SINDHI EDUCATION SOCIETY & ANR. v. THE CHIEF SECRETARY, GOVT. OF NCT OF DELHI & ORS.

A 143. This means that the right under Article 30(1) implies that any grant that is given by the State to the minority institution cannot have such conditions attached to it, which will in any way dilute or abridge the rights of the minority institution to establish and administer that institution. The B conditions that can normally be permitted to be imposed, on the edµcational institutions receiving the grant, must be related to the proper utilization of the grant and fulfilment of the objectives of the grant. Any such secular conditions so laid, such as a proper audit with regard to the utilization c of the funds and the manner in which the funds are to be utilized, will be applicable and would not dilute the minority status of the educational institutions. Such conditions would be valid if they are also imposed on other educational institutions receiving the grant.

D 144. It cannot be argued that no conditions can be imposed while giving aid to a minority institution. Whether it is an institution run by the majority or the minority, all conditions that have relevance to the proper utilization of the grant- in-aid by an educational institution can be imposed. All that E Article 30(2) states is that on the ground that an institution is under the management of a minority, whether based on religion or language, grant of aid to that educational institution cannot be discriminated against, if other educational institutions are entitled to receive aid. The F conditions for grant or non-grant of aid to educational institutions have to be uniformly applied, whether it is a majority-run institution or a minority-run institution. As in the case of a majority-run institution, the moment a minority institution obtains__ a grant of aid, Article 28 of the G Constitution comes into play. When an educational institution is maintained out of State funds, no religious instruction can be provided therein. Article 28(1) does not state that it applies only to educational institutions that are not established or maintained by religious or linguistic minorities. Furthermore, upon the receipt of aid, the

SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 131 ( GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.] . provisions of Article 28(3) would apply to all educational institutions whether run by the minorities or the non- minorities. Article 28(3) is the right of a person studying in a State-recognized institution or in an educational institution receiving aid from State funds, not to take part in any religious instruction, if imparted by such institution, without his/her consent (or his/her guardian's consent if such a person is a minor). Just as· Articles 28(1) and (3) become applicable the moment any educational institution takes aid, likewise, Article 29(2) would also be attracted and become applicable to an educational institution c maintained by the State or receiving aid out of State funds.

It was strenuously contended that the right to give admission is or:ie of the essential ingredients of the right to administer conferred on the religious or linguistic minority, and that this right should not be curtailed in any D manner. It is difficult to accept this contention. If Articles 28(1) and (3) apply to a minority institution that receives aid out of State funds, there is nothing in the language of Article 30 that would make the provisions of Article 29(2) inapplicable. Like Article 28(1) and Article 28(3), Article E 29(2) refers to "any educational institution maintained by the State or receiving aid out of State funds". A minority institution would fall within the ambit of Article 29(2) in the same manner in which Article28(1) and Article 28(3) would be applicable to an aided minority institution. It is true that· F one of the rights to administer an educational institution is to grant admission to the students. As long as an educational institution, whether belonging to the minority or the majority community, does not receive aid, it would, in our opinion, be its right and discretion to grant G admission to such students as it chooses or selects subject to what has been clarified before. Out of the various rights that the minority institution has in the administration of the institution, Article 29(2) curtails the · right to grant admission to a certain extent. By virtue of H

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A Article 29(2), no citizen can be denied admission by an aided minority institution on the grounds only of religion, race, caste, language or any of them. It is no doubt true that Article 29(2) does curtail one of the powers of the minority institution, but on receiving aid, some of the rights B that an unaided minority institution has, are also curtailed by Articles 28(1) and 28(3). A minority educational institution has a right to impart religious instruction - this right is taken away by Article 28(1 ), if that minority institution is maintained wholly out of State funds. Similarly c on receiving aid out of State funds or on being recognized by the State, the absolute right of a minority institution requiring a student to attend religious instruction is curtailed by Article 28(3). If the curtailment of the right to administer a minority institution on receiving aid or being wholly maintained out of State funds as provided by Article D 28 is valid, there is no reason why Article 29(2) should not be held to be applicable. There is nothing in the language of Articles 28(1) and (3), Article 29(2) and Article 30 to suggest that, on receiving aid, Articles 28(1) and (3) will apply, but Article 29(2) will not. Therefore, the contention that the institutions covered by Article 30 are outside the injunction of Article 29(2) cannot be accepted."

38Copy pinpoint38. The Court then proceeded to discuss the concept of equality and secularism and noticed that for a healthy family, it is important that each member is strong and healthy and all members have the same constitution, whether physical or mental. For harmonious growth and health, it is but natural for the parents to give more attention and food to the weaker child, so as to help him or her to become stronger. Noticing G recognition and preservation of different types of people with diverse languages and different beliefs is essential, the Court · answered the 11 questions framed therein . It is not necessary for us to refer to all the questions and answers, suffices, it would be to notice the relevant questions and answers given by the H majority in para 161 of the judgment.

SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 133 GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.]

"Q. 1. What is the meaning and content of the expression A "minorities" in Article 30 of the Constitution of India?

A. Linguistic and religious minorities are covered by the expression "minority" under Article 30 of the Constitution. Since reorganization of the States in India has been on B linguistic lines, therefore, for the purpose of determining the minority, the unit will be the State and not the whole of India. Thus, religious and linguistic minorities, who have been put on a par in Article 30, have to be considered Statewise. c xxx xxx·xxx xxx xxx Q. 4. Whether the admission of students to minority educational institution, whether aided or unaided, can be regulated by the State Government or by the university to which the institution is affiliated?

A. Admission of students to unaided minority educational institutions viz. schools and undergraduate colleges where the scope for merit-based selection is practically nil, cannot be regulated by the State or university concerned, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards.

The right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the State Government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions.

A minority institution does not cease to be so, the moment H

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A grant-in-aid is received by the institution. An aided minority educational institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and at the same time, would be required to admit a reasonable extent of non-minority students, so that the B rights under Article 30(1) are not substantially impaired and further the citizens' rights under Article 29(2) are not infringed. What would be a reasonable extent, would vary from the types of institution, the courses of education for which admission is being sought and other factors like c educational needs. The State Government concerned has to notify the percentage of the non-minority students to be · admitted in the light of the above observations. Observance of inter se merit amongst the applicants belonging to the minority group could be ensured. In the case of aided professional institutions, it can also be stipulated that D passing of the common entrance test held by the State agency is necessary to seek admission. As regards non- minority students who are eligible to seek admission for the remaining seats, admission should normally be on the basis of the common entrance test held by the State E agency followed by counselling wherever it exists.

Q. 5. (a) Whether the minorities' rights to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students?

A. A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not be tantamount to maladministration. Even an unaided minority institution ought not to ignore the merit of the students for admission, while exercising its right to admit students to the colleges H

SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 135 GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.] aforesaid, as in that event, the institution will fail to achieve A excellence.

Q. 5. (b) Whether the minority institutions' right of admission of students and to lay down procedure and method of admission, if any, would be affected in any way 8 by the receipt of State aid?

A. While giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe bye- rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the State qua non-minority students. The merit may be determined either through a common entrance test conducted by the university or the Government concerned- followed by counselling, or on the basis of an entrance test conducted by individual institutions - the method to be followed is for the university or the Government to decide. The authority may also devise other means)6 ensure that admission is granted to an aided professional institution on the basis of merit. In the case of such institutions, it will be pe,rmissible for the Government or the university to proViC:le that consideration should be shown to the weaker sections of the society.

Q. 5. (c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals . including their service conditions and· regulation of fees, etc. would interfere with the right of administration of minorities?

