Judgment:
Jeevan Reddy, J.
1. When does an educational institution become a 'minority educational institution within the meaning of, and for the purpose of Art. 30 of the Constitution? That is the question arising in these writ petitions. The question is of great significance because the character of a minority educational institution carries with it a good amount of privilege and protection, which is not available to non-minority educational institutions. In the matter of recruitment of staff, admission of students disciplinary control over staff and students and in many other respects, these institutions are very much free of governmental control. Probably for this reason we find a surfeit of institutions claiming this character minorities are of two types - religious and linguistic. In the State of Andhra Pradesh, and for the purposes of laws made by the A. P. Legislature, all those whose mother-tongue is not Telugu are linguistic minorities. Similarly, all nore Hindus are minorities. Even among the Hindu fold, several denominations and sects have been recognized as religious minorities for the purpose of Art. 30. For example, Arya Samajists are recognized as a religious minority : AIR1971SC1737 ; Brahmo Samajists are recognized as a religious minority; (see : AIR1962Pat101 (FB)). Similarly, even within Christian religion, the Church of South India is recognized as a denomination among Christians within the meaning of Art 30; (see : AIR1969Ker191 ). On this reasoning, man other denominations and sects within each religion can claim the minority status: a truly confusing and uncertain situation. Instances have come to the notice of this Court where a person, a family or a group of persons (whether as a group or as a society) belonging to a religious or linguistic minority, has established an educational institution and promptly claimed minority educational institution status for it. The institution so established imparts purely secular education. It has no programme or course promoting the language (if it claims to be a linguistic minority), or the religion or culture (if it claims to be a religious minority) of that minority. In all respects, it is just like any other educational institution - except that it is established and maintained by a person, family or group of persons belonging to a particular religious or linguistic minority. The particular minority community as such has no say either in its establishment or its running. They claim that while they are entitled to recognition affiliation and aid like any other educational institution, they shall not be subject to same amount of control or regulation. A certain amount of autonomy is claimed by these institutions. How are we to deal with such claims? On what criteria and on what principles? Unfortunately' neither Art. 30 nor any other Article in the Constitution - and for that matter, any provision in any legislative enactment - furnishes any guidelines in the matter. Hence, an exercise by judiciary has become necessary. Let us first notice the facts. W.P. No. 552 of 1986 : The petitioner in this writ petition is Andhra Kesari Educational Society. According to the averments in the writ affidavit, it was registered in 1982 under the Societies Registration Act, having Regd. No. 141182. It applies to the Government for permission to establish a College of Education. Finding that there was no response, the petitioner filed a writ petition in this Court and obtained a direction to the Government to consider its application in accordance with law. The Government considered the petitioner's application accordingly, and rejected it on the ground that the Colleges of Education already in existence in the State are sufficient to meet the need of trained teachers in the State and, therefore, there is no need to establish a new College of Education. This ground was held 'to be unsustainable in law and on facts by a Bench of this Court which directed the Government to consider the petitioner's application in accordance with the provisions of the A.P. Education Act. The Government again rejecte4 the petitioner's application on the same ground, whereupon another Bench of this Court directed then Government to grant permission to the petitioner to establish a College, of Education; (vide judgment. and order dt. 26-4-1985 in W.P. No. 670/85). Accordingly, the Government granted permission to the petitioner to establish a College of Education, subject to certain conditions specified in the order., (vide G.O.Ms. No. 289, Education, dt. 7-6-1985). The conditions were to be complied with within six months. Until this stage the petitioner never represented that it is a society composed exclusively of Christians, or that the College of Education proposed to be established by it is to be a minority education institutions. The conditions subject to which permission was granted by the Government are the very same conditions as were imposed by the Government in all such grants.
