Holding

The Court held that sub‑section (4) of section 8 of the Delhi School Education Act, 1973 is applicable to minority‑run aided schools and, being a regulatory measure, does not offend Article 30(1).

Summary

The petitioners, a teacher and vice‑principal of a Delhi aided school run by a linguistic minority society, were suspended by the school management on charges of fund diversion without obtaining prior approval of the Director of Education as required by section 8(4) of the Delhi School Education Act, 1973. The petitioner challenged the suspension, arguing that the provision was ultra vires the Constitution and violated Article 30(1) which protects minority institutions from state interference. The Court examined whether the regulatory requirement of prior approval applied to minority‑run schools and whether it infringed the right to administer. Relying on Frank Anthony Public School Employees Association v. Union of India and earlier decisions such as All Saints High School and Lilly Kurian, the Court held that the provision is a permissible regulatory measure and does not encroach on Article 30(1). Consequently, the suspension order was deemed to have lapsed because the Director did not give approval within the prescribed fifteen‑day period. The writ petition was therefore dismissed.

Issues considered

Whether sub‑section (4) of section 8 of the Delhi School Education Act, 1973 applies to linguistic minority educational institutions protected under Article 30(1).
Whether the requirement of prior approval of the Director of Education for suspension of a teacher violates the constitutional right of minorities to administer their institutions.
Whether the suspension order issued without such approval is void and whether the provision is ultra vires the Constitution.

Legislation cited

Constitution of Indias. Article 14, s. Article 30, s. Article 32
Delhi School Education Act, 1973s. 8(4), s. 8(5)

Subjects

Article 30Minority educational institutionDelhi School Education ActSuspension of teacherPrior approvalRegulatory restrictionConstitutional validityDisciplinary procedure

Judgment

MRS. Y. THECLAMMA
A
v.
UNION OF INDIA & ORS.

APRIL 15, 1987

B [A.P. SEN AND K.N. SINGH, JJ.]

Delhi School Education Act, 1973: S. 8(4)-Minority educational
institution-Suspension of teacher-Order whether vitiated fol' want of
approval by Director of Education, Sub-section whether ultra vires the
Constitution.
c Constitution of India, Article 30: Minority educatimlul insti-
tution-Regulations can be made for ensuring fair procedure ilt maltets
of disciplinary action.
·'
Sub-section (4) of s. 8 of the Delhi School Education Act, 1973
D interdicts the management of a recognised private school from suspend-
ing lilly of its employees except with the prior approval of the Director
of Education. However, in cases of gross misconduct the first proviso to
that sub-section provides for suspension of the employee with imme-
diate effect, while the second proviso limits the period of such suspen-
sion to fifteen days, unless it has been communicated to the Director
E and approved of by him before the expiry of the said period.

The petitioner, a teacher in a recognised private school run by a
linguistic minority educational society, was placed under suspension hy
-
the management by its order dated April 23, 1986 on charges of diver-
sion of funds, pending departmental inquiry and the fact intimated to
F the Director of Education, without formally seeking his approval under
s. 8(4) of the Act. She filed a suit assailing the order as violative of
s. 8(4) of the Act and also an application for the grant of a temporary
injunction which was dismissed by the trial court following the decision
of the High Court in S.S. Jain Sabha v. Union of India, [ILR (1976) 2
Del. 61] taking the view that the educational institution having been
G established and administered by a linguistic minority, it was protected
under Art. 30(1) of the Constitution, and therefore, the provisions of
the Act and in particular, s. 8(4) were not applicable.

Her special leave petition having been dismissed as withdrawn by
this Court, she filed the present writ petition in this Court and there-
H after withdrew the suit.
974
Y. THECLAMMA v. U.0.1. 975

Relying upon the decision In Frank Anthony Public School Emp- A
loyees Association v. Union of India, [1986] 4 SCC 707 it was con-
tended for the petitioner that the impugned order of suspension being
without prior approval of the Director, as required under s. 8(4) of the
Act, was vitiated. For the respondents it was contended that the deci-
sion of the Court in Frank Anthony Public School's case being contrary
to the decision of the Constitution Bench in Lilly Kurian v. Sr. Lewina B
& Ors., [1979] 1 SCR 820 required reconsideration and thats. 8(4) of
the Act was violative of Article 30(1).

