A.K. Padhi, J.
1. Praying for issuance of writ of mandamus directing the opposite parties not to interfere in the administration and management of the educational institution, namely, Technical High School, Sura da, the petitioner has approached this Court.
2. In the writ application it has been asserted that the Technical High School, Surada, situated in the district of Ganjam was established in the year 1954 by the Roman Diocesan Corporation, Cuttack, which is a minority community based on religion, for imparting education. The authorities had from time to time recognised the said school to have been established by the minority community. The institution in question is a recognised one and has received full grant-in-aid from Government up to 1986. Since the institution in question was established by a minority community based on religion with due approval of the authorities, it is clothed with protection of Article 30 of the Constitution.
3. The grievance of the petitioner is twofold-
(a) In the year 1986 the Inspector of Schools interfered with the management of the school and constituted a Managing Committee, term of which had already expired. The persons managing the affairs of the school submitted a proposal for reconsti-tution of the Managing Committee which was not approved by the Inspector of Schools. The Inspector of Schools in his turn wrote a letter to the Director, Secondary Education, Orissa requesting to approve the proposal for reconstitution of the Managing Committee submitted by him.
(b) On 1-7-1991 the Secretary of the Technical High School, Surada, appointed one Sri Ajit Kumar Behara as the Physical Education Teacher on the recommendation of the Selection Board which had conductedthe interview on 24-6-1991. Though Sri Ajit Kumar Behera was eligible to be appointed as such teacher, opposite party No. 3 has not yet approved his appointment. It is submitted that interference in administration amounts to infraction of the right guaranteed under the Constitution.
4. In support of the assertion that the educational institution was established by a minority community based on religion, several documents have been filed. Some of the documents relevant for the purpose of adjudication are referred. Annexure-1 is the certificate of incorporation of 'The Cuttack Roman Catholic Diocesan Corporation, Cuttack'. In the said memorandum of association it has been clarified that the expression 'Roman Catholic' means members of Catholic religion who acknowledge the Bishop of Rome to be the supreme religious head. Annexure-2 is the certificate of registration of societies so far as the Roman Catholic Diocesan, Berhampur is concerned. Anne-xure-9 is a letter dated 21-5-1955 wherein the then Inspector of Schools, Southern Circle had informed the Bishop of Cuttack that he had recommended the opening of a Technical High School by the Mission of Surada and recognised Class VIII in the session 1964-65. Annexure-10 is the sanction accorded on temporary basis to the opening of Class VIII during the session 1954-55. Annexure-6 is a letter dated 7-7-1983 from the Deputy Director, Secondary Education, Orissa to the Inspector of Schools, Ganjam wherein the Deputy Director had informed the Inspector that since the Technical High School, Surada was the Mission managed institution run and administered by them it did not come under the provisions of Orissa Education Act, 1969 and Orissa Education (Management of Private Schools) Rules, 1980 for which the Director of Secondary Education had no jurisdiction to pass any order regarding the retirement of the Headmaster of Technical High School, Surada. Letter of Inspector of Schools dated 27-7-1989 (Annexure-4) to the Director, Secondary Education, Bhubanes-war indicates that the school in question is being managed by the Christian Mission since 1954 as a minority community school. How-ever, Annexure-5 is a letter dated 12-8-1991from the Inspector of Schools, GanjamCircle, Berhampur (Ganjam) to the Directorof Secondary Education wherein the Inspector has indicated that by wrong interpretation, the Technical High School, Surada hasbeen treated as Mission managed HighSchool by the Minority Community and infact the Technical High School, Surada iscoming under 1346 Boys' High School directpayment scheme. It has also been written inthe said letter that the management hasresolved in the 5th meeting dated 14-3-1991for introduction of direct payment System forthe employees of Technical High' School,Surada.