2. Having established an educational institution in pursuance of the Government's permission aforesaid, commencing from the academic year 1985-86, the petitioner came forward with the present writ petition for issuance of an appropriate writ, order or. direction restraining the respondents (ie., (1) State of Andhra Pradesh represented by the Secretary to Education Department., (2) Director of School Education, Government of Andhra Pradesh, and (3) Convenor, B.F-d. Common Entrance Test, 1985, Osmania University, Hyderabad), 'from regulating the admission into B.Ed. Course in the petitioner- society College, namely, Andhra Kesari College of Ongole, and grant such other writ or order as this Hon'ble Court may deem fit and proper ....... The basis upon which this relief is sought is that the petitioner-society is a 'Christian Minority institutions as disclosed by the objects and bye-laws. It is asserted that the College of Education established by the petitioner-society is a 'minority educational institution' entitled to the protection of Art. 30. Reliance is placed upon a certificate dt. 20-11-1985 issued by the A.P. Minorities Commission to the effect that Andhra Kesari College of Education established by the petitioner is a minority institution. It isy therefore, submitted that the Andhra Pradesh Educational institutions (Regulation of Admission and Prohibition of Capitation Fee) Act, 1983, and the Rules made thereunder do not apply to it, as provided specifically in S. 4 of the Act. An interim order was obtained on the said basis.
3. The respondents filed a counter-affidavit denying that the College of Education established by the petitioner is a 'minority educational institution'. It was denied that the petitioner-society has established to serve the educational interests of Christian minority. It was pointed out that at no stage, did the petitioner say that it is going to establish. or that it has established a minority educational institution and that such a contention was raised for the first time only when the question of compliance with the conditions of grant was insisted upon by the education authorities. The certificate issued by the A.P Minorities Commission, it was submitted of no relevance or significance as held by this Court. It was submitted that according to the conditions of grant, the petitioner was to observe, and abide by the Rules relating to admission of students, and the Rules relating selection of staff as may be enacted from time to time. It was submitted that this contention of being a minority educational institution is only a ruse for contain in illegitimate advantage, and should not be countenanced. It was specifically averred till the College of Education established by the petitioner was not for the benefit of the minority community. It was, therefor submitted that the petitioner is bound to abide by, and observe the Rules and procedure devised by the Government for admission in Colleges of Education.
4. In view of the disputed claims aforesaid, we called upon the learned counsel for the petitioner to place before us the Rules and bye-laws of the petitioner-Society. At this stage it was clarified - indeed conceded the learned counsel for the petitioner, Koka Raghva Rao that the petitioner - society, as it was originally registered, did not support to be a society composed exclusively of Christians, nor its objects spoke of, or referred to Christian religion Or its culture. It s submitted that on 10-8-1985 the bye-laws of 'he Society were amended and it is by virtue of these amendments that the Society became exclusively composed of Christians, and its bye-laws nor spoke of promoting tile educational needs of weaker sections belonging to the minority community of Christians. (it must be remembered that permission to the petitioner. It establish a College of Education was granted by the Government in G.O.Ms. No. 289 on 7-6-1985, i.e., more than two months prior to the amendment of its bye-laws.) It is also Combined by the petitioner that these amended bye- laws have been registered under the Societies Registration Act, though no proof thereof has been placed before, us. As a. matter of fact, this aspect was not at all clearly set out in the writ-affidavit. In the writ-affidavit it was claimed as if from the very beginning of its registration in 1982, the petitioner-society was composed exclusively of Christians, and that its objects at all points of time were promotion of Christian religion, culture, and its educational interests. That this was a misleading statement was also admitted before us. It is, however, claimed that because 'the bye-laws of the petitioner-Society were amended on 10-8-1985 and it became a Society exclusively composed of Christians whose mail,, objects now became the promotion of educational needs of Christians, the College of Education established by it is a 'minority educational institution'. It may be stated that the petitioner-Society was registered in 1982 with seven persons, namely, (1) Jangala Somayya (President); (2) Jalli Prasad (Secretary & Correspondent); (3) Jalli Padmakar (Treasurer); (4) Palle Mohan, (5) Jalli Padma Prasad, (6) Smt. P. Susheela, and (7) Smt. Patcha Jyoti as.members. In other words, the, General-Body of the Society consists of 7 members. The 3rd and 5th members are the sons of the second member, Jalli Prasad, who is also the Secretary & Correspondent. The aims and objects of the Society, as set out in clause 3 of the Memorandum of Association after its amendments run thus. -
'3. Aims and Objects :
(a) Maintenance and running of College of Education for Graduates and TTI for Under Graduate levels, namely,
(b)
(1) B.Ed, and (ii) TTI;
(2)
(b) to foster educational, social, cultural and literary activities of the minority community of Christians besides the general weaker Sections without any profit motive,
(c)
(d) to achieve these aims in peaceful ways'.
