 995, Sidharajbhai v. State of Gujarat, [1963]  3 SCR  837, [1971] 1 SCR 734, [1975] 1 SCR 173, [1979]  1  SCR 820 and [1988] 1 SCC 206.     The  question which arises for consideration is  whether Section 7(2)(n) which confers power on the Board to dissolve the managing 404 committee  of an aided and recognised  Madarasa  institution violates  the minorities constitutional right to  administer its educational institution according to their choice.  This Court  has  all along held that though the  minorities  have right to establish and administer educational institution of their own choice but they have no right to maladminister and the  State has power to regulate management and  administra-

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tion  of  such institutions in the interest  of  educational need and discipline of the institution. Such regulation  may have indirect effect on the absolute right of minorities but that would not violate Art. 30(1) of the Constitution as  it is the duty of the State to ensure efficiency in educational institutions. The State has, however, no power to completely take  over the management of a minority  institution.  Under the  guise  of the regulating the educational  standards  to secure efficiency in institution, the State is not  entitled to  frame rules or regulations compelling the management  to surrender  right  of administration. In State of  Kerala  v. Very Rev. Mother Provincial etc., [1971] I SCR 734,  Section 03(1)  of  the Kerala University Act, 1969  which  conferred power  on  the Government to take over the management  of  a minority  institution  on its default in  carrying  out  the directions of the State Government was declared ultra  vires on  the ground that the provisions interfered with the  con- stitutional  right of a minority to administer its  institu- tion. Minority institutions cannot be allowed to fall  below the standard of excellence on the pretext of their exclusive right of management but at the same time their constitution- al  right  to administer their institutions cannot  be  com- pletely  taken  away by superseding or  dissolving  managing committee or by appointing ad hoc committees in place there- of. In the instant case Section 7(2)(n) is clearly violative of constitutional fight of minorities under Article 30(1) of the Constitution in so far as it provides for dissolution of managing  committee  of a Madarasa. We agree with  the  view taken by the High Court.     We  have  upheld the view taken by the High  Court  with regard to the validity of Section 7(2)(n) of the Act but  we do not agree with the observations made by the High Court in paragraphs  9  and  10 of its judgment with  regard  to  the constitution  of the Board and appointment of its  Chairman. The High Court has observed that the majority of the members of  the  Board and its Chairman may not belong  to  minority community, therefore the Board’s constitution will not be in consonance  with the minorities constitutional  right  under Article  30  of the Constitution. In our opinion,  the  view taken  by the High Court is not correct. Article 30(1)  does not  contemplate  that an autonomous Educational  Board  en- trusted with the duty of regulating the aided and 405 recognised  minorities  institution, should  be  constituted only  by  persons belonging to minority  community.  Article 30(1) protects the minorities right to manage and administer institutions established by them according to their  choice, but while seeking aid and recognition for their institutions there is no constitutional obligation that the Board  grant- ing aid or recognition or regulating efficiency in  minority institution should consist of members exclusively  belonging to  minority communities. In the instant case the  constitu- tion  of the Board under Section 3 of the Act  ensures  that its  members are only those who are interested  in  teaching and  research of Persian, Arabic and Islamic  studies.  This provision  fully safeguards the interest of Madarasa of  the Muslim  community. We therefore hold that observations  made by the High Court in paragraphs 8 and 9 of its judgment  are contrary to the scope of Article 30(1) of the Constitution.     With these observations we agree with the view taken  by the High Court in quashing the order of the Board dissolving the managing committee of the respondent’s institutions  and appointing  ad-hoc committee. The appeals fail and  are  ac- cordingly dismissed. There will be no order as to costs. P.S.S.                                               Appeals

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dismissed. 406