Return has been filed on behalf of opposite party No. 3. The stand in the counter-affidavit is that the Technical High/School, Surada is an aided educational institution which imparts general education to all categories of students and the Managing Committee of the Technical High School, Surada had been constituted consisting members of all communities wherein the Bishop of Roman Catholic Church, Surada was only a Doner member. In paragraph 7, it has been averred that though the Roman Catholic Church, Surada has provided land and building for the Technical High School, Surada, the same comes under 1346 Boys' High School direct payment scheme instead of eight Mission managed High School as there is no such agreement between the Government and Cuttack Roman Catholic Diocesan Corporation nor is there any such order to the effect that the Technical High School, Surada is a Mission managed High School. In paragraph 8 it has been averred that since there is no agreement between the Managing Committee of the Technical High School, Surada and the Cuttack Roman Catholic Diocesan Corporation, there is no proof that the school was established by a Miniority Community and, therefore, the protection under Article 30 of the Constitution is not available to the management of the institution. In support of the stand, a document (Annexure-A/3) has been filed which indicates that payment of pension and gratuity to the employees of the aided minority community educational institutions was under consideration.
From all the facts narrated above and the documents filed, we have no hesitation to come to the conclusion that the Educational Institution, namely, Technical High School, Surada was established by a minority com-munity based on religion, i.e. by the Berham-pur Diocesan Catholic School Managing Committee from its inception and they were managing the affairs of the school till it was interfered with in the year 1986.
5. The moot questions which arise for consideration are--
(i) whether the educational institution in question is clothed with protection of Article 30 of the Constitution? And
(ii) to what extent the educational authorities can interfere with the administration of a school established by a minority community based on religion?
Since both the questions are interlinked, they are taken together.
Article 30(1) in terms gives all minorities based on language or religion two rights, namely, the right to establish and the right to administer educational institutions of their choice. Article 30(2) of the Constitution gives mandate to all States not to discriminate the granting aid to such educational institutions.
In consonance with and to carry out the mandate of Article 30 of the Constitution, Section 2 of the Orissa Education Act, 1969 has been enacted which reads as follows:-
'2. Act not to apply to certain institutions:-
Nothing contained in this Act shall apply to educational institutions of their choice established and administered by minorities having the right under Clause (i) of Article 30 of the Constitution.
Provided that the State Government may, by notification, apply or adopt to an educational institution established and administered by minorities, such of the provisions of the Act, so however, that the rights under Article 30 of the Constitution are not infringed.'
6. The contents of the fundamental rightsguaranteed by Article 30 of the Constitution has been the subject-matter of several decisions of both the Apex Court and other High Courts.
In an oft quoted decision in re the Kerala Education Bill, 1957, AIR 1958 SC 956 Chief Justice, S. R. Das explained the content of Article 30(1) of the Constitution as follows :-
'..........The key to the understanding of thetrue meaning and implication of the article under consideration are the words 'of their own choice'. It is said that the dominant word 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 Article 30(1) has, therefore, to be determined on a consideration of the matter from the points of view of the educational institutions themselves.'
Their Lordships further opined :-
'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 recognition or aid which will be violative of Article 30(1).......'
Their Lordships further observed (at page 983) :-
'........No educational institution can inactual practice be carried on without aid from the State and if they will not get it unless they surrender their rights they will, by compulsion of financial necessities, be compelled to give up their right under Article 30(1). The legislative powers conferred on the Legislatures of the States by Articles 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 provisions merely by employing indirect methods of achieving exactly the same result. Even the Legislature cannot do indirectly what it certainly cannot do directly.'
While dealing with the ambit and power of administration of a school in the above citedcase their Lordships have observed (at pp. 982 and 983) :-
'The right to administer cannot obviously include the right to mal-administer. The minority cannot surely ask for aid or recognition for an educational institution run by them in unhealthy surround ings, without any competent teachers possessing any semblance of qualification, and which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars. It stands to reason, then that the constitutional right to administer an educational institution of their choice does not necessarily militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institutions to be aided.'
In the case of S. Azeez Basha v. Union of India etc. (AIR 1968 SC662) the Constitution Bench has expressed the view that the words 'establish and administer' in Article 30(1) must be read conjunctively and so read it clearly shows that the minority will have the right to administer educational institutions of their choice provided they have established them, but not otherwise. Their Lordships further opined that the word 'establish' as expressed in Article 30(1) means 'to bring into existence' and so the right given by the Article to the minority is to bring into existence an educational institution, and if they do so, to administer it.