Disposing of the writ petition, the Court,

HELD: 1. The exercise of the power of management of the aided C
schools run by the linguistic minority educational institutions in Delhi ·
to suspend a teacher is subject to the requirement of prior approval of
the Direc~or of Education under sub-s. (4) of s. 8 of the Delhi School
l'l\IJCatiOn Act, 1973. (979EF]
I
;?. l While the right of the minorities, religious or linguistic, to D
establish and administer educational institutions of their choice cannot
be interfered with, restrictions by way of regulations for the purpose of
ensuring educational standards and maintaining excellence thereof can
validly be prescribed. (987B]

2.2 Sub-section (4) of s. 8 of the Act requiring the prior approval E
of the Director of Education for the suspension of a teacher was regula-
tory in character and did not, therefore, offend against the fundamental
right of the minorities under Art. 30(1) of the Constitution to adminis-
ter educational institutions established by them. [986H-987 A]

Frank Anthony Public School Employees' Association v. Union F
of India & Ors., (1986] 4 SCC 707; All Saints High School v. Govern-
ment of Andhra Pradesh, [1980] 2 SCC 478; In re. the Kera/a
Education Bill, 1957, (1959] SCR 995; Ahmedabad St. Xavier's College
Society v. State of Gujarat, (1975] 1 SCR '173 and Lilly Kurian v. Sr.
Lewina & Ors., (1979] 1SCR820; applied.
G
State of Kera/av. Very Rev. Mother Provincial, (197111 SCR 734
and D.A. V. College v. State of Punjab, [1971] Suppl. SCR 688, refer-
red to.

3.1 The decision in Frank Anthony Public School's case holding
that sub-s. (4) of s. 8 of the Act was applicable to the unaided minority H
[ 1987) 2 S.C.R.
0

976 SUPREME COURT REPORTS

A educational institutions proceeds upon the view taken by the majority In
All Saints High School's case that the right guaranteed to reli11ious and
linguistic minorities by Art. 30(1) to establish and to administer educa·
tional institutions of their choice was subject to the regulatory power of
the State, which in its turn was based on several decisions right from In
re. the Kera/a Education Bill. 1957 down to St. Xavier's case Including
B that in Lilly Kurian's case. It could not, therefore, be said to be In
conflict with the decision of the Constitution Bench in Lilly Kurian's
case and required reconsideration. [983BC·986FG I

3.2 The endeavour of the Court In all the above cases has been to
strike a balance between the constitutional obligation to prq~t wltat is
secured to the minorities under Art. 30(1) with the social ne~es~llf I@
c protect the members of the staff against arbitrariness and victimisation,
The provision contained in sub·s.(4) of s. 8 of the Act is designed to
afford some measure of protection to the teachers of SlJCh i11sljtutions
without interfering with the managements' right to take discipllnacy
action. [987E, DI
D
4.1 In a case like the present one where the management of an
educational Institution governed by sub-s. (4) of s. 8 of the Act charged
the petitioner with diversion of funds and communicated the Impugned
order of suspension pending departmental inquiry to the Director, a
duty was cast on him to come to a decision whether such immediate
E suspension was necessary by reason of the gross misconduct of the
petitioner as required by sub-s. (5) of s. 8 of the Act, [987F, 988A)

4.2 Since there was no response from the Director with!!! i!Je
period of 15 days, as envisaged by the second proviso to s. 8(4), thf -·(,,.,
impugned order of suspension had lapsed. However, the management
F could yet move the Director for his prior approval under sub•s, (4) of :...___
s. 8 of the Act, who would then deal with such an application, if made, In
accordance with the principle, laid down in .the Frank Anthony p,,b/ic
School's case. [988BC]
ORIGINAL JURISDiCTION: Writ Petition No. 1232 of 1986.

G (Under Article 32 of the Constitution oflndia\.

C .S. Vaidayanathan and S .R. Sethia for the Petitioner.

A. Sobba Rao for the Respondents.

H The Judgment of the Court was delivered by
Y. TIIECLAMMA v. U.0.1. [SEN, J.] 977

SEN, J. The short point involved in this petition under Art. 32 A
of the Constitution is whether linguistic minority educational institu-
tions like the Andhra Education Society are governed by sub-s. (4) of
s. 8 of the Delhi School Education Act, 1973. The petitioner Smt. Y.
Theclamma, Vice-Principal, Andhra Education Society Secondary
School, Prasad Nagar, New Delhi challenges the legality of an order
passed by the managing committee of the Andhra Education Society. B
New Delhi dated April 23, 1986 placing her under suspension pending
a departmental inquiry against her.