(e)
It is, stated by the learned counsel for the petitioner that the words underlined in clause (b) were introduced by the amendment made on 10-8-1985. Similar amendments were also made in the Rules and Regulations. It is on, these facts that we have to determine whether the educational institution run by the petitioner-Society can be called a 'minority educational institution' within the meaning of, and entitled to the protection of Art. 30 of the Constitution.
5. Articles 25 - 28 in Part-111 of the Constitution are placed under the sub-heading 'Right to freedom of religion'. Articles 29 and 30 arc put under the sub-heading 'Cultural and educational rights'.
A reading of Arts. 25 to 30 yields the following position :
(i) all persons in this country are equally entitled to freedom of conscience and have the right freely to profess, practice and propagate their religion, subject however to public order, morality, health and any law made by the State regulating or restricting any economic, financial political or other secular activity associated with religious practice. This right is further subject to the other provisions in Part-III, (Art. 25),
(ii)
(iii) every religious denomination or any section thereof in this country has the right to establish and maintain institutions for religious and charitable purposes, and to manage its own affairs in matters of religion, subject again to public order, morality, and health., (Art. 26);
(iv)
(v) any section of citizens residing in this country, having a distinct language, script or culture of its own, shall have the right to conserve the same; (Art. 29(1));
(vi)
(vii) no religious instruction shall be. provided in any educational institution 'wholly maintained out of State funds'., (Art. 28(1)),
(viii)
(ix) no educational institution recognized by the. State or receiving aid out of State funds shall compel any one to take part in any religious instruction, or to attend any religious worship that may be conducted in such institution; (Art. 28(3));
(x)
(xi) no educational institution maintained by the State, or receiving aid out of State funds, shall deny admission to any citizen on grounds only of religion, race, caste, language, or any of them; (Art. 29(2));
(xii)
(xiii) 'all minorities whether based on religion or language, shall have the right to establish and administer educational institutions of their choice'; (Art. 30(1)),
(xiv)
(xv) in granting aid to educational institutions, the State shall not discriminate against any educational institution, an the ground that it is 'under the management of a minority, whether based on religion or language; (Art. 30(2)).
(xvi)
6. Indubitably, the rights mentioned above must be read consistent with, and in conformity with other fundamental rights guaranteed by Part-III. Article 25 says so expressly. Even though the other Articles in this group do not expressly say so, it appears self-evident to us that occur as they do along with other fundamental rights in this Part, all of them must be given due play. While giving fu R content and meaning to each fundamental right, it should not be forgotten that all of them are parts of a pattern designed to secure to the citizens of this country, justice, liberty and equality in a Secular, Democratic Republic.
7. The historical background to Art. 30 has been set out by Khanna, J. in his opinion in St. Xaviers College's case, : [1975]1SCR173 . We do not think it necessary to reiterate the same. The object of Art. 30 wn to repeat the words of Khanna, J. in the same decision, 'not to have a kind of a privileged or pampered section of the population but to give to the minorities a sense of security and a feeling of confidence....'. The learned Judge observed:
'The great leaders of India since time immemorial had preached the doctrine of tolerance and catholicity of outlook. The noble ideas were enshrined in the Constitution. Special rights for minorities were designed not to create inequality. Their real effect was to bring about equality by ensuring the preservation of the minority institutions and by guaranteeing to the minorities autonomy in the matter of the administration of those institutions. The differential treatment for the minorities by giving them special rights is intended to bring about an equilibrium, so that the ideal of equality may not he reduced to a mere abstract idea but should become a living reality and result in true, genuine equality, an equality not merely in theory but also in fact .......'
8. The reason behind Art. 30 was stated by Ray, C.J. in the said decision in the following words : -
'The real reason embodied in Art. 30(1) of the Constitution is the conscience of the nation that the minority religious as well as linguistic, are not prohibited from establishing and administering educational institutions of their choice for the purpose of giving their children the best general education to make them complete men and women of the country. The minorities are given this protection under Art. 30 in order to ' preserve and strengthen the integrity and unity of the country ........ This is in the true spirit of liberty, equality and fraternity through the medium of education. ...........'