In the case of State of Kerala, etc, v. Very Rev. Mother Provincial, etc. (AIR 1970 SC 2079), while considering the scope and ambit of the right to administer guaranteed under Article 30(1) of the Constitution, their Lordships expressed the view that the management by a minority community must be free of control so that the founders or their nominees can mould the institutions as they think fit, and in accordance with their ideas of how the interests of the community in general and the institution in particular will be best served, but the same right is subject to an exception that the standards of education are not a part of management as such the minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions, or under the guise ofexclusive right of management, to decline to follow the general pattern.
In the case of the Ahmedabad St. Xaviors College Society etc. v. State of Gujarat (AIR 1974 SC 1389), a Bench consisting of nine-Judges were called upon to consider the scope and ambit of taking regulatory rneasures visa-vis the fundamental rights guaranteed under Constitution wherein it was held that minority has right to impart general education but there is no fundamental right of affiliation for minorities. Chief Justice Ray concurring with the view of Palekar, J. has expressed the view that there is no fundamental right of educational institutions of affiliation to a University. When a minority institution applies to the University to be affiliated and its choice to participate in the system of general education and courses, instructions prescribed by that University, it agrees to follow the uniform course of studies.
Dealing with the right of the management of a minority educational institution to exercise disciplinary control over the teachers, Mathew, J. speaking for himself and Chandrachud, J. observed as follows:- -
'.....Because Article 30(1) is couched in absolute terms, it does not follow that the right guaranteed is not subject to regulatory laws which would not amount to its abridgment. 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 regulation of that right would be an abridgment of the right.'
Their Lordships have further said :-
'.........The question to be asked andanswered is whether the particular measure is regulatory whether it crosses the zone of permissible regulation and inters the forbidden territory of restrictions or abridgment. So, even if any educational institution established by a religious or linguistic minority does not seek recognition, affiliation 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 hourlegislation, 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 home by others engaged in different forms of activity, the similar impact on the right seems clearly insufficient to constitute an abridgment. If an educational institution established by a religious minority 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 crite-rian 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 regulation 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 Constitution makers wanted to be absolute can be subjected to regulations which need only satisfy the nabulous 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 rights 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 conceived by the majority would be to subvert the very purpose for which the right was given.'
In the case of Frank Anthony Public School Employees' Association v. Union of India, AIR 1987 SC 311 : (1987 Lab IC 427), their Lordships expressed the opinion 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 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 quality and the contentment of the teachers. Conditions of service pertaining to minimum qualificationsof teachers, their salaries, allowances and other conditions of service is subject to the scrutiny by the authority. Fundamental rights guaranteed by Article 30(1) cannot be surrendered fully or partly and the authorities cannot make the grant-in-aid a condition precedent on the surrender of a part of the fundamental rights either in part or in full.
In the case of Managing Committee, Baptish Church Middle English School, Berhampur v. State of Orissa, 1988 (1) OLR 322 : (AIR 1988 Ori 250) the question arose before their Lordships as to whether the authorities of the Education Department could reconstitute the Managing Committee by exercising the powers under the rules, of an educational institution run by a minority community. After taking into consideration the various decisions, their Lordships have expressed the view that Fundamental Rights guaranteed under Article 30 cannot be waived or surrendered and the authorities of the Education Department cannot constitute the Managing Committee by exercising power under the Rules framed under the Education Act. Their Lordships further opined that there should not be any discrimination in sanctioning grant-in-aid to institutions established by the minority communities.
In the case of State of Tamil Nadu v. St. Joseph Teachers Training Institute ((1991) 3 SCC 87), their Lordships have opined as follows:-
'.........Under Article 30 of the Constitutionminorities based on religion or language have fundamental freedom to establish educational institutions of their own choice, but the State has right to prescribe regulatory provisions for ensuring educational excellence. Minority institutions which do not seek recognition are free to function according to their own choice, but if such an institution seeks recognition from the State, it has to comply with the prescribed conditions for granting recognition, and in that event the minority institution has to follow prescribed syllabus for examination, courses of study and other allied matters. These conditions are necessary to be followed to ensure efficiency and educational standard in minority institutions.......'