- -:r· The facts lie within a narrow compass. The Andlira Education
Society is a society formed under the Societies Registration Act, 1860
with a view to imparting education to the children belonging to the C
Andhra commµnity and others in Delhi. It runs as many as four
.. ~ sc\lools-a senior secondary school at Deen Dayal Upadhyaya Marg, a
secondary school at Prasad Nagar, a middle school at Janak Puri and
another at East of Kailash. The first three of these are recognised by
the Director of Education, Delhi Administration and are aided by the
Government to the extent of 95%. The petitioner is thus employed in a D
government aided school. By the impugned order dated April 23,
1986, the management instituted a departmental inquiry against the
petitioner on certain charges and placed her under suspension in exer-
. · ·'f cise of r. 115 gf the Delhi School Education Rules, 1973 pending the
inqi1iry. A copy of the impugned order of suspension was forwarded
on the same day to the Director of Education. On the next clay i.e. on E
April 24, 1986, the management addressed a letter to Deputy Director
of Education, District West, New Delhi formally intimating that the
-,). petitioner had been placed under suspension pending inquiry on a
charge of misconduct as specified for the reasons mentioned in the
statements of charges and of allegations forwarded. On that day, the
..J petitioner brought a suit for perpetual injunction against the manage- F
ment being Civil Suit No. 213/86 in the Court of the Subordinate
Judge, First Class, Delhi. She also made an application for grant of
temporary injunction under Order XXXIX, r. 1 of the Civil Procedure
Code, 1908 for restraining the managing committee from proceeding
with the departmental inquiry. The temporary injunction was sought
on the ground that the managing committee was not duly constituted and G
~ besides, the impugned order of suspension was violative of sub-s. (4)
of s. 8 of the Act. On the same day, the learned Subordinate Judge
passed an order for maintaining the status quo. However, the manage-
ment entered appearance and applied for vacating th!" in junction on
the ground that the petitioner had already been suspended on April
23, 1986. It also pleaded that the school was being established and H
978 SUPREME COURT REPORTS [1987] 2 S.C.R.

A administered by the Andhra Education Society which being a linguistic
minority educational institution was protected under Art. 30(1) of the -+.-
Constitution and therefore the provisions of the Act and in particular
of sub-s. (4) of s. 8 were not applicable. The learned Subordinate
Judge by his order dated August 20, 1986 following the decision of the
Delhi High Court in S.S. Jain Sabha (of Rawalpindi) Delhiv. Union of
B India & Ors., ILR (1976) 2 Del. 61 held that the Andhra Education
Society was protected under Art. 30(1) and was therefore not gover- ·
ned by sub-s. (4) of s. 8 of the Act and accordingly dismissed the )'-
application for grant of temporary injunction. Instead of moving the
High Court, the petitioner straightaway filed a Special Leave Petition ~. ~
under Art. 136 of the Constitution in this Court which was obviously
c not maintainable. On September 10, 1986 learned counsel for the
petitioner finding that it was difficult to support the petition for grant
of special leave, sought an adjournment to take further ip~tructions, )__ •
and the matter was accordingly adjourned to September 22, 1986. In
the meanwhile, the petitioner moved this petition under Art. 32 of the
Constitution and thereafter withdrew the suit. On the adjourned date,
D the learned counsel also withdrew the Special Leave Petition, The
Special Leave Petition was accordingly dismissed as withdrawn.

Ordinarily, the Court would have directed the petitioner to avail
of her alternative remedy under Art. 226 of the Constitution before
E the High Court but we were constrained to issue notice inasmuch as
the High Court had in the year 1979 by its judgment in Andhra Educa-
tion Society v. Union of India & Anr., followed its earlier decision in
S.S. Jain Sabha's case, (supra), and allowed a batch of Writ Petitions
filed by the Andhra Education Society and other linguistic minority
educational institutions holding that in view of the protection of Art.
F 30( 1) these linguistic minority educational institutions were not gover-
ned by ss. 3, 5, sub-s. (4) of s. 8, ss. 16 and 25 of the Act and the
relevant rules framed thereunder and therefore no prior approval of
- .
the Director of Education was necessary before passing an order of
suspension against a teacher pending a departmental inquiry. We were
also constrained to entertain the petition because a similar question
G was raised by the Frank Anthony Public School Employees' Associa-
tion by a petition under Art. 32 of the Constitution. Since then the
Court has in Frank Anthony Public School Employees' Association v.
Union of India & Ors., [ 1986] 4 SCC 707 struck downs. 12 of the Act as
being violative of Art. 14 of the Constitution insofar as it excludes the
H teachers and other employees of unaided minority schools from the
beneficial provisions of ss. 8 to 11 [except s. 8 (2)]i.e. except to the
Y. THECLAMMA v. U.0.1. (SEN, J.I 979

