MomIn Education Society, Mohalla Sayadan, Nanded and Another Vs. Education Officer (Primary), Zilla Parishad, Nanded and Others - Court Judgment

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constitution of india - article 30 – maharashtra universities act, 1994 - section 79(4) - cases referred: 1. sindhi education society and another vs. chief secretary, government of nct of delhi and others (2010) 8 scc 49 (para 9). 2. t.m.a. pai foundation and others vs. state of karnataka and others, decided by the larger bench of the supreme court 2002 (8) scc 481 (para 12). 3. maharashtra association of minority educational institutions and another vs. state of maharashtra and others writ petition no.2545 of 1999 dtd 04.03.2011 (para 8). 4. ahmedabad st. xavier's college society and another vs. state of gujarat and another (1974) 1 scc 717 (para 9). comparative citation: 2012 (6) mah.l.j 5391. rule. rule made returnable forthwith and heard finally by consent of learned counsel for respective parties. 2. petitioner no.1 is a minority institution eligible for protection available to the minority institutions under article 30 of the constitution. petitioner no.2 is the school run by petitioner no. 1 institution. respondent nos.2 and 3 are employed as shikshan sevaks in petitioner no.2 school run by petitioner no.1 institution. 3. petitioner institution tendered proposal for grant of approval to the appointment of respondent nos.2 and 3. however, proposal tendered by petitioner institution was turned down by the education officer. 4. respondent nos.2 and 3 approached the grievance committee for entertaining complaints of shikshan sevaks, aurangabad, seeking relief of quashment of the order passed by the education officer on 14.03.2011, rejecting the proposal tendered by petitioner institution for grant of approval to the appointment of concerned respondents. the appeals tendered by the respondents were taken up for consideration by the grievance committee along with separate appeals presented by different employees. the appeals tendered by respondent nos.2 and 3 came to be rejected and further directions have been issued by the grievance committee to the education officer to send surplus teachers to the concerned institutions for being accommodated in employment. it is further directed that if the management fails to absorb the surplus teachers within specified period i.e. two months, the education officer shall have liberty to take appropriate steps against the management as per the provisions of law. it is further made clear in the order that in the event the education officer fails to send surplus teachers within a period of two months from the date of order, he shall grant his approval to the appointment of appellants, including respondent nos.2 and 3 herein, within a period of one month thereafter. 5. the petitioner institution is challenging the order passed by the grievance committee so far as it relates to appeal nos.14 and 15 of 2011 presented by respondent nos.2 and 3 herein. according to the petitioner, the grievance committee has exceeded its jurisdiction in issuing directions touching the administration and management of the minority institution. the direction issued by the grievance committee infringes the rights extended to the minority institutions to administer educational institutions. according to the petitioners, appointment of a teacher is a part of regular administration and management of the college and, therefore, minority institution has right to appoint a teacher selected and chosen by it and nobody can force it to appoint particular person as a teacher who is not selected by the management. 6. i have heard arguments advanced by learned counsel for the petitioners as well as shri panpatte, learned counsel appearing for respondent no.1 – zilla parishad. 7. shri panpatte, learned counsel for respondent no.1, supported the order passed by grievance committee and contended that the regulations touching administration and management of the institution are equally applicable to the petitioner institution. 8. reference is made to a judgment in the matter of maharashtra association of minority educational institutions and another vs. state of maharashtra and others (writ petition no.2545 of 1999, decided on 04.03.2011). said petition was presented by association of minority institutions raising challenge to the circulars issued by director of higher education dated 01.04.1999 and 07.05.1999. the director of higher education had issued a circular on 01.04.1999 and directed all the education institutions, including the minority institutions, who are receiving grantinaid from the state government, to obtain a certificate from the office of director of education (higher education), maharashtra state, before making appointment of any teacher, to the effect that, ‘any candidate in surplus cell is not available for appointment against the vacancy in the college; and only after securing such certificate, the institution shall follow the procedure for appointment of teachers. petitioners in the said petition also contended that provisions of section 79(4) of the maharashtra universities act, 1994, which imposes similar restrictions, do not apply to the minority institutions. by virtue of circular dated 07.05.1999, issued by director of higher education, it is directed that if a post of teacher is newly created on the establishment of the college in the year 1999 2000 or a post of teacher falling vacant in the year1999 2000 and in the advertisement it is shown reserved for a candidate belonging to backward class, then it shall be specifically mentioned that the post is so reserved, and if a person from that category i.e. backward class is available, such a candidate be appointed and in the event the management appoints a candidate from open category, it would not be entitled to receive grantinaid. according to the petitioners, both the circulars are not applicable to the minority institutions. 