Mathew, J. put the same idea in these words:-
'The reason why the Constitution makers were at pains to grant religious minorities the fundamental right to establish and administer educational institutions of their choice is to give the parents in those communities an opportunity to educate their children in institutions having an atmosphere which is congenial to their religion. Whatever he one's own predilections those who think that man does not live by bread alone, but also by the word that comes from God cannot remain indifferent to the problem of religion in relation to and as part of education. As a matter of fact according to several religious minorities, the State maintains a system Of schools and colleges which is not completely satisfactory to them, inasmuch as no place is given to religion and- morality. The sheer omission of religion from curriculum is itself a pressure against religion. Since they realize that the teaching of religion and instruction in the secular branches cannot rightfully or successfully be separated one from the other, they are compelled to maintain their own system of schools and colleges for general education as well as for religious instruction....'
The learned Judge laid stress upon the parental right in the matter of educating their children, and their feeling that imparting of religious instruction in addition to secular education is necessary to maintain and preserve their religion and culture.
9. We shall first state how the problem arises. Clause (1) of Art. 30 says that all linguistic and religious minorities in the State have the right to establish and administer educational institutions of their choice. When it was argued that the words 'of their choice' take colour from the context and that the choice must be relatable to the character of the minority, the Supreme Court negatived the same. It said, there are no limitations upon the choice of the community, and that it is not necessary that the curriculum of the institution must be confined to the teaching of the religion or the language of the minority community. The Court said, an institution can impart general secular education, without containing any course or subject either in the religion or the language of the minority concerned., (see Kerala Educational Bill's case, AIR 1958 SC 956, and St. Xaviers College's case, : [1975]1SCR173 ).
10. Clause (l) of Art.30 confers the right upon 'minorities', not upon an individual member, or members thereof. It is a right given to the community as such; it is. not an individual right. It should, therefore, follow that an educational institution must be established and administered by the minorities as such. But, the question immediately arises: what does it mean in practice? When can a minority' be said to have established and administering an educational institution? Take for example the Christian religious minority in Andhra Pradesh. What does one mean when he says that this minority should establish and administer an educational institution? Should the entire community as such act in the matter, or is it sufficient if a section of it does? Whether it is open to -a single individual or a family, or a group of individuals (whether registered as a society or not) to establish an educational institution and say that it is an institution established by the Christian religious minority? What happens if the person, family, or a group of persons, incorporated or otherwise, runs the educational institution as a business proposition, i.e., for his or their own profit? Is it necessary that it should be a charitable institution or a non-profit-making institution? Is it necessary that the community must have a say in the matter of establishir4 and administering the institution, and if so, in what manner should its say be provided and proved? This very problem was considered by one of us (Jeevan Reddy, J..) in C. Samuel v. District Educational Officer, : AIR1982AP64 , where the problem was posed thus :
'Take the case of an educational institution established by an individual 'A' belonging to a minority community, in the State. The institution established by him imparts purely secular education as seems to he the position today generally. The institution is not meant to preserve and promote the religion or language of the minority. The person runs the institution for his own private benefit and promotion. The majority of the students do not belong to the minority community to which the person establishing it, belongs. What is the. conceivable connection, in such a case, between the institution and the minority community, -and what is the basis for filing it a minority institution? It is not a ,minority institution', but an institution belonging to an individual who happens to belong to a minority community. In this connection, it is also necessary to keep in mind the guarantee of equality contained in Arts. 14 and 15 of the Constitution of India. Art. IS- expressly states that the State shall not discriminate against any citizen on grounds only of religion, race, caste sex, place of birth, or any of them. If a person belonging to the majority community, 'B', establishes an identical institution as mentioned above, he cannot claim all the benefits which 'A' can claim. Would it not be a case where 'A' is being treated preferentially only because he happens to belong to a particular religion? It should also be remembered that a person residing in this State, whose mother-tongue is Tamil belongs to a linguistic minority in this State, while he would be a member of the majority community in Tamil Nadu, and vice versa. If a Tamil speaking person starts an institution in this State, it would be a minority institution, while if he starts it in Tamil Nadu, it would not be. It is not necessary to multiply the instances. These are the several anomalies and abuses which are likely to result, if the law does not insist upon a nexus between the institution and the particular minority to which it claims to belong ............'