extent that it makes s. 8(2) inapplicable to unaided minority educa- A
tional institutions.

The Court following the long line of decisions starting from In re.
the Kera/a Education IJil/, 1957, [ 1959] SCR 995 down to All Sqints
High School v. Government of Andhra Pradesh, [!980] 2 SCC 478 he!d
that the provisions contained in Chapter IV of the Act (excepts. 8(2)) B
were regulatory measures and did not offend against Art. 30( I) of the
Constitution, enacted with the purpose of ensuring proper conditions
of service of the teachers ancl other employees of unaided minority
.-+ educational institutions and for securing a fair procedure in the matter
of disciplinary action as against them. These provisions, according to
the Court, were permissible restrictions and were intended and meant C
to prevent maladministration. The view proceeds upon the basis that
the right to administer cannot obviously include the right to mal-
administer. A regulation which is designed to prevent maladministra-
tion of an educational institution cannot be said to infringe Art. 30( !).
The Court accordingly granted a declaration to the effect that s. 12 of
the Act was void and unconstitutional except to the extent that it D
makes s. 8(2) inapplicable to unaided minority educational institu-
tions, and clirected the Union of India, Delhi Administration and its
officers to enforce the provisions of Chapter IV [excepts. 8(2)] against
the Frank Anthony J'uf>lic School, an unaided minority school. It has
furthe.r clirected the management of the school not to give effect to the
impugned orders of suspension passed against the members of the E
staff. Such being the law declared by the Court in Frank Anthony
Public School's case with regard to unaided minority educational
institutions, it stands to reason that the aided minority schools run by
the Andhra Eclucation Society and other linguistic minority educa-
tional institutions in Delhi will also !le governed by the provisions of
Chapter IV [excepts. 8(2)], that is to say, th~ exercise of the power of F
the mangement of such schopls to suspend a teacher would necessarily
be subject to the requirement of prior approval of the Director of
Education under sub-s. (4) of s. 8 of the Act.

In support of the petition Sri Vaidyapathan, learned counsel for
the petitioner naturally contends that the matter is concluded by the O
recent decision of this Court in Frank Anthony P!lblic school's case
and according to ·the view expressed by the Court in that case the
impugned order of suspension passed by the management being with-
out the prior approval of the Director as required by sub-s. (4) of s. 8
of the Act was vitiated. On the other hand Sri Subba Rao, learned
counsel appearing for respondents Nos. 3, 4 and 5 submits that the H
980 SUPREME COURT REPORTS (1987] 2 S.C.R.

A view expressed by this Court in the recent decision in Frank Anthony
Public School's case based upon the earlier decision in All Sairits High
School's case runs counter to the decision of the Constitution Bench in.
Lilly Kurian v. Sr. Lewina & Ors., [1979] I SCR 820 and therefore
requires reconsideration. Alternativ@ly, he ·contends that the Court
failed to appreciate that sub-s. (4) of s. 8 of the Act requiring 1he prior
B approval of the Director for the suspension of a teacher was a flagrant
encroachment upon the right of the !llinorities under Art. 30(1) of the
Constitution to administer educational i11stitutions established by
them. It is argued that if no prior approval of the Director is needed
under s. 8(2) for the dismissal, removal or reduction in rank of a
teacher as held by this Court in Frank Anthony Public School's case,
C there is no reason why the exercise of power of suspension being an
integral part of the power to take disciplinary action could not be made
subject to any such restriction as imposed by sub-s. (4) of s. 8 of t~e
Act.