9. the division bench of this court, on consideration of judgments in the matter of the ahmedabad st. xaviers college society and another vs. state of gujarat and another, reported in (1974) 1 scc 717; as well as in the matter of sindhi education society and another vs. chief secretary, government of nct of delhi and others, reported in (2010) 8 scc 49, delivered by the apex court, ruled that the circulars are not enforceable against the minority institutions. it is also clarified that section 79(4) of the act also cannot be enforced against the minority institutions. 10. in the matter of the ahmedabad st. xaviers college society and another vs. state of gujarat and another, reported in (1974) 1 scc 717, petitioners therein challenged various provisions of gujarat universities act on the principal ground of violation of their fundamental right under article 30 of the constitution. while considering the scope and ambit of the rights of religious and linguistic minorities to establish and administer educational institutions of their choice, the supreme court has observed in paragraph 101 of the judgment that, “in the light of above principles, it can be stated that the law which interferes with the minorities choice of a governing body or management council would be violative of the right guaranteed by article 30(1).” in paragraph 103, it is observed thus: “103. another conclusion which follows from what has been discussed above is that a law which interferes with a minoritys choice of qualified teachers or its disciplinary control over teachers and other members of the staff of the institution is void as being violative of article 30(1). it is, of course, permissible for the state and its educational authorities to prescribe the qualifications of teachers, but once the teachers possessing the requisite qualifications are selected by the minorities for their educational institutions, the state would have no right to veto the selection of those teachers. the selection and appointment of teachers for an educational institution is one of the essential ingredients of the right to manage an educational institution and the minorities can plainly be not denied such right of selection and appointment without infringing article 30(1).” 11. in the matter of sindhi education society and another vs. chief secretary, government of nct of delhi and others, reported in (2010) 8 scc 49, the facts giving rise to the decision were that, the appellantsociety is established and registered under the provisions of societies registration act and is a minority institution established for preservation of sindhi language. the society was instructed by the deputy director of education to submit an undertaking in accordance with the provisions of rule 64 of the dse rules to the effect that they would make reservation in the appointment of teachers for the scheduled castes and schedules tribes. it was further instructed that future grantinaid shall be released only on giving undertaking, as directed. the society contended that since it is a minority institution, rule 64 of the dse rules cannot be made applicable to it since it is not in consonance with article 30(1) of the constitution. while deciding the issue, the supreme court has observed in paragraphs 111 to 114, thus: “111. a linguistic minority has constitution and character of its own. a provision of law or a circular, which would be enforced against the general class, may not be enforceable with the same rigours against the minority institution, particularly where it relates to establishment and management of the school. it has been held that founders of the minority institution have faith and confidence in their own committee or body consisting of the persons selected by them. thus, they could choose their managing committee as well as they have a right to choose its teachers. minority institutions have some kind of autonomy in their administration. this would entail the right to administer effectively and to manage and conduct the affairs of the institution. there is a fine distinction between a restriction on the right of administration and a regulation prescribing the manner of administration. what should be prevented is the maladministration. just as regulatory measures are necessary for maintaining the educational character and content of the minority institutions, similarly, regulatory measures are necessary for ensuring orderly, efficient and sound administration. 112. every linguistic minority may have its own social, economic and cultural limitations. it has a constitutional right to conserve such culture and language. thus, it would have a right to choose teachers, who possess the eligibility and qualifications, as provided, without really being impressed by the fact of their religion and community. its own limitations may not permit, for cultural, economic or other good reasons, to induct teachers from a particular class or community. the direction, as contemplated under rule 64(1)(b), could be enforced against the general or majority category of the government aided schools but, it may not be appropriate to enforce such condition against linguistic minority schools. this may amount to interference with their right of choice and, at the same time, may dilute their character of linguistic minority. it would be impermissible in law to bring such actions under the cover of equality which in fact, would diminish the very essence of their character or status. linguistic and cultural compatibility can be legitimately claimed as one of the desirable features of a linguistic minority in relation to selection of eligible and qualified teachers. 113. a linguistic minority institution is entitled to the protection and the right of equality enshrined in the provisions of the constitution. the power is vested in the state to frame regulations, with an object to ensure better organisation and development of school education and matters incidental thereto. such power must operate within its limitation while ensuring that it does not, in any way, dilutes or impairs the basic character of linguistic minority. its right to establish and administer has to be construed liberally to bring it in alignment with the constitutional protection available to such communities. 