For this reason it was held that before an institution can claim to be a minority institution 'it should be shown that it serves and/ or promotes the interests of the minqrity community in some manner, whether by promoting the religious tenets, philosophy, or culture of that community, or the language, culture or literature of that community, as the case may be, or otherwise.........' The words 'or otherwise' in the said observations were explained to mean that the institution, though importing general secular. education, must in some manner serve or promote the religious, economic or social interest of that community or a sizable section thereof in some manner. The same problem confronts this Bench again.
11. In State of Kerala v. Mother Provincial 0065/1970 : [1971]1SCR734 the Supreme Court while recognizing that a minority educational society can be founded even by a single philanthropic individual, qualified the same by saying that the institution so established must be for the benefit of the minority community. This is what Hidayatullah C. J. said, speaking for the Court (at P. 2082) :
'The first right is the initial right to establish institutions of the minority's choice.. Establishment here means the bringing into being of an institution and it must be by a minority community. It matters not if a single philanthropic individual with his own in 'eans founds the institution, or the community at large contributes the funds,. The position in law is the same and the intention in either case must be to found an institution for the benefit of a minority community, by a member of that community .........'
The learned Chief Justice proceeded to add further (at P. 2082) :
'The next part of the right relates to the administration of such institutions. Administration means 'management-of the affairs' of the institution. This management must be free of control so that the founders or their nominees can mould the institution as they think fit, and in accordance with their ideas of how the interest of the community in general and the institution in particular will be best served.', ....... '
(The control referred to is control by Government, and not by the minority).
12. The above dicta emphasize the connection between the institution and the community as such. The institution must be for the benefit of minority community; it must serve the interest of that community. Otherwise, there would be no basis, reason or rationale for calling it a 'minority institution'; it would be an institution established and maintained by a member or a few members of the mority community - and both are not the same. These observations, it may be reiterated, are made in the context of an educational institution imparting general secular education, and not those institutions which impart education in the language/medium of instruction of the linguistic , minority or impart religious instruction relevant to the particular religious minority. We are, therefore, of the opinion that where an educational institution imparts general secular education, it cannot claim the status of a minority educational institutes unless it serves the socioeconomic interests of that minority in some definite, positive manner. The community must have a say in the administration of the institution, though .it may be that it is founded by a single individual In other words, the institution must be for the benefit of the minority community, and must serve the interest of that community in some definite manner. Merely because it is established and/or administered by a persons group of persons, or by a society composed of the members of minority, is not sufficient to clothe the institution with the character of a minority educational institution.
13. Indeed, recently, the Supreme Court has expressed itself strongly on this aspect. O. Chinnappa Reddy, J., speaking for the Court, said in A.P.C.M.E. Society v. Govt. of Andhra Pradesh, : [1986]2SCR749 : -
'It was seriously contended before us that any minority, even a single individual belonging to a minority, could found a minority institution and had the right so to do under the Constitution And neither the Government nor the University could deny that society's right to establish a minority institution, at the very threshold as it were, howsoever they may impose regulatory measures in the interests of uniformity, efficiency and excellence of education. The fallacy of the argument in so far as the instant case is concerned lies in thinking that neither the Government nor the University has the right to go behind the claim that the institution is a minority institution and to investigate and satisfy itself whether the claim is well founded or ill founded. The Government, the University and ultimately the Court have the undoubted right to pierce the minority veil with due apologies to the Corporate Lawyers and discover whether there is lurking behind it no minority at all and in any case, no minority institution. The object of Art. 30(1) is not to allow bogies to be raised by pretenders but to give the minorities a sense of security and a feeling of confidence not merely by guaranteeing the right to profess practice and propagate religion to religious minorities and the right to conserve their language, script and culture to linguistic minorities, but also to enable all minorities, religious or linguistic, to establish and administer educational institutions of their choice. These institutions must be educational institutions of the minorities in truth and reality and not mere masked phantoms. They may be institutions intended to give the children of the minorities the best general and professional education, to make them complete men and women of the country and to enable them to go out into the world fully prepared and equipped. They may be institutions where special provision is made to the advantage and for the advancement of the minority children. They may be institutions where. the parents of the children of the minority community may expect that education in accordance with the basic tenets of their religion would be imparted by or under the guidance of teachers, learned and steeped in the faith. They may be institutions where the parents expect their children to gross in a pervasive atmosphere which is in harmony with their religion or conducive to the pursuit of it. What is important and what is imperative is that there must exist some real positive index to enable the institution to be identified as an educational institution of the. minorities. We have already said that in the present case apart from the half a dozen words as a Christian minorities institution occurring in one of the objects recited in the memorandum of association there is nothing whatever, !h the memorandum or the articles of association or in the actions of the society to indicate that the institution was intended to be a minority educational institution. As already found by us these half a dozen words were introduced merely to found a claim on Art. 30(1). They were a smoke-screen .......'.