A Constitution Bench again considered the scope and ambit of Article 30(1) in St. Stephen's College v. University of Delhi (1992) 1 SCC 558) in which it has been observed :-
'The words 'establish' and 'administer' used in Article 30(1) are to be read conjunctively. The right claimed by a minority community to administer the educational institution depends upon the proof of establishment of the institution. The proof of establishment of the institution, is thus a condition precedent for claiming the right to administer the institution.................... There must existsome positive index to enable the educational institution to be identified with religious or linguistic minorities. Article 30(1) is a protective measure only for the benefit of religious and linguistic minorities and no ill-fit or camouflaged institution should get away with the constitutional protection........... The State orany instrumentality of the State cannot deprive the character of the institution, founded by a minority community by compulsory affiliation since Article 30(1) is a special right to minorities to establish educational institutions of their choice. The minority institution has a distinct identity and the right to administer with continuance of such identity cannot be denied by coercive action. Any such coercive action would be void being contrary to the constitutional guarantee. The right to administer is the right to conduct and manage the affairs of the institution. This right is exercised by a body of persons in whom the founders have faith and confidence. Such a management body of the institution cannot be displaced or reorganised if the right is to be recognised and maintained. Reasonable regulations however, are permissible but regulations should be of regulatory nature and not of abridgment of the right guaranteed under Article 30(1).'
Their Lordships further observed :
'So long as the basic right of minorities to manage educational institution is not taken away, the State is competent to make regulatory legislation. Regulations, however, shall not have the effect of depriving the right of minorities to educate their children in their own institution.............'
6A. After considering the aforesaid decisions and the scope and ambit of Article 30 of the Constitution, we conclude as follows :-
(1) Article 30(1) gives all minorities whether based on religion or language two rights, namely, the right to establish and the right to administer educational institutions of their own choice;
(2) Though the minority community has the right to establish and manage an educational institution of it's choice, it does not have the right of automatic recognition of affiliation;
(3) Fundamental right guaranteed under Article 30(1) cannot be surrendered or waived either fully or partly;
(4) The authorities cannot make the grant-in-aid conditional on the surrender of a part or whole of fundamental right guaranteed under Article 30(1);
(5) Interference with the management in the shape of either taking over the management or reconstitution of it in effect destroyed the right guaranteed under Article 30 of the Constitution;
(6) The standard of education is not a part of the management as such. The standard concerns the students and is governed by considerations of the advancement of the country and its people. Such regulatory measures which do not encroach directly upon management but advances the cause of the students can be imposed by the authorities;
(7) The right to administer does not include the right to maladminister. The State and its authorities have the right to regulate the standard of education and allied matters. Minority institutions cannot be permitted to fall below the standard of excellence expected of educational institutions. They cannot decline to follow the general pattern of education under the guise of exclusive right of management;
(8) The excellence of education provided by an institution would depend directly on the teaching staff and, therefore, the educationalauthorities have the right either to approve or disapprove the appointment of a teacher if they find him ineligible or unsuitable to impart jurisducation to the students.
7. After assessing the documents and the facts of this case, we have come to the conclusion that the school was established by a minority community based on religion. It follows that the founders of the school or their nominees have the right to administer and manage the school. The educational authorities have no right to encroach upon the fundamental right of the founders or their nominees by constituting or reconstituting the Managing Committee of the School.
The trust and faith of the minority com-munity in the manner of managing the school should be respected. The State has no authority to interfere with the Constitution of the Managing Committee, since it does not fall within the regulatory power of the State to be exercised in the interest of excellence of education. To permit the indulgence would destroy the enshrined rights guaranteed under the Constitution.
The appointment of the Physical Education Teacher, however is a different matter. It has nexus with efficiency and standard of education. It has to pass through the statutory measures. We are of the view that the management has the right to choose and appoint the teacher subject to the rider that the educational authorities have the right to approve, or to disapprove the appointment if they find him ineligible or unsuitable. But this power should be exercised fairly and reasonably.
8. In the result, we direct the educational authorities not to interfere with the management of the school. Regarding the appointment of the P.E.T. in question, the educational authorities are at liberty to scrutinise and find out whether he is eligible and suitable to be appointed as such keeping in view the educational excellence of the institution.
9. The writ application is allowed, but in the circumstances of the case, there shall be no order as to costs.