In order to appreciate the riva.l contentions, it is necessary.to s.et
D out the relevant provisions. Sub-s. (2) of s.' 8 intercjicts that subject to
any rule that may be made, no employee of a recqgnised private school
shall be dismissed, removed o.r reduced in rank, nor shall his service be
otherwise terminated except with tpe pripr approval of the Director.
S. 8(3) confers upon such an employee the right of an appeal to the
Tribunal constituted under s. 11 against his dismissal, removal or re-
E duction in rank. Sub-s. (4) relates to the power of suspension and it is
in these terms:

"(4). Where the managing committee of a recognised pri-
vate school intends to suspend any of its employees, such
intention shall be cpmmunicated to the Director and no
F such suspension shall be made except ·with the prior
-· .
appfPyal of the Director:

Provided that the managing committee may suspend
an employee with immediate effect and without the prior
approval of the ·Director if it is satisfied that such
G immediate suspension is necessary by reason of the gross
misconduct, within the meaning of the .Code of Conduct
prescribed under section 9, of the employee:

Provided further that no such immediate suspension
shall remain in force for more than a period of fifteen days
H from the date of suspension unless it has been communi-
Y. THECLAMMA v. U.0.1. [SEN, J.) 981

cated to the Director and approved by him before the A
~xpjry of the said period."

Sub-s.(5) gf s. 8 prgvides tlj~t where inten!ion to suspend, or the
immediate suspension of an employee is communicated to the
Pirector, fle may, ifhe is satisfied that there are adequate and reason-
able grounds for such suspensjpn, accord his approval to such sus- B
pension.

In Frank Anthony Public School's case, Chinnappa Reddy, J.
speaking for himself and G .L. Oza, J. while repelling the contention
that sub-s. (4) of s. 8 of the Act was an encroachment upon the funda-
mental right of the minorities enshrined in Art. 30( 1) to administer the C
educat:onal institutions established by them inasmuch as it conferred a
J.. blanket power on the Director to grant or withhold his prior approval
w!J.i::r~ !he management intended to place an employee under suspen-
sjgq p@m!iPS a departmental inquiry, observed that the question was
direetly ~oV~re!I by !he wajority decision in All Saints High School's D
Ca§~ l!QP that, in hi.s view, the prpvision was eminently reasonable and
j11~t de~igned to afford some m~asure of protection to the employees,
without Interfering with the p!anagement's right to take disciplinary
action. He then stated:

"Section 8( 4) would be inapplicable to minority institutions E
if it had conferred blanket power on the Director to grant
or withhold prior approval in every case where a manage-
ment proposed to suspend an employee but we see that it is
not so. The management has the right to order immediate
suspension of an employee in case of gross misconduct but
in order to prevent an abuse of power by the management a F
-~i!f"gu11r<I i§ pp:jyig~d to th~ ~mployee that approval should
be cibt11ined 'within 15 days. The Director is also bound to
accord his approval if there are adequate and reasonable
grounds fqr ~l!Ch ~uspension, The provision appears to be
emipentfy reasonable and sound and the answer to the
question in fegarp to this p.rovisio!J is directly covere<! by G
the decision in Al! Saints High School, where Chandra-
cbud, CJ, and Kailasam, J. upheld Se~tion 3(3)(a) of the
Act impujlned tberein." (Emphasis supplied)

It is not necessary to go through all the cases relied upon by the H
982 SUPREME COURT REPORTS [1987] 2 S.C.R,