14. We may add that taking any other view would directly attract the vice of Art. 15, as pointed out in Samuel's case : AIR1982AP64 (supra). Art. 30 was intended to protect, preserve and promote the interests of linguistic and religious minorities The idea was that in a democracy the majority can look after itself for the simple reason that it is a majority. ii is the minorities who need protection, and re1igious a-id linguistic minorities are of a permanent nature (in contradistinction to political minorities). Certain special rights were thus conferred upon the minorities as such to protect, preserve and promote their religious, cultural and linguistic rights and interests. The idea could never have been to discriminate between an individual and individual - or for that matter, a group of individuals and another group of individuals - on the basis of either religion, or language. Such discrimination is expressly prohibited by. Art. 15. Article 30 is ultimately a facet of equality, as pointed out repeatedly by the Supreme Court; (see paras 9 and 77 in St. Xaviets College's Case, : [1975]1SCR173 ). (Mathew, J., of course, says, in para 132 that the equal protection doctrine is to be deemed to be qualified by Art. 30, but his approach and understanding of this right (Art. 30) is itself rather restricted The learned Judge understands the said Article as directed towards propagation and preservation of religious tenets and culture of the minority. Moreover, he alone takes this view. Other Judges treat Art. 30 as a facet of equality). And it must be remembered that equality is the single most important goal of our Constitution. This brings us to the question whether minorities have an unrestricted right to establish educational institutions of their choice?
15: In this State, A. P. Education Act, 1982, regulates the establishment of educational institutions. Section 20 says that anyone seeking to establish an educational institution has to apply to the prescribed authority for such permission. On receiving such an application, the Authority shall examine the matter in the light of the need of the locality. This aspect assumes importance in the cases of professional colleges like Medical and Engineering Colleges, or even Colleges of Education - with respect to which category there has been a good amount of litigation in this Court in recent times. Suppose, the need is adjudged to be only for a College with 100 seats and, say, four minority institutions and four non-minority institutions (to use a convenient expression) apply for it, each proposing to have 100scats. Can it be said that minority institutions have an unrestricted right to establish or that they are not governed by S. 20? If this is so, does they apply only to non-minority institutions'? The answer can only be one, viz., that the right of establishing an institution given to minorities under Art. 30 is subject to the relevant statutory provisions. (Even here, problems may arise. Suppose, permission is given to a minority institution with 100 seats. If such institution says, 'I don't want your aid, I will admit students of only my community'. What should happen to members of other minorities and the majority community? Should each of them be permitted one college and if so, what happens to the criteria of 'need'?) So long as such a statute does not discriminate against minorities on the ground of language or religion, it has to be followed.
In short, minorities do not have an unrestricted or preferential right to establish educational institutions of their choice. They can do so only in accordance with the law for the time being in force. Even in the matter of maintaining and running an educational institution, the right given by, Art. 30 is not unqualified or unrestricted. It is held right from 1958 (Kerala Education Bill Case - supra) that right to administer does not include the right to mal-administer. All the regulatory provisions made by the State in the interest of efficiency, standards of education, courses of study, conditions of service of staff and teachers, have to be complied with. Only in the, matter of choosing the Managing/ Governing Body, selection of and disciplinary control over teachers and staff, admission of students, selection of medium of instruction, and such other matters as are recognized by Courts as coming within the right to administer, i& the institution free from State Regulation., (vide: In re: Kerala Education Bill, AIR 1958 SC 956; State of Kerala v. Mother Provincial, 0065/1970 : [1971]1SCR734 ., St. Xaviers College v. State of Gujarat, : [1975]1SCR173 , and D.A.V. College v. State of Punjab, : AIR1971SC1737 ). It is equally indisputable that in the matter of grant-in- aid, affiliation, and recognition, these institutions stand, on same par as now minority institutions in, all respects, and cannot claim any special treatment - - so long as the conditions imposed do not have the effect of impairing their right to establish and maintain educational institutions of their choice, as explained herein above, (see paras 94,95 and 98 in St. Xaviers College's case, Per Khanna, J.).