A. So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of H

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A control should be minimal and the conditions of recognition as well as the conditions of affiliation to a university or board have to be complied with, but in the matter of day- to-day management, like the appointment of staff, teaching and non-teaching, and administrative control over them, the B management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself. c For redressing the grievances of employees of aided and unaided institutions who are subjected to punishment or termination from service, a mechanism will have to be evolved, and in our opinion, appropriate tribunals could be constituted, and till then, such tribunals could be presided over by a judicial officer of the rank of District Judge.

The State or other controlling authorities, however, can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a principal of any educational institution.

Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State, without interfering with the overall administrative F . control of the management over the staff.

Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee.

G xxx xxx xxx xxx xxx Q. 9. Whether the decision of this Court in Unni Krishnan, J.P. v. State of A.P. (except where it holds that primary education is a fundamental right) and the scheme framed thereunder require reconsideration/ modification and if yes, H what?

SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 137 GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.] A. The scheme framed by this Court in Unni Krishnan A case and the direction to impose the same, except where it holds that primary education is a fundamental right, is unconstitutional. However, the principle that there should not be capitation fee or profiteering is correct. Reasonable surplus to meet cost of expansion and augmentation of facilities does not, however, amount to profiteering."

39Copy pinpoint39. The above paragraphs and the conclusions arrived at by the Court, certainly suggest that the Court did not specifically or impliedly over ruled or expressed any different view than what was taken by the Court in Ahmedabad St. Xavier's case {supra) as well as discussed the impact of Kera/a Education Bill, 1957 case {supra) with reference to Clauses 11 and 12, then the Court held that the view expressed in Kerala Education Bill, 1957 case (supra) was tentative. The view of the Court is that it is not an absolute right of the minority institution, but a D right where certain conditions could be applied but such conditions should not, in any way, destroy or completely diminish the status and constitutional direction available to that minority. E

40Copy pinpoint40. With the passage of time this Court had the occasion to deal with the clarificatory enunciation of law stated in T.M.A. Pai's case {supra) and dealt with different cases depending on the facts and circumstances of those cases. In the case of Brahmo Samaj Education Society {supra), a Bench of this F Court was concerned with the appointment of persons to the post of teachers including principal under the West Bengal College Teachers (Security of Services) Act, 1975, the West Bengal College Services Commission, 1978 and the Regulations framed thereunder. A particular procedure was G stated under these rules for making these appointments as per the regulations, National Eligibility Test (NET) is conducted by UGC {University Grants Commission) for determining teaching eligibility criteria of the candidate, which was added as an essential qualification for appointment as a teacher and, even H

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A further, restrictions were introduced by adding College Service Commission and appointments were sought to be made through this Commission. The Brahma Samaj Education Society challenged this procedure and being a religious minority claiming benefit under Articles 25, 26 and 30 (1) of the B Constitution, questioned the constitutional validity of these provisions. The Court considered the question whether the appointment of teachers in an aided institution by the College Service Commission by restricting the petitioner's right to appointment is a reasonable restriction. After following the law c stated in T.M.A. Pai's case (supra), the Court held as under: "6. The question now before us is to decide whether the appointment of teachers in an aided institution by the College Service Commission by restricting the petitioners' right to appointment is a reasonable restriction in the D interest of general public or not. The petitioners have a right to establish and administer educational institution. Merely because the petitioners are receiving aid, their autonomy of administration cannot be totally restricted and institutions cannot be treated as a government-owned one. E Of course the State can impose such conditions as are necessary for the proper maintenance of standards of education and to check maladministration .....

7. But that control cannot extend to the day-to-day administration of the institution. It is categorically stated in T. M.A. Pai (SCC at p. 551, para 72) that the State can regulate the method of selection and appointment of teachers after prescribing requisite qualification for the same. Independence for the selection of teachers among the qualified candidates is fundamental to the maintenance of the academic and administrative autonomy of an aided institution. The State can very well provide the basic qualification for teachers. Under the University Grants Commission Act, 1956, the University Grants Commission (UGC) had laid down qualifications to a teaching post in H

SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 139 GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.] a university by passing Regulations. As per these A Regulations UGC conducts National Eligibility Test (NET) for determining teaching eligibility of candidates. UGC has also authorised accredited States to conduct State-Level Eligibility Test (SLET). Only a person who has qualified NET or SLET will be eligible for appointment as a teacher in an aided institution. This is the required basic qualification for a teacher. The petttioners' right to administer includes the right to appoint teachers of their choice among the NET-ISLET- qualified candidates.

8. Argument on behalf of the State that the appointment through the College Service Commission is to maintain the equal standard of education all throughout the State of West Bengal, does not impress us. The equal standard of teachers are already maintained by NET/SLET. Similarly, receiving aid from State coffers can also not be treated as a justification for imposition of any restrictions that cannot be imposed otherwise."

In the above case, the Court did not rest with laying down the above law but even directed the State Government to take due notice of the declarations made in the T. M.A. Pai's case (supra) and to take appropriate steps in that regard.

41Copy pinpoint41. Thereafter, a Five-Judge Bench of this Court in Islamic Academy of Eduation v. State of Karnataka [(2003) 6 SCC 697], while dealing with the right of the minorities, aided as well as unaided institutions including professional educational institutions, in relation to the process of admission and fee structure, specified that the constitution of committees for admission and fee structure process was improper in relation to unaided minority institutions while certain other specifications were given with regard to the minority aided institutions but the Court specifically noted that non-minority educational institutions, in certain matters, cannot and do not stand on the. same footing as minority educational institutions which enjoys the protection of Article 30 and the preferential right to admit H

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A students of their own community. Further noticing that the whole object of conferring the right on minority is that they will be on equality with the majority, the Court further held as under :

"9 ........ Undoubtedly, at first blush it does appear that these paragraphs equate both types of educational B institutions. However, on a careful reading of these paragraphs it is evident that the essence of what has been laid down is that the minority educational institutions have a guarantee or assurance to establish and administer educational institutions of their choice. These paragraphs c merely provide that laws, rules and regulations cannot be such that they favour majority institutions over minority institutions. We do not read these paragraphs to mean that non-minority educational institutions would have the same rights as those conferred on minority educational institutions by Article 30 of the Constitution of India. Non- minority educational institutions do not have the protection of Article 30. Thus, in certain matters they cannot ancfdo not stand on a similar footing as minority educational institutions. Even though the principle behind Article 30 is to ensure that the minorities are protected and are given an equal treatment yet the special right given under Article 30 does give them certain advantages. Just to take a few examples, the Government may decide to nationalise education. In that case it may be enacted that private educational institutions will not be permitted. Non-minority educational institutions may become bound by such an enactment. However, the right given under Article 30 to minorities cannot be done away with and the minorities will still have a fundamental right to establish and administer educational institutions of their choice. Similarly, even though the Government may have a right to take over management of a non-minority educational institution, the management of a minority educational institution cannot be taken over because of the protection given under Article

H 30. Of course, we must not be understood·to mean that

SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 141 GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.) even in national interest a minority institute cannot be A closed down. Further, minority educational institutions have preferential right to admit students of their own community/ language. No such rights exist so far as non-minority educational institutions are concerned. B xxx xxx xxx xxx xxx 14....... Whilst discussing Article 30 under the heading "To what extent can the rights of aided private minority institutions to administer be regulated" reliance has been placed, in the majority judgment, on previous judgments in the cases of Kera/a Education Bill, 1957, Re, Sidhajbhai Sabhai v. State of Gujarat, Rev. Father W Proost V; State of Bihar, State of Kera/a v. Very Rev. Mother Provincial and Ahmedabad St. Xavier's College Society v. State of Gujarat. All these cases have recognised and upheld the rights of minorities under Article 30. These cases have held that in the guise of regulations, rights under Article 30 cannot be abrogated. It has been held, even in respect of aided minority institutions that they must have full autonomy in administration of that institution. It has been held that the right to administer includes the right to admit students of their own community/ language. Thus an unaided minority professional college cannot be in a worse position than an aided minority professional college. It is for this reason that paragraph 68 provides that a F different percentage can be fixed for unaided minority professional colleges. The expression "different percentage for minority professional institutions" carries a different meaning than the expression "certain percentage for unaided professional colleges". In fixing the percentage G for unaided minority professional colleges the State must keep in mind, apart from local needs, the interest/need of that community in the State. The need of that community, in the State, would be paramount vis-a-vis the local needs." H