A Court in Frank Anthony Public School's case for the view taken that
the provisions of Chapter IV of the Act were of a regulatory nature
and therefore did not have the effect of abridging the fundamental
right guaranteed to the minorities under Art. 30(1). It is enough to say
that although there is no reference in the judgment to Lilly Kurian' s
case, the observations made by the Court with regard tq the applicabi-
B lity of sub-s.{4) of s. 8 of the Act which relates to the exercise of the
power of suspension by the management, fall in. line with the view
expressed by the majority in All Saints High School's case where such
power was held to be on consideration of all the decisions starting from
In re. the Kera/a Education Bill, 1957, permissible restriction being
regulatory in character_ Presumably the Court in Frank Anthony
C Public School's case felt that it was not necessary to refer to Lilly
Kurian's case as the extent of the regulatory power of the State had
been dealt with by the Court In re. the Kera/a Education Bill, 1957 and
reaffirmed in the subsequent decisions, including that in All Saints
High School's case. In Lilly Kurian's case, one of us {Sen, 1-) speaking
for a Constitution Bench had occasion to observe:
D
"Protection of the minorities is an article of faith in the
Constitution of India. The right to the administration of
institutions of minority's choice enshrined in Article 30(1)
means 'management of the affairs' of the institution. This
right is, however, subject to the regulatory power of the
E State. Article 30( 1) is not a charter for mat-administration;
however regulation, so that the right to administer may be
better exercised for the benefit of the institution, is permi-
ssible;''
(Emphasis supplied)
In that case, the question was whether the conferment of a right of
F appeal to an external authority like the Vice-Chancellor of the
University under Ordinance 33{ 4) framed by the Syndicate of the Uni-
versity of Kerala under s. 19(j) of the Kerala University Act, 1957
against any order passed by the management of a minority educational
institution in respect of penalties including that of suspension was an
abridgement of the right of administration conferred on the minorities
G under Art. 30(1). The question wa.s answered in the affirmative and it
was held that the conferral of the power of appeal to the Vice-
Chancellor under Ordinance 33{ 4) was not only a grave encroachment
on such institution's right to enforce and ensure discipline in its
administrative affairs but it was uncanalised and unguided in the sense
that no restrictions were placed on the exercise of the power. It was
H further said that in the absence of any guidelines it could not be held
Y. THECLAMMA v. U.0.1. [SEN, J.) 983

that the power entrusted to the Vice-Chancellor under Ordinance A
\
·-t 33(4) was merely a check on maladministration.

In Frank Anthony Public School's case, the Court held that sub-
ss. ( 1), (3) and (4) of s. 8, and ss. 9, JO and 11 of the Act do not encroach
upon the· right of administration conferred on the minorities under
Art. 30(1) to administer educational institutions of their choice, but B
that s. 8(2), in view of the .authorities referred to, must be held to
interfere with such right and therefore inapplicable to minority institu-
tions. It would therefore appear that the decision in Frank Anthony
Public School's case proceeds upon the view that the rightiuaranteed
- .f to religious and linguistic minorities by Art. 30(1) which is two-fold i.e.
to establish and to administer educational institutions of their choice, C
is subject to the regulatory power of the State. The Court has referred
to the three deci'sions in Ahmedabad St. Xavier's College Society v.
State of Gujarat, [1975] 1 SCR 173; State of Kerala v. Very Rev.
Mother Provincial, [1971] 1 SCR 734 and All Saints High School v.
Govt. of A.P. (supra) in coming to the conclusion thats. 12 of the Act
insofar as it made inapplicable the beneficent provisions of Chapter IV D
to unaided minority institution was discriminatory and offended
against Art. 14, i.e. except to the extent that it made s. 8(2) inappli-
cable to such institutions. The view taken in Frank Anthony Public
School's case is in consonance with the decision of the majority in All
Saints High School's case. In that case, the applicability of several
sections of the A.P. Recognised Private Educational Institutions E
(Control) Act, 1975 was questioned as being violative of Art. 30(1).
Chanqrachud, CJ. while delivering the majority judgment held after
referring to all the earlier decisions, that it must be regarded as well-
-~ settled especially after the 9-Judge Bench decision in St. Xavier's case
and the subsequent decision in Lilly Kurian that the State was compe-
tent to enact regulatory measures for the purpose of ensuring educa- F
tional standards and maintaining the excellence thereof and such regu-
lations which were permissible did not impinge upon the minorities'
fundamental right to administer educational institutions of their choice
under Art. 30(1). The reason for this conclusion can best be stated in
the words of Chandrachud, CJ.:
G
"These decisions show that while the right of the religious
and linguistic minorities to establish and administer educa-
tional institutions of their choice cannot be interfered with,
restrictions by way of regulations for the purpose of ensur-
ing educational standards and maintaining the excellence
thereof can 'be validly prescribed. For maintaining educa- H
984 SUPREME COURT REPORTS [1981] 2 S.C.R.

A tional standards of an institution, it is necessary to ensure
that it is competently staffed. Conditions of service which
prescribe minimum qualifications for the staff, their pay
scales, their entitlement to other benefits of service and the
laying down of safeguards which must be observed before
they are removed or dismissed from service or their
B services are terminated are all permissible measures of a
regulatory character."