16. This brings us to yet another question dealt with by a Bench of this Court in W. P. No. 4146/83, dt. 7-12-1984 (reported in 1986 Lab IC 608). It is this: If an educational institution can be called 'State' as defined in Art. 12, applying the tests evolved by the Supreme Court in that behalf, it can no more claim to be a minority educational institution'. For, an institution cannot simultaneously be a 'State' as well as a minority educational institution; this would be a contradiction in terms. Being a 'State' it will be subject to all the fundamental rights in Part Ill, including Arts. 14, 15, 16 and 21. In such a situation, it cannot simultaneously claim a minority character. This is so even if such educational institution is established by a minority. '
By way of illustration, we may refer to the Full Bench decision of this Court in Hassar, Ali Khan v. Director of Higher Education, (1987) 1 APIJ (HC) 178, wherein it was held that Islamia College, Kurnool is a 'State' within the meaning of Art. 12, inasmuch as it is in receipt of substantial aid. from the State, is subject to a good amount of control by the State, and also because the function performed by it is public in nature. Once it is so held, it has to abide by Arts.'14, 15 and 16, among others. In such a situation, it would be a contradiction in terms to hold such an institution as a minority educational institution entitled to protection of Art. 30. Once it receives aid out of State funds, in whatever measure, the injunction contained in Art. 29(2) comes into operation to the extent of admission of students. It cannot refuse admission to any one on grounds of religion, race, caste, language, or any of them. We are in respectful agreement with the principle of the said Bench decision, where it was said 'in our opinions the rights which are guaranteed' by Art. 30, Cl. (1) of the Constitution, are not available to State instrumentalities. Such rights are available only to minority institutions which have not acquired the status and character of a State instrumentality. Those educational institutions which have acquired the character and status of State instrumentalities would not fall within the meaning of Art. 30(1) of the Constitution ....'.
17. We must record our agreement with another point decided in the said Bench decision. It is held therein that the certificate issued by the Andhra Pradesh State Minorities Commission showing that a particular institution is a minority institution is hardly conclusive or decisive on the question. It was observed that the Minorities Commission is, not a statutory body, that it was constituted by a mere executive order and that it is not endowed by any law with any legal capacity to confer the constitutional status of minority educational institution on an educational institutive may add that it is not clear on what verification, and by applying what principles, does not Minorities Commission determine a particular educational institution to be a minority educational institution? The question whether an educational institution is entitied to the benefit of Art. 30 is one to be decided by a Court or other authority empowered by law, applying the relevant tests; no one can unilaterally claim the said status, nor can the Minorities Commission confer the status upon any one.
18. We may now set out the principles flowing from the above discussion : -
(i) All linguistic and religious minorities in the State have the right to establish and administer educational institutions of their choice. Art. 30 confers the right upon the minority community as such, and not upon its individual members. It is not an individual right; it is the right of the community as such. Art. 30 is a facet of the right to equality, which is the single most important objective of our Constitution.
(ii) The right to establish an educational institution is not an unqualified right. It is subject to the relevant law in force in that behalf, in this State, A. P. Education Act, 1982. A minority can establish an educational institution only in accordance with the said Act and the Rules made thereunder, if any - unless of course the institution is meant exclusively for imparting instruction in religious tenets or teachings of the language of the minority concerned.
(iii) The right to administer an educational institution does not include the right to mal- administer. The State has the power to regulate and prescribe the conditions of service of teaching and non-teaching staff, the syllabus and standards of education, courses of study, the qualifications required of the staff and all other measures in the interest of efficiency and excellence in education Only in the matter of choosing the Managing/ Governing Body, selection of staff disciplinary control over teachers and staff selection of medium of instruction, and such other matters as are recognized by Courts as coming within the right to administer, is the institution free from State regulation.