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42Copy pinpoint42. In an attempt to clarify the matters beyond controversy, a Seven-Judge Bench of this Court in the case of P.A. lnamdar v. State of Maharashtra [(2005) 6 SCC 537), discussed the entire gamut of law in relation to minority educational institutions and noticed that the right conferred by Article 30 was more in B the nature of protection for minorities. It protects minority institutions from regulatory legislations framed under Article 19 (6), but still they were not immune from regulatory control. The Court was primarily concerned in that case with admission of the students to different institutions where it observed that even c within the scope and ambit of Article 30(1) there was a need for imposing reasonable restrictions even on the minority institutions, and such direction would not vitiate and hurt the minority status. There are two basic concepts - one relating to imposition of conditions with regard to the management of the 0 institutions and secondly the power of the State to step in where there are questions of national interest. The Court did approve the permitted operation of the committees with reference to rationality and reasonableness and the two significant matters were decided by the Court as follows :

E "103. To establish an educational institution is a fundamental right. Several educational institutions have come up. In Kerala Education Bill6 "minority educational institutions" came to be classified into three categories, namely, (i) those which do not seek either aid or F recognition from the State; (ii) those which want aid; and (iii) those which want only recognition but not aid. It was held that the first category protected by Article 30(1) can "exercise that right to their hearts' content" unhampered by restrictions. The second category is most significant. Most G of the educational institutions would fall in that cateQfry as no educational institution can, in modern times, afford to subsist and efficiently function without some State aid. So it is with the third category. An educational institution may survive without aid but would still stand in need of recognition because in the absence of recognition,

SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 143 GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.] education imparted therein may not really serve the purpose as for want of recognition the students passing out from such educational institutions may not be entitled to admission in other educational institutions for higher studies and may also not be eligible for securing jobs. Once an educational institution is granted aid or aspires for recognition, the State may grant aid or recognition accompanied by certain restrictions or conditions which must be followed as essential to the grant of such aid or recognition. This Court clarified in Kerala Education Bill that "the right to establish and administer educational c institutions" conferred by Article 30(1) does not include the right to maladminister, and that is very obvious. Merely because an educational institution belongs to a minority it cannot ask for aid or recognition though running in unhealthy surroundings, without any competent teachers and which does not maintain even a fair standard of teaching or which teaches matters subversive to the welfare of the scholars. Therefore, the State may prescribe reasonable regulations to ensure the excellence of the educational institutions to be granted aid or to be recognised. To wit, it is open to the State to lay down conditions for recognition such as, an institution must have a particular amount of funds or properties or number of students or standard of education and so on. The dividing line is that in the name of laying down conditions for aid or recognition the State cannot directly or indirectly defeat the very protection conferred by Article 30(1) on the minority to establish and administer educational institutions. Dealing with the third category of institutions, which seek only recognition but not aid, Their Lordships held that "the right to establish and administer educational institutions of · G their choice" must mean the right to establish real institutions which will effectively serve the needs of the community and scholars who resort to these educational institutions. The dividing line between how far the regulation would remain within the constitutional limits and H

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A when the regulations would cross the limits and be vulnerable is fine yet perceptible and has been demonstrated in several judicial pronouncements which can be cited as illustrations. They have been dealt with meticulous precision coupled with brevity by S.B. Sinha, B J. in his opinion in Islamic Academy. The considerations for granting recognition to a minority educational institution and casting accompanying regulations would be similar as applicable to a non-minority institution subject to two overriding considerations: (i) the recognition is not denied c solely on the ground of the educational institution being one belonging to minority, and (ii) the regulation is neither aimed at nor has the effect of depriving the institution of its minority status.

)()()( xxx xxx xxx xxx D

134. However, different considerations would apply for graduate and postgraduate level of education, as also for technical and professional educational institutions. Such education cannot be imparted by any institution unless recognised by or affiliated with any competent authority created by law, such as a university, Board, Central or State Government or the like. Excellence in education and maintenance of high standards at this level are a must. To fulfil these objectives, the State can and rather must, in national interest, step in. The education, knowledge and learning at this level possessed by individuals collectively constitutes national wealth."

The apparent analysis was that the emphasis has to be on the need for preserving its minority character so as to enjoy the privilege of protection under Article 30( 1).

43Copy pinpoint43. Still, in the case of Kanya Junior High School, Bal Vidya Mandir v. U.P. Basic Shiksha Parishad [(2006) 11 SCC 92], this Court observed that the law did not contemplate granting of any higher rights to the minority as opposed to

SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 145 GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.] majority and it only conferred additional protection. Referring A to P.A. lnamdar's case (supra), the Court declared that the object underlying Article 30(1) is to see the desire of minorities that their children should be brought up properly, efficiently and acquire eligibility for higher university education. It further noticed that under the provisions of law, the approval of District B Basic Education Officer was not necessary before terminating the services of a teacher, as the institution was recognized as a minority institution. Last of the judgment, which has some bearing on the subject in question, is on the principle reiterated by a Bench of this Court in the case of $ecy. Malankara Syrian c Catholic College (supra), where the Court again dealt with the aided minority educational institutions and terms and conditions of services of employees. The Court in para 12 of the judgment framed the following two questions :

"12. The rival contentions give rise to the following D questions:

(i) To what extent,. the State can regulate the right of the minorities to administer their educational institutions, when such institutions receive aid from the State? E (ii) Whether the right to choose a Principal is part of the right of minorities under Article 30(1) to establish and administer educational institutions of their choice. If so, would Section 57(3) of the Act violate Article 30(1) of the F Constitution of India?"

The Answer to question no. 1 was provided in para 21 while question no. 2 was answered in para Nos. 27 and 28 of the judgment which read as under : G "21. We. may also recapitulate the extent of regulation by the State, permissible in respect of employees of minority educational institutions receiving aid from the State, as clarified and crystallised in T.M.A. Pai. The State can prescribe: H

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A (i) the minimum qualifications, experience and other criteria bearing on merit, for making appointments,

(ii) the service conditions of employees without interfering with the overall administrative control by the management over the staff, B (iii) a mechanism for redressal of the grievances of the employees,

(iv) the conditions for the proper utilisation of the aid by c the educational institutions, without abridging or diluting the right to establish and administer educational institutions.

In other words, all laws made by the State to regulate the administration of educational institutions and grant of aid will apply to minority educational institutions also. But if any D such regulations in.terfere with the overall administrative control by the management over the staff, or abridges/ dilutes, in any other manner, the right to establish and administer educational institutions, such regulations, to that extent, will be inapplicable to minority institutions. E xxx xxx xxx xxx xxx

27. It is thus clear that the freedom to choose the person to be appointed as Principal has always been recognised as a vital facet of the right to administer the educational institution. This has not been, in any way, diluted or altered by T.M.A. Pai. Having regard to the key role played by the Principal in the management and administration of the educational institution, there can be no doubt that the right to choose the Principal is an important part of the right of administration and even if the institution is aided, there can be no interference with the said right. The fact that the post of the Principal/Headmaster is a·1so covered by State aid will make no difference.