114. the minority society can hardly be compelled to perform acts or deeds which per se would tantamount to infringement of its right to manage and control. in fact, it would tantamount to imposing impermissible restriction. a school which has been established and granted status of a linguistic minority for years, it will not be proper to stop its grantinaid for the reason that it has failed to comply with a condition or restriction which is impermissible in law, particularly, when the teachers appointed or proposed to be appointed by such institution satisfy the laid down criteria and/or eligibility conditions. the minority has an inbuilt right to appoint persons, which in its opinion are better culturally and linguistically compatible to the institution.” observing thus, the supreme court proceeded to hold that rule 64(1)(b) and the circular are not enforceable against the linguistic minority school. 12. in t.m.a. pai foundation and others vs. state of karnataka and others, decided by the larger bench of the supreme court, reported in 2002 (8) scc 481, the issue in respect of rights and privileges of the minority institutions guaranteed under article 30(1) of the constitution, was also one of the issues for consideration. in paragraphs 138 and 139 of the judgment, the supreme court has observed thus: “138. as we look at it, article 30(1) is a sort of guarantee or assurance to the linguistic and religious minority institutions of their right to establish and administer educational institutions of their choice. secularism and equality being two of the basic features of the constitution, article 30(1) ensures protection to the linguistic and religious minorities, thereby preserving the secularism of the country. furthermore, the principles of equality must necessarily apply to the enjoyment of such rights. no law can be framed that will discriminate against such minorities with regard to the establishment and administration of educational institutions visavis other educational institutions. any law or rule or regulation that would put the educational institutions run by the minorities at a disadvantage when compared to the institutions run by the others will have to be struck down. at the same time, there also cannot be any reverse discrimination. it was observed in st. xaviers college case at scr p. 192 that: (scc p. 743 p.9) “the whole object of conferring the right on minorities under article 30 is to ensure that there will be equality between the majority and the minority. if the minorities do not have such special protection they will be denied equality.” in other words, the essence of article 30(1) is to ensure equal treatment between the majority and the minority institutions. no one type or category of institution should be disfavoured or, for that matter, receive more favourable treatment than another. laws of the land, including rules and regulations, must apply equally to the majority institutions as well as to the minority institutions. the minority institutions must be allowed to do what the nonminority institutions are permitted to do. 139 like any other private unaided institutions, similar unaided educational institutions administered by linguistic or religious authorities are assured maximum autonomy in relation thereto; e.g. method of recruitment of teachers, charging of fees and admission of students. they will have to comply with the conditions of recognition, which cannot be such as to whittle down the right under article 30.” 13. considering the law laid down by the supreme court in the judgments cited supra, it is clear that the law which interferes with a minoritys choice of qualified teachers or its disciplinary control over teachers and other members of the staff of the institution would be void as being violative of article 30(1). it is, of course, permissible for the state and its educational authorities to prescribe the qualifications of teachers, but once the teachers possessing the requisite qualifications are selected by the minorities for their educational institutions, the state would have no right to veto the selection of those teachers. the right to have the teaching conducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important facet of the right to administer an educational institution. so long as the persons chosen have the qualifications prescribed by the university, the choice must be left to the management and this is facet of fundamental right of the minorities to administer the educational institutions established by them. it is made clear by the judgments of the supreme court, cited above, that making appointment of teacher is a part of regular administration and management of the educational institution and, therefore, minority institutions have right to appoint a teacher selected and chosen by them and nobody can force upon the minority institutions to appoint a particular person, who is not selected by it as a teacher. 14. the directions issued by the grievance committee to the educational officer in respect of sending surplus teachers for being accommodated by the minority institution and mandate requiring the managements of minority institutions to absorb such teachers and prescription of consequences for breach of the directives issued by the grievance committee, is beyond the scope of interference in view of the rights guaranteed to the minority institutions under article 30(1) of the constitution. 15. in the result, the directions issued by the grievance committee touching the management of petitioner institution, so far as it relates to appeal nos.14 and 15 of 2011, shall stand quashed and set aside. the resultant consequence of quashment of the order passed by the grievance committee is that the education officer shall grant approval to the appointment of respondent nos.2 and 3, if otherwise they are eligible, taking into consideration their qualification and subject to their fulfilling criteria of educational qualification/age, etc. 16. rule is accordingly made absolute. there shall be no order as to costs.