(iv) An educational institution receiving aid out of State funds, in whatever measure, cannot deny admission to any citizen on grounds only of religion, race, caste, language, or any of them. -Similarly, it cannot compel any one to take part in any religious instruction, or to attend any religious worship what may be Conducted in such institution.
(v) An educational institution receiving cent-per-cent grant, i.e., wholly maintained out of State funds, cannot provide any religious instruction.
(vi) In the matter of affiliation and aid a minority educational institution stands on the same par as any other educational institution. It cannot claim any special right or privilege; it shall have to abide by the conditions of affiliation, or conditions of grant as the case may be, so long as such conditions do not impair the right to administer the institution.
(vii) An educational institution established by an individual or group of individuals - whether constituting a society or not belonging to a minority community cannot ipso facto be treated as a minority institution. The educational institution must serve and benefit the minority community, in some manner, either by promoting the language in the case of linguistic minority) or by teaching and promoting the religion and culture of the minority community (in the case of religious minority) or by serving the economic and educational needs of the community in some positive manner. The benefit to the community from such educational institution must be definite and real.
(viii) An educational institution which can be called a 'State' within the meaning of Art. 12 (on account of the financial aid it receives and the State control to which it is subject, or otherwise) cannot claim to be a minority educational institution.
(ix) The certificate issued by the A. P. State Minorities Commission is no evidence, much %s decisive on the question whether a particular educational institution is a minority educational institution entitled to the benefit 1 Art. 30 of the Constitution. As and when such question arises, it has to be decided by the Court or by other authority, if any, empowered by law to determine the same.
19. If we examine the case of the Petitioner in the light of the above principles, would be evident that it cannot claim to be ,minority educational institution by any stretch of imagination. When the society was formed and was given permission to establish College of Education, it was not, and it never claimed to be a minority educational institution. Only after obtaining the permission, and when the question of admission of students to the institution arose, did it claim the said status for the first time with a view to enable it to admit students of its own choice. The idea was to deprive the State of the right to allot students in accordance with the statutory rules governing such admissions, and students of its own choice and on its own terms, under the guise and cover of a minority educational restitution. Indeed, we are inclined to believe that the persons who have formed the said society are merely seeking to reap unfair advantage over other similar educational institutions by claiming fraudulently the status of a minority educational institution, and also to exploit the students, teachers, and the staff. lit is not shown how the Christian minority is owing benefited by the said institution. It is not even shown that any particular religious Instruction is being imparted ;.n this institution. It is also not stated that the institution is not in receipt of any Government grant.
20. The writ petition, accordingly, fails and is dismissed with costs. Advocate's fee: Rs.500/-
W.P. No. 553 of 1986:
21. The petitioner herein was accorded permission to start a College of Education at Kavali, on 14-9-1984 under 5. 20 of the A. P. Education Act, 1982. At that time, the petitioner did not claim that it was a minority educational institution. The terms under which the permission was granted are the same as are prescribed in the case of all other similar permissions. According to the conditions prescribed in the order, i.e., G.O. Ms. No. 436, the petitioner had to send a compliance report, within six months with respect to all the conditions prescribed therein. The petitioner failed to send such a report, whereupon a show-cause notice was issued to the petitioner, and permission was cancelled on 28-1-1986. A few days before the cancellation of permission, the present writ petition was filed on 23-1-1986, for issuance of an appropriate writ, order or direction restraining the respondents, i.e., the educational authorities and the Osmania University, from regulating admissions to the petitioner-College in accordance with the statutory Rules governing such admissions, on the ground that the petitioner-institution is a minority educational institution and therefore, the said Rules do not apply to it.
22. In the counter-affidavit it is denied that the petitioner-institution is a minority educational institution. It is stated that the college was started as a commercial venture and as a money spinner; it did not have the necessary staff, nor other paraphernalia required by a College of Education.
23. In the writ-affidavit, except asserting that the petitioner-institution is a minority educational institution, placing reliance upon the certificate issued by the A. P. State Minorities Commission, no other facts or material is brought to the notice of the Court in support of the said plea. In the circumstances, what all we have said with respect to the petitioner in W. P. No. 552/86, applies with equal force to this petitioner as well. For the same reasons, this writ petition also fails and is dismissed with costs. Advocate's fee: Rs. 500/-.
24. Petition dismissed.