H 28. The appellant contends that the protection extended

SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 147 GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.] by Article 30(1) cannot be used against a member of the A teaching staff who belongs to the same minority community. It is contended that a minority institution cannot ignore the rights of eligible lecturers belonging to the same community, senior to the person proposed to be selected, merely because the institution has the right to select a s Principal of its choice. But this contention ignores the position that the right of the minority to select a Principal of its choice is with reference to the assessment of the person's outlook and philosophy and ability to implement its objects. The management is entitled to appoint the c person, who according to them is most suited to head the institution, provided he possesses the qualifications prescribed for the posts. The career advancement prospects of the teaching staff, even those belonging to the same community, should have to yield to the right of the 0 management under Article 30(1) to establish and administer educational institutions."

The above answers to the questions formulated demonstrates that the Court has kept a clear line of distinction between laws made by the State to regulate the administration of educational institutions receiving grant-in-aid but if such regulations interfere with overall administrative control by the management over the staff or abridges or dilutes, in any other manner, the right to establish and administer educational institutions, in that event, to such extent, the regulations will be inapplicable to the minorities.

Discussion ·on constitutional provisions read in conjunction with the provisions of the Delhi School Education Act,1973 and the Rules framed thereunder with reference to the legal principles above enunciated

44Copy pinpoint44. Undoub•edly, the Preamble of our Constitution mandates 'to secure to all its citizens justice - social, economic and political'. The Com.:itution has been held to be a living and organic thing and not a mere law and it is expected to be H

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A construed broadly and liberally. Thus, these expressions must be given liberal construction s9 as to further the constitutional mandate. The social and economic justice would take within its ambit the progress and development of the entire nation without reference to caste, creed, colour or the section of the s society to which they belong.

45Copy pinpoint45. Article 14 of the Constitution commands equality before law or the equal protection of laws. The concept of equality is wide enough to include equality in advantages available to the public at large as a result of State action. The C Constitution has itself made out certain exceptions to the general rule of equality in terms of Articles 15 and 16. Article 15 (1) spells out a prohibitory intent against the State that it would not discriminate against any citizen on the ground only of religion, race, caste, sex, place of birth or any of them. In D other words, the State cannot deny the equality on the basis of the aforestated factors. Despite this mandate, Article 1.5(3) spells out an exception to Article 15(1) and 15(2) as well as to the concept of basic equality and empowers the State to make special provisions for women and children. Similarly, by Article E 15(4), which was introduced by 1st Constitutional Amendment of 1951, the State is further empowered to make any special provisions for advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. Article 15(5), which was introduced by 93rd F Constitutional Amendment of 2005, made out another exception to the general rule of equality and this sub-Article, while giving power to the State to enact special laws, also carves out an exception in regard to which this power cannot be exercised, i.e. minority educational institutions referred to G in clause (1) of Article 30. Article 15(5) reads as under:

"Nothing in this article or in sub-clause (g) of Clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the H

SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 149 GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.]

Scheduled Castes or the Scheduled Tribes insofar as such A special provisions relate to their admission to the educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in Clause (1) of Article 30." B

46Copy pinpoint46. Article 16 further guarantees to the citizens equality of opportunity in matters of public employment. Article 16(2) again prohibits discrimination in respect of any employment or office under the State on the ·ground of religion, race, caste, sex, C descent, place of birth, residence or any of them. These factors cannot render any citizen ineligible for appointment for public employment. Clauses (3) to (48) are the provisions which empowers the State to make any law in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or D Union Territory, any requirement as to a residence within that State or Union Territory, prior to such employment or appointment. It also empowers the State from making any provision for the reservation of appointments or posts in favour of any backward class which, in the opinion of the State, is not E adequately represented in the service under the State. The State is also vested with the power of reserving the vacancies in a particular year and make reservation in favour of Scheduled Castes and Scheduled Tribes, which are not adequately represented in service of the State, in matters of promotion with F c;onsequential seniority. Putting it simply, the State is entitled to make law and reservations in different fields for Scheduled Castes and Scheduled Tribes and the persons belonging to backward class in the services under the State, in accordance with law. G

47Copy pinpoint47. While dealing with the cultural and educational rights under the Constitution, the framers have devoted specific attention to the minorities in our country while enacting Articles 29 and 30. Article 29 grants complete protection to any section H

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A of the citizens residing in the territory of India having a distinct language, script or culture of its own and freedom to conserve the same. Besides granting this freedom, this Article also mandates that no citizen shall be denied admission to any educational institution maintained by the State or receiving aid B out of the State funds on the grounds of discrimination stated in Articles 15 and 16 of the Constitution. Article 30 gives certain rights to the minorities, i.e. all minorities whether religious or linguistic, have the right to establish and administer educational institutions of their choice. Article 30(2) has to be noticed with c some emphasis. It requires the State .not to discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language, while granting aid to the educational institution. The Article reads as under : D "30. Right of minorities to establish and administer educational institutions.-(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or E language."

48Copy pinpoint48. The principle of free primary education had been introduced as a constitutional right by this Court in Unni Krishnan, J.P. V. State of A.P. ((1993) 1 SCC 645]. The Court, F while dealing with the case of T. M.A. Pai (supra), not only reiterated the same with approval but made right to receive secondary education as a fundamental right. The dictum of this Court then led to 86th constitutional amendment by Amendment Act of 2002 wherein Article 21-A was introduced placing a G clear obligation on the State to provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may by law determine. The judgments of the Court and the constitutional law introduced a new dimension to the right of the children to receive education. To achieve this object, the State had to introduce various incentives and

SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 151 GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.]

policies to invite the private sector into the field of dispensation of education. This obviously, led to certain liberalization in the field of private sector dealing with the different levels of education. All the schools, which then came up, had to be recognized by the competent authority and they had to work under the regulatory measures declared by the State but in accordance with law. The private sector could be dissected into two sectors - aided and non-aided schools. The aided schools could further be divided into two sections - minority institutions receiving grant in aid and, non-minority institutions receiving grant-in-aid. c

49Copy pinpoint49. As is evident from the above narrated principles, the Government does not enjoy identical control over the management of the schools belonging to the minority and/or majority schools. In view of the above ground reality and amendment in law, Article 30(2) provides a definite protection to the minority institutions that they would not be discriminated against providing of grant-in-aid. This aspect is further dealt with some clarity in chapter VI relating to grant-in-aid under the provisions of the DSE Rules, 1973. In terms of Rule 60, every aided school will continue to get the aid subject to the provisions of the DSE Rules. Rule 64 of DSE Rules contemplates that aid to be given upon furnishing of suitable undertaking by the managing committee. The grant-in-aid, then, would be given only upon satisfaction· of the conditions stipulated in Rule 65. Second proviso to Rule 10 requires that wherever a linguistic minority school decides to impart education in a language other than the language of such linguistic minority, in that event the Administrator shall not be under any obligation to give grant-in-aid to such schools. In other words, a school run by linguistic minority would be entitled to receive grant-in-aid if it is imparting education in th.e language of the minority, of course, by satisfying other stated conditions. The right to receive grant thus has to be accepted as a legitimate right in contra-distinction or opposed to legal right to .get recognition including the case of a minority H

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A institution. This principle has been reiterated by this Court in catena of judgments including the judgments referred by us above. The logical impact of Article 30(2) read with the provisions of the DSE Act and the Rules framed thereunder is that, to receive grant-in-aid is a legitimate right of a school subject to satisfying the requirements of law. Article 30(2) thus, has been worded in a negative language not permitting the State to discriminate the minority institution in relation to the matters of grant-in-aid.

50Copy pinpoint50. Article 15(5) of the Constitution excludes the minority educational institutions from the power of the State to make any provision by law for the advancement of any socially and educationally backward classes of the citizens or for Scheduled Castes and Scheduled Tribes in relation to their admission to educational institutions including private educational institutions whether aided or unaided. This Article is capable of very wide interpretation and vests the State with power of wide magnitude to achieve the purpose stated in the Article. But, the framers of the Constitution have specifically excluded minority educational institutions from operation of this clause. Article 16 E which ensures equality of opportunity in matters of public employment again has been worded so as to prohibit discrimination and, at the same time, vests the State with power to make provisions, laws and reservations in relation to a particular class or classes of persons. It is of some significance to notice that power of the State to exercise such power is in relation to the 'service under the State'. This expression has been used in all the clauses of the Article which relates to providing of employment and framing of laws/reservations in those categories. Upon its true construction, this expression itself is capable of a wide construction and must be construed liberally and cannot be restricted to its narrow sense. The expression 'service under the State' would obviously include service directly under the State Government or its instrumentalities and/or even the sectors which can be termed as a State within the meaning of Article 12 of the Constitution.

SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 153 GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.] Once an organization or society falls outside the ambit of this circumference, in that event, it will be difficult for the Courts to hold that the State has a right to frame such laws or provisions or make reservations in the field of employment of those societies. B

51Copy pinpoint51. The interpretation of the word 'State' really does not require any deliberation as this aspect is no more res-integra and has been settled by the law stated in the case of Ajay Hasia v. Khalid Mujib Sehravardi [(1981) 1 SCC 722), where this Court spelt out the test that would be. applicable in determining whether a Corporation or a Government Company C or a· private body is an instrumentality or agency of the State. Primarily, there are different type of controls, which can be exercised by the State over any other authority, society, organization or private body to bring it within the ambit of the expression 'State' or 'other authority' appearing in Article 12 D of the Constitution. These are financial control, managerial and administrative control and functional control. To put it differently, what is the administrative control that the Government exercises upon such a body, whether functions of that body are governmental functions or closely related thereto, quantum of E State control, volume of financial assistances, character and structure of the body and cumulative effect of these factors etc. This has been followed consistently in the case of Zoroastrian Coop. Housing Society Ltd. v. District Registrar, Coop. Societies (Urban) [(2005) 5 sec 632] and in a very recent judgment in the case of State of U.P. v. Radhey Shyam Rai [(2009) 5 SCC 577], wherein this Court held that Uttar Pradesh Ganna Kishan Sansthan (Sansthan) is a State because these criteria were satisfied and even the State could take over the functions of the Sansthan. Unless all these three aspects are established or they are stated to be satisfied, it will not be permissible to term that society, organization or body as a 'State'.

52Copy pinpoint52. There is no doubt, that there may be minority institutions which are receiving grant-in-aid from the H

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A Government. But, merely receiving grant-in-aid per se would not make such school or institution 'State' within the meaning of Article 12 of the Constitution of India. Even this aspect we need not discuss in any great detail as the question stands settled by the judgment of this Court in the case of V.K. Sodhi (supra), B wherein this Court has dealt with the question whether State Council of Education, Research and Training is not State or other authority within the meaning of Article 12. The Court returned the finding that though the finances were being provided by the State, the State Government does not have c deep and pervasive control over the working of the Council and it was an independent society and thus, is not a State. The Court held as· under :

"11. The two elements, one, of a function of the State, namely, the coordinating of education and the other, of the D Council being dependant on the funding by the State, satisfied two of the tests indicated by the decisions of this Court. But, at the same time, from that alone it could not be assumed that SCERT is a State. It has to be noted that though finance is made available by the State, in the matter of administration of that finance, the Council is supreme. The administration is also completely with the Council. There is no governmental interference or control either financially, functionally or administratively, in the working of the Council. These were the aspects taken note of in Chander Mohan Khanna (supra) to come to the conclusion that NCERT is not a State or other authority within the meaning of Article 12 of the Constitution of India. No doubt, in Chander Mohan Khanna (supra), the Bench noted that the fact that education was a State function could not make any difference. This part of the reasoning in Chander Mohan Khanna (supra) case has been specifically disapproved by the majority in Pradeep Kumar Biswas (supra). The majority noted that the objects of forming Indian Institute of Chemical Biology was with the view of entrusting it with a function that is fundamental to

SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 155 GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.] the governance of the country and quoted with approval the following passage in Rajasthan SEB v. Mohan Lal [(1967) 3 S.C.R. 377):

'The State, as defined in Article 12, is thus comprehended to include bodies created for the purpose of promoting the educational and economic interests of the people. 8

The majority then stated:

"We are in respectful agreement with this statement of the law. The observations to the contrary in Chander Mohan c Khanna v. NCERT relied on by the learned Attorney- General in this context, do not represent the correct legal position."

xxx xxx xxx xxx xxx D

13. We also find substantial differences in the two set ups. Sabhajit Tewary (supra), after referring to the rules of the Council of Scientific and Industrial Research which was registered under the Societies Registration Act, concluded that it was not a State within the meaning of Article 12 of · E the Constitution. While overruling the said decision, the majority in Pradeep Kumar Biswas (supra) took the view that the dominant role played by the Government of India in the governing body and the ubiquitous control of the Government in the Council and the complete subjugation of the Governing Body to the will of the Central Government, the inability of the Council to lay down or change the terms and conditions of service of its employees and the inability to alter any bye-law without the approval of the Government of India and the owning by U{e Central Government of the assets and funds of the Council though normally owned by the society, all indicated that there was effective and pervasive control over the functioning of the Council and since it was also entrusted with a Governmental function, the justifiable conclusion was that it was a State within the H

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A meaning of Article 12 of the Constitution. The majority also noticed that on a winding up of that Council, the entire assets were to vest in the Central Government and that was also a relevant indication. Their Lordships in the majority also specifically overruled as a legal principle that B a Society registered under the Societies Registration Act or a company incorporated under the Companies Act, is by that reason alone excluded from the concept of State under Article 12 of the Constitution. In the case of SCERT, in addition to the operational autonomy of the Executive Committee, it could also amend its bye-laws subject to the c provisions of the Delhi Societies Registration Act though with the previous concurrence of the Government of Delhi and that the proceedings of the Council are to be made available by the Secretary for inspection of the Registrar of Societies as per the provisions of the Societies D Registration Act. The records and proceedings of the Council have also to be made available for inspection by the Registrar of Societies. In the case of dissolution of SCERT, the liabilities and assets are to be taken over at '· book value by the Government of Delhi which had to E appoint a liquidator for completing the dissolution of the Body. The creditors' loans and other liabilities of SCERT shaff have preference and bear a first charge on the assets of the Council at the time of dissolution. This is not an unconditional vesting of the assets on dissolution with the F Government. It is also provided that the provisions of the Societies Registration Act, 1860 had to be complied with in the matter of filing Hst of office-bearers every year with the Registrar and the carrying out of the amendments in accordance with the procedure laid down in the Act of G 1860 and the dissolution being in terms of Sections 13 and 14 of the Societies Registration Act, 1860 and making all the provisions of the Societies Registration Act applicable to the Society. These provisions, in our view, indicate that SCERT is subservient to the provisions of the Societies H Registration Act rather than to the State Government and

SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 157 GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.] that the intention was to keep SCERT as an independent A body and the role of the State Government cannot be compared to that of the Central Government in the case of Council of Scientific and Industrial Research.

14. As we understand it, even going by paragraph 40 of 8 the judgment in Pradeep Kumar Biswas (supra), which we have quoted above, we have to consider the cumulative effect of all the facts available in the case. So considered, we are inclined to hold that SCERT is hot a State or other authority within the meaning of Article 12 of the Constitution C of India. As we see it, the High Court has not independently discussed the relevant rules governing the functioning and administration of SCERT. It has proceeded on the basis that in the face of Pradeep Kumar Biswas (supra) decision, the decision in Chander Mohan Khenna (supra) must be taken to be overruled and no furttier D discussion of the question is necessary. But, in our view, . even going by Pradeep Kumar Biswas (supra). each case has to be considered with reference to the facts available for determining whether the body concerned is a State or other authority within the meaning of Article 12 of the E Constitution of India. So considered, we find that the Government does not have deep and pervasive control over the working of SCERT. It does not have financial control in the sense that once the finances are made available to it, the administration of those finances is left F to SCERT and there is no further governmental control. In this situation, we accept the submission on behalf of the appellants and hold that SCERT is not a State or other authority within the meaning of Article 12 of the Constitution of India. After all, the very formation of an independent · G society under. the Societies Registration Act would also suggest that the intention was not to make the body a mere appendage of the State. We reverse the finding of the High Court on this aspect." H

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53Copy pinpoint53. The principle above enunciated clearly shows that it is the cumulative effect of all the three essential features which would finally help in determining whether a society, body or an association is 'State' or not. We have referred to various provisions of the DSE Act, 1973 and particularly, the Rules B framed thereunder. The DSE Rules specifically contemplate that the State Government will not have any strict control over the management of these institutions. Even the members, who are nominated by the Director of Education, would only have a right of limited participation with no right of voting. Rule 59(b)(iv), c requires two other persons who are or have been teachers of any other school or college, to be nominated by the Advisory Board on the Managing Committee of a school. However, this clause shall not apply to a minority institution in terms of the proviso to the said Rule. The limited extent of control exercisable by the authorities is demonstrated in DSE Rules 0 44, 59 and 96(3A) & (3B). Every school is required, when it desires to establish a new school, to give intimation in writing to the Administrator or its office to establish such a school to specifically exempt the minorities' institutions from application E of this detailed provision. In addition to this, the management of a minority school cannot be taken over by the authorities in terms of Section 20 of the DSE Act as the statute itself prohibits the application of Section 20 to such school in terms of Section 21 of the Act. Besides these statutory provisions and the scheme under the DSE Act, various judgments of this Court F have also consistently taken the view that the State has no right of interference in the establishment, administration and management of a school run by linguistic minority except the power to regulate as specified.

54Copy pinpoint54. The right to establish and administer includes a right to appoint teachers. Thus, except providing grant-in-aid as per the DSE Rules and having no power to discriminate in terms of Article 30(2) of the Constitution, the Government has a very limited regulatory control over the minority institutions and no control whatsoever on the managing committee, internal

' SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 159 GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.] management of the school and, of course, has no power to take over such an institution. This Court has also expressed the view in some judgments that in respect of minority or even minority institutions, steps can be taken even for closure of such institutions in the national interest which of course may be a rare. exception. Once the State lacks basic power of jurisdiction to . B make special provisions and reservations in relation to minority institutions, which do not form part of service under the State, it will be difficult for the Court to hold that Rule 64(1 )(b) can be enforced against aided minority institution. There are still other aspects which can usefully be examined to analyze this issue C in a greater detail. In T.M.A. Pai's case (supra) the right to establish an institution is provided. The Court held that the right to. establish an institution is provided in Article 19(1 )(g) of the Constitution. Such right, however, is subject to reasonable restriction, which may be brought about in terms of clause (6) D thereof. Further, that minority, whether based on religion or language, however, has a fundamental right to establish and · administer educational institution of its own choice under Article 30(1).

55Copy pinpoint55. The right under clause (1) of Article 30 is not absolute but subject to reasonable restrictions which, inter alia, may be framed having regard to the public interest and national interest of the country. Regulation can also be framed to prevent mal- administration as well as for laying down standards of education, teaching, maintenance of discipline, public order, health, morality etc. It is also well settled that a minority institution does not cease to be so, the moment grant-in-aid is received by the institution. An aided minority education institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and, at the same time, would be required to admit a reasonable extent of non-minority students, to the extent, that the right in Article 30(1) is not substantially impaired and further, the citizen's right under Article 29 (2) is not infringed. H

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56Copy pinpoint56. A minority institution may have its own procedure and method of admission as well as the selection of students but it has to be a fair and transparent method. The State has the power to frame regulations which are reasonable and do not impinge upon the basic character of the minority institutions. B This Court, in some of the decisions, has taken the view that the width of the rights and limitations thereof of unaided institutions, whether run by a majority or by a minority, must conform to the maintenance of excellence and with a view to achieve the said goal indisputably, the regulations can be made by the State. It is also equally true that the right to administer does not amount to the right to mal-administer and the right is not free from regulations. The regulatory measures are necessary for ensuring orderly. efficient and sound administration. The regulatory measures can be laid down by the State in the administration of minority institutions. The right of the State is to be exercised primarily to prevent mal- administration and such regulations are permissible regulations. These regulations could relate to guidelines for the efficiency and excellence of educational standards, ensuring the security of the services of the teachers or other employees, framing rules and regulations governing the conditions of service of teachers and employees and their pay and allowances and prescribing course of study or syllabi of the nature of books etc. Some of the impermissible regulations are refusal to affiliation without sufficient reasons, such conditions as would completely destroy the autonomous status of the educational institution, by introduction of outside authority either directly or through its nominees in the Governing Body or the Managing Committee of minority institution to conduct its affairs etc. These have been illustrated by this Court in the Case of State of Kera/a v. Very G Rev. Mother Provincial [1970) 2 SCC 417, All Saints High School v. Govt. of A.P. [(1980) 2 SCC 478] and T.M.A. Pai's case (supra). Even in the Kera/a Education Bill, 1957 case (supra), referred for opinion by the President under Article 143(1) of the Constitution, this Court while answering question H No.2 emphasized upon the freedom and extent of protection

SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 161 GOVT. OF NCT OF DELHI (SWATANTER KUMAR, J.) available to the minority institutions. Referring to the fact that A Articles 29 and 30 are set out in Part-Ill of the Constitution, which guarantees fundamental rights, the text and margin notes of both the Articles show that their purpose is to confer those fundamental rights on certain sections of community, which constitute minority communities. The Court held that Article B 30(1) cannot be limited and should equally operate in favour of educational institution, whether established pre or post the commencement of the Constitution. The Bench repelled the contention that by admission of an outsider, the minority institution will loose its character as such, and held: c "To say that an institution which receives aid on account of its being a minority educational institution must not refuse to admit any member of any other community only on the grounds therein mentioned and then to say that as soon as such institution admits such an outsider it will cease to be a minority institution is tantamount to saying that minority institutions will not, as minority institutions, be entitled to any aid".

While admitting non-members, the institution does not shed its character or ceases to be a minority institution. The freedom of minority institutions was further explained by the Bench by saying that it is the choice of the minority institution, to establish such educational institutions as well serve both purposes that of conserving their religion, language or culture and also the purpose of giving a thorough good general education to their children. So, they could even impart education in their own language or in any other language, which choice essentially has to be left to the minority institution. The constitution itself uses the word 'choice' in Article 30(1), which indicates the extent of liberty and freedom, the framers of the Constitution intended to grant to the minority community. Thus, there arises no occasion for the Court to read restrictions into such freedom on the ground of policy. It may amount to intrusion into the very minority character and protection available to the· community in H

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A law. The right to frame regulations, therefore, is not itself an unregulated right. It has its own limitations and sphere within which such regulations would be framed and made operative.

57Copy pinpoint57. It is not necessary for us to examine the extent of power to make regulations, which can be enforced against linguistic 8 minority institutions, as we have already discussed the same in the earlier part of the judgment. No doubt, right conferred on minorities under Article 30 is only to ensure equality with the majority but, at the same time, what protection is available to them and what right is granted to them under Article 30 of the C Constitution cannot be diluted or impaired on the pretext of framing of regulations in exercise of its statutory powers by the State. The permissible regulations, as afore-indicated, can always be framed and where there is a mal-administration or even where a minority linguistic or religious school is being run against the public or national interest, appropriate steps can be taken by the authorities including closure but in accordance with law. The minimum qualifications, experience, other criteria for making appointments etc are the matters which will fall squarely within ~he power of the State to frame regulations but power to veto or command that a particular person or class of persons ought to be appointed to the school failing which the grant-in-aid will be withdrawn, will apparently be a subject which would be arbitrary and unenforceable. Even in T.M.A. Pai's case (supra), which view was reiterated by this Court in the case of Secy. Malankara Syrian Catholic College (supra), it was held that the conditions for proper utilization of the aid by the educational institution was a matter within the empowerment of the State to frame regulations but without abridging or diluting the right to establish and administer educational institutions. In G that case, while dealing with the appointment of a person as Principal, the Court clearly stated the dictum that the freedom to choose the person to be appointed as Principal has always been recognized as a vital facet to right to administer the educational institution. It being an important part of the administration and even if the institution is aided, there can be

SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 163 GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.] no interference with the said right. The power to frame regulations and control the management is subject to another restriction which was reiterated by the Court in P.A. /namdar's case (supra) stating that it is necessary that the objective of establishing the institution was not defeated. B

58Copy pinpoint58. At last, what is the purpose of granting protection or privilege to the minorities in terms of Article 29, and at the same time, applying negative language in Article 30(2) in relation to State action for releasing grant-in-aid, as well as the provisions of DSE Act, 1973 and the rules framed thereunder? C It is obvious that the constitutional intent is to bring the minorities at parity or equality with the majority as well as give them right to establish, administer and run minority educational institutions. With the primary object of Article 21A of the Constitution in mind, the State was expected to expand its policy as well as methodology for imparting education. DSE Act, D as we have already noticed, was enacted primarily for the purpose of better organization and development of school education in the Union Territory of Delhi and for matters connected therewith or incidental thereto. Thus, the very object and propose of this enactment was to improve the standard as well as management of school education. It will be too far fetched to read into this object that the law was intended to make inroads into character and privileges of the minority. Besides, in the given facts and circumstances of the case, the Court is also duty bound to advance the cause or the purpose for which the law is enacted. Different laws relating to these fields, thus, must be read harmoniously, construed purposively and implemented to further advancement of the objects, sought to be achieved by such collective implementation of law. While, you keep the rule of purposive interpretation in mind, you also further add such substantive or ancillary matters which would advance the purpose of the enactment still further.To sum up, we will term it as 'doctrine of purposive advancement'. The power to regulate, undisputedly, is not unlimited. It has more restriction than freedom particularly, in relation to the H

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A management of linguistic minority institutions. The rules, which were expected to be framed in terms of Section 28 of the DSE Act, were for the purpose of carrying out the provisions of the Act. Even, otherwise, it is a settled principle of law that Rules must fall within the ambit and scope of the principal legislation. B Section 21 is sufficiently indicative of the inbuilt restrictions that the framers of the law intended to impose upon the State while exercising its power in relation to a linguistic minority school.

59Copy pinpoint59. To appoint a teacher is part of the regular administration and management of the School. Of course, what should be the qualification or eligibility criteria for a teacher to be appointed can be defined and, in fact, has been defined by the Government of N.C.T. of Delhi and within that specified parameters, the right of the linguistic minority institution to .appoint a teacher cannot be interfered with. The paramount feature of the above laws was to bring efficiency and excellence in the field of school education and, therefore, it is expected of the minority institutions to select the best teacher to the faculty. To provide and enforce the any regulation, which will practically defeat this purpose would have to be avoided. A linguistic minority is entitled to conserve its language and culture by a constitutional mandate. Thus, it must select people who satisfy the prescribed criteria, qualification and eligibility and at the same time ensure better cultural and linguistic compatibility to the minority institution. At this stage, at the cost of repetition, we may again refer to the judgment of this Court in T. M.A. Pai's case (supra), where in para 123, the Court specifically noticed that while it was permissible for the State and its educational authorities to prescribe qualifications of a teacher, once the teachers possessing the requisite qualifications were selected by the minorities for their educational institutions, the State would have no right to veto the selection of the teachers. Further, the Court specifically noticed the view recorded by Khanna, J. in reference to Kera/a Education Bill, 1957 case (supra), and to clauses 11 and 12 of the Bill in particular, where the learned H Judge had declared that, it is the law declared by the Supreme

SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 165 GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.] Court in subsequently contested cases as opposed to the A Presidential reference, which would have a binding effect and said:

"123 ......... The words 'as at present advised' as well as the preceding sentence indicate the view expressed by this 8 Court in relation to Kera/a Education Bill, 1957, in -this respect was hesitant and tentative and not a final view in the matter."

What the Court had expressed in para 123 above, appears to have found favour with the Bench dealing with the case of C T.M.A. Pai (supra). In any case, nothing to the contrary was observed or held in the subsequent judgment by the larger Bench.

60Copy pinpoint60. The concept of equality stated under Article 30(2) has o to be read in conjunction with the protection under Article 29 and thus it must then be given effect to achieve excellence in the field of education. Providing of grant-in-aid, which travels from Article 30(2) to the provisions of the DSE Act and Chapter VI of the Rules framed thereunder, is again to be used for the same purpose, subject to regulations which themselves must fall within the permissible legislative competence. The purpose of grant-in-aid cannot be construed so as to destroy, impair or even dilute the very character of the linguistic minority institutions. All these powers must ultimately, stand in comity to the provisions of the Constitution, which is the paramount law. The Court will have to strike the balance between different facets relating to grant-in-aid, right to education being the fundamental right, protection available to religious or linguistic minorities under the Constitution and the primary object to improve and provide efficiency and excellence in school education. In our considered view, it will not be permissible to infringe the constitutional protection in exercise of State policy or by a subordinate legislation to frame such rules which will impinge upon the character or in any way substantially dilute the right of the minority to administer and manage affairs of its H

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A school. Even though in the case of Mohinder Kaur (supra), the Bench of this Court held that upon restoration of the minority character of the institution, the provisions of the Act and the rules framed thereunder would cease to apply to a minority institution. We still would not go that far and would preferably B follow the view expressed by larger Bench of this Court in T.M.A. Pai's case (supra) and even rely upon other subsequent judgments, which have taken the view that the State has the right to frame such regulations which will achieve the object of the Act. Even if it is assumed that there is no complete eclipse c of the DSE Act in the Rules in the case of minority institutions, still Rule 64(1)(b), if enforced, would adversely effect and dilute the right and protection available to the minority school under the Constitution.

61Copy pinpoint61. Now, we will revert back to the facts of the present case. D There is no dispute to the fact that the appellant-school is a linguistic minority institution and has been running as such for a considerable time. Admittedly, it was receiving grant-in-aid for all this period. Its minority status was duly accepted and declared by the judgment of the Delhi High Court in the case of this very institution and which has attained finality. In this very judgment, the Court also held that certain provisions of DSE Rules, 1973 would not apply to this minority school. Thereafter, vide letter dated 12th March, 1985, the Managing Committee was required to give an undertaking that it would make reservation in service for Scheduled Castes and Schedule Tribes, to which the school had replied relying upon the judgment of the Delhi High Court in its own case. However, vide letter dated 21st March, 1986, Secretary (Education), Government of N.C.T., Delhi had informed the appellants that the circular requiring Government aided schools to comply with the provisions relating to reservation was not applicable to the minority institutions. In face of the judgment of the Court, such a requirement was not carried out by the appellant-school and the controversy was put at rest vide letter dated 21st March, H 1986 and the institution continued to receive the grant-in-aid.

SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 167 GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.) However, in September, 1989, again, a letter ·was addressed to all the government aided schools including the appellant stating that it was a precondition for all agencies receiving grant-in-aid, not only to enforce the requirement of providing reservation in the posts but even not to make any regular appointments in the general catego!'Y till the vacancies in the reserved category were filled up. This was challenged before the High Court. At the very outset, we may notice that we entirely do not approve the view expressed by the learned Single Judge of the Delhi High Court in the case of Sumanjit Kaur (supra) insofar as it held that the regulation would be unconstitutional c since they are likely to interfere with the choice of the medium of instruction as well as minority character of the institution by compelling the appointments to the teaching faculty of the persons, who may be inimi.cal towards the minority community.

62Copy pinpoint62. We are of the considered view that the learned Single D Judge as well as the Division Bench erred in law in stating the above proposition as it is contra-Jegam. The Preamble of our Constitution requires the people of India to constitute into a 'Sovereign Socialist Secular Democratic Republic'. Secularism, therefore, is the essence of our democratic system. Secularism and brotherhoodness is a golclen thread that runs into the entire constitutional .scheme formulated by the framers of the ConstituUon. The view of the learned Single Judge and the Division Bench in the case of Sumanjit Kaur (supra), runs contra to the enunciated law. We are afraid that while deciding a constitutional matter in accordance with law, the Court would not be competent to raise a presumption of inimical attitude of and towards one community or the other. We do not approve the view of the High Court that a provision of an Act or a Circular issued thereunder could be declared as unconstitutional on such presumptuous ground. However, to the extent that it may interfere with the choice of medium of instructions as well as minority character of the institution to some extent is a finding recorded in accordance with law. The Division Bench while entertaining the appeal against the H

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A judgment of the learned Single Judge, had primarily concentrated on the point that the selection of the teacher was valid and not violative of the Rules and accepted the findings recorded by the learned Single Judge, resulting in grant of relief to the appellants. Further, in our considered view and for the B reasons afore-recorded, the judgment of the Division Bench in the present case while dismissing the writ petition filed by the appellants before that Court cannot be sustained in law. Further, in the judgment under appeal the Division Bench was right in not accepting the reason given by the learned Single Judge c founded on other persons being inimical towards minority. It was expected of the Division Bench to critically analyze other reasons given by the learned Single Judge in the case of Sumanjit Kaur (supra), which had been followed in the present case. We could have had the benefit of the independent view of the Division Bench as well. Reasoning is considered as the soul of the judgment. The Bench referred to the fact that the view in the Kerala Education Bill, 1957 case (supra) was tentative but still erred in ignoring paragraph 123 of the T.M.A. Pai's case (supra) as well as the other judgments referred by us, presumably, as they might not have been brought to the notice of the Bench. The discussion does not analyze the various principles enunciated in regard to the protection available to the linguistic minorities under Article 29 of the Constitution and the result of principle of equality introduced by Article 30(2) of the Constitution. For the detailed reasons recorded in this judgment, we are unable to persuade ourselves to accept the view of the Division Bench in the Judgment under appeal.

63Copy pinpoint63. 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 rigors 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

SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 169 GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.) 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 mal- administration. Just as regulatory measures are necessary for maintaining the educational character and content of the minority institutions, similarly, regulatory measures are c necessary for ensuring orderly, efficient and sound administration. Every linguistic minority may have its own socio, 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 0 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 school 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. G

64Copy pinpoint64. 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 organization and H

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A development of school education and matters incidental thereto. Such power must operate within its limitation while ensuring that it does not, in any way, dilute 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 B constitutional protections available to such communities. The minority society can hardly be compelled to perform acts or deeds which per se would tantamount to infringement of its right tomanage and control. In fact, it would tantamount to imposing impermissible restriction. A school which has been established c and granted status of a linguistic minority for years, it will not be proper to stop its grant-in-aid for the reason that it has failed to comply with a condition or restriction which is impermissible in law, particularly, when the teacher appointed or proposed to be appointed by such institution satisfy the laid down criteria 0 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.

65Copy pinpoint65. To frame policy is the domain of the Government. If, as a matter of policy, the Government has decided to implement the reservation policy for upliftment of the socially or otherwise backward classes, then essentially it must do so within the frame work of the Constitution and the laws. The concept of reservation has been provided, primarily, under Article 16 of the Constitution. Therefore, it would be the requirement of law that such policies are framed and enforced within the four comers of law and to achieve the laudable cause of upliftment of a particular section of the society. In regard to the ambit and scope of reservation, this Court in the case of M. Nagaraj v. Union of India [(2006) 8 SCC 212) held as under G "39. Reservation as a concept is very wide. Different people understand reservation to mean different things. One view of reservation as a generic concept is that reservation is an anti-poverty measure. There is a different H

SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 171 . GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.] view which says that reservation is merely providing a right A of access and that it is not a right to redressal. Similarly, affirmative action as a generic concept has a different connotation. Some say that reservation is not a part of affirmative action whereas others say that it is a part of affirmative action. B

40. Our Constitution has, however, incorporated the word "reservation" in Article 16(4) which word is not there in Article 15(4). Therefore, the word "reservation" as a subject of Article 16(4) is different from the word S"reservation·· as a general C concept.

41. Applying the above test, we have to consider the word "reservation" in the context of Article 16(4) and it is in that context that Article 335 of the Constitution which provides for relaxation of the standards of evaluation has to be seen. D We have to go by what the Constitution-framers intended originally and not by general concepts or principles. Therefore, schematic interpretation of the Co.nstitution has to be applied and this is the basis of the working test evolved by Chandrachud, J. in the Election case14 ." E

66Copy pinpoint66. Thus, the framework of reservation policy should be such, as to fit in within the constitutional scheme of our democracy. As and when the Government changes its policy decision, it is expected to give valid reasons and act in the larger interest of the entire community rather than a section F 1 thereof. In its wisdoml nd apparently in accordance with law Government had taken a policy decision and issued the circular dated 21st March, 198 .· exempting the minority institutions from complying with the requirements of the Rule 64(1)(b) of the DSE Rules. Despite this and judgment of the High Court there was G a change of mind by the State that resulted in issuance of the subsequent circular of September, 1989. From the record before us, no reasons have been recorded in support of the decision superseding the circular dated 21st March, 1986. It is a settled canon of administrative jurisprudence that state H

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A action, must be supported by some valid reasons and should be upon due application of mind. In the affidavits filed on behalf of the State, nothing in this regard could be pointed out and in fact, none was pointed out during the course of arguments. Absence of reasoning and apparent non-application of mind would give colour of arbitrariness to the state action. This aspect attains greater lucidity in light of the well accepted norm that minority institution cannot stand on the same footing as a non-minority institution.

67Copy pinpoint67. Besides that, State actions should be actio quaelibet it sua via and every discharge of its duties, functions and governance should also be within the constitutional framework. This principle equally applies to the Government while acting in the field of reservation as well. It would not be possible for the Courts to permit the State to impinge upon or violate directly or indirectly the constitutional rights and protections granted to various classes including the minorities. Thus, the State may not be well within its constitutional duty to compel the linguistic minority institution to accept a policy decision, enforcement of which will infringe their fundamental right and/or protection. On E the contrary, the minority can validly question such a decision of the State in law. The service in an aided linguistic minority school cannot be construed as 'a service under the State' even with the aid of Article 12 of the Constitution. Resultantly, we have no hesitation in coming to the conclusion that Rule 64(1)(b) F .cannot be enforced against the linguistic minority school. Having answered this question in favour of the appellant and against the State, we do not consider it necessary to go into the constitutional validity or otherwise of Rule 64(1 )(b) of the Rules, which question we leave open. G

68Copy pinpoint68. For the reasons afore-stated, we allow the appeal and hold that Rule 64(1)(b) and the circular of September, 1989, are not enforceable against the linguistic minority school in the NCT of Delhi. There shall be no order as to costs.

H R.P. Appeal allowed.