Chandrachud, 0. and Fazal Ali, J. held that ss. 3(1) and 3(2) which
made the prior approval of the competeljlt authority a prerequisite for
the dismissal, removal or reduction in rank of a teacher, conferred on
c the competent authority an appellate power of great magnitude and
therefore ss. 3(1) and 3(2) read together were, in their opinion, uncon-
stitutional insofar as they were made applicable to minority institu-
tions inasmuch as they were found to interfere substantially with their
right to administer institutions of their choice. In coming to that con-
clusion, the learned Chief Justice relied upon the decisions in State of
D Kera/a v. Very Rev. Mother Provincial, (1971] 1 SCR 734; D.A. V.
Collegev. State of Punjab, [1971] Suppl. SCR 688 and Lilly Kurian and
accordingly agreed with Fazal Ali, J. that ss. 3(1) and 3(2) of the
impugned Act could not be applied to minority institutions since to do
so would offend against Art. 30(1). We may extract the relevant por-
tion of the judgment:
E
"Any doubt as to the width of the area in which Section
3( 1) operates and is intended to operate, is removed by the
provision contained in Section 3(2), by virtue of which the
' competent authority "shall" approve the proposal, "if it is
satisfied that there are adequate and reasonable grounds"
F for the proposal. This provision, under the guise of confer-
ring the power of approval, confers upon the competent
authority an appellate power of great magnitude. The com-
petent authority is made by that provision the sole judge of
the propriety of the proposed order since it is for that
authority to see whether there are reasonable grounds for
G the proposal. The authoritfis indeed made a judge both of
facts and law by the conferment upon it of a power to test
the validity of the proposal on the vastly subjectiv~ touch-
stone of adequacy and reasonableness. Section 3(2), in my
opinion, leaves no scope for reading down the provisions of
Section 3(1). The two sub-sections together confer upon
H the competent authority, in the absence of proper rules, a
Y. THECLAMMA v. U.0.1. (SEN, J.] 985

wide and untrammelled discretion to interfere with the A
proposed order, whenever, in its opinion, the order is
based on grounds which do not appear to it either adequate
or reasonable."

"The form in which Section 3(2) is couched is apt to mis-
lead by creating an impression that its real object is to cast B
an obligation on the competent authority to approve a
proposal under certain conditions. Though the section pro-
vides that the competent authority "shall" approve the
proposed order if it is satisfied that it is based on adequate
anq reasonable grounds, its plain and necessary implication
is that it shall not approve the proposal unless it is so C
satisfied. The conferment of such a power on ~n outside
authority, the exercise of which is made to depend on
' purely subjective considerations arising out of the twin
formula of adequacy and reasonableness, cannot but con-
stitute an infringement" of the right guaranteed by Article
30(1)." D

It is also necessary to mention that all the three Judges (Chandrachud,
CJ. Fazal Ali & Kailasam, JJ.) agreed that s. 4 of the Act which
provided for an appeal, ands. 5 which was consequential to s. 4, were
invalid as violative of Art. 30(1).
E
However, there was a difference of opinion as to the applicability
of ss. 3(3)(a), 3(3)(b), 6 and 7. We need only notice ss. 3(3)(a) and
3(3)(b) which pertained to the power of suspension. S. 3(3)(a) pro-
vided that no teacher employed in any private educational institution
shall be placed under suspension except when an inquiry into the
gross misconduct of such teacher is contemplated. S. 3(3)(b) provided F
that no such suspension shall remain in force for more than a period of
two months and if the inquiry was not completed within that period,
the teacher shall be deemed to be reinstated. Proviso thereto however
conferred power on the competent authority, for reasons to be re-
corded in writing, to extend the period for a further period not exceed-
ing two months. Chandrachud, CJ. found it difficult to agree with G
Fazal Ali, J. that these provisions were violative of Art. 30(1), thereby
agreeing with Kailasam, J. that they were indeed regulatory.
S. 3(3)(a), in his own words, contained bnt an elementary guarantee of
freedom from arbitrariness to the teachers. The provision was regula-
tory in character since it neither denied to the management the right to
proceed against an erring teacher nor indeed did it place an unreason- H
....
986 SUPREME COURT REPORTS [1987] 2 S.C.R.
'
A able restraint on its power ~o do so. It assumed the right of the
management to suspend a teacher but regulated that right by directing -~-I
that a teacher· should not be suspended for more than a period of two
months unless the inquiry was in respect of a charge of gross miscon-
duct. In dealing withs. 3(3)(a), the learned Chief Justice observed:

B "Fortunately, suspension of teachers is not the order of the
day, for which reason I do not think that these restraints
which bear a reasonable nexus with the attainment of edu- ~-
cational excellence can be considered to be violative of the
right given by Art. 30(1)."
-~ -
c He then stated:
"The limitation of the period of suspension initially to two
)-
months, which can in appropriate cases be extended by
another two months, partakes of the same character as the
provision contained ins. 3(3)(a). In the generality of cases,
D a domestic inquiry against a teacher ought to be c.ompleted
within a period of two months or say, within another two
months. A provision founded so patently on plain reason is
difficult to construe as an invasion of the right to administer
an institution, unless that right carried with it the right to y--""l.
maladminister. ''
E
Re accordingly agreed with Kailasam, J. that ss. 3(3)(a) and 3(3)(b)
which put restraints on the arbitrary power of suspension of teachers
-
were regulatory in character and did not o'ftend against the fundamen-
ta! right of minorities under Art. 30(1). ......~ •
F It would be seen that the decision of the Court in Frank Anthony ).._
Public School's case with regard to the applicability of sub-s. (4) of s. 8
of the Act to the unaided minority eilucational institutions is based on
the view taken by the majority in All Saints High School's case which,
on its turn, was based on several decisions right from In re. the Kera/a
Education Bill, 1957 down to St. Xavier, including that in Lilly Kurian.
G It is therefore difficult to sustain the argument of learned counsel for
the respondents that the decision in Frank Anthony Public School's
case holding that sub-s. (4) ofs. 8 of the Act was applicable to such
'r';
institutions was in conflict with the decision of the Constitution Bench
in Lilly Kurian's case and therefore required reconsideration. The
contention of learned counsel for the respondents that sub-s. (4) of s. 8 •.
H of the Act requiring the prior approval of the Director for the suspen-
/
Y. THECLAMMA v. U.0.1. (SEN, J.J 987

sion of a teacher was a flagrant encroachment upon the right of the A
minorities under Art. 30(1) of the Constitution to administer educa-
tional institutions established by them is answered in all the earlier
decisions of this Court right from In re. the Kera/a Education Bill, 1957
down to that in All Saints High School's case which have been referred
to by the Court in Frank Anthony Public School's case. These deci-
sions unequivocally lay down that while the right of the minorities, B
religious or linguistic, to establish and administer educational institu-
tions of their choice cannot be interfered with, restrictions by way of
regulations for the purpose of ensuring educational standards and
maintaining excellence thereof can validly be prescribed.

It cannot be doubted that although disciplinary control over the C
teachers of a minority educational institution is with the management,
regulations can be made for ensuring proper conditions of service for
the teachers and also for ensuring a fair procedure in the matter of
disciplinary action. As the Court laid down in Frank Anthony Public
School's case, the provision contained in sub-s. (4) of s. 8 of the Act is
designed to afford some measure of protection to the teachers of such 0
institutions without interfering with the managements' right to take
disciplinary action. Although the Court in that case had no occasion to
deal with the different ramifications arising out of sub-s. (4) of s. 8 of
the Act, it struck a note of caution that in a case where the management
charged the employee with gross misconduct, the Director is bound to

' accord his. approval to the suspension. It would be seen that the en- E
deavour of the Court in all the cases has been to strike a balance
between the constitutional obligation to protect what is secured to the
minorities under Art. 30(1) with the social necessity to protect the
members of the staff against arbitrariness and victimisation.

One should have thought that in a case like the present where the F
management charged the petitioner with diversion of funds and com-
municated the impugned order of suspension pending departmental
inquiry to the Director, there would be some response from him. The
management did not formally apply for his ryrior approval in terms of
sub-s. (4) of s. 8 of the Act in view of the declaration by the High Court
that it being a linguistic minority educational institution, it was pro- G
tected under Art. 30(1) and no prior approval of the Director was
required. Nevertheless, it took the precaution of communicating the
impugned order of suspension to the Director. Presumably, the
Directqr refrained frolll passing any order according or refusing
approval having regard to the judgment of the High Court. In view of
the recent decision in Frank Anthony Public School's case, it must be H
988 SUPREME COURT REPORTS

A held that the institution was governed by sub-s. (4) of s. 8 llf the Act
and therefore there was a duty cast on the Director to cotne lo a
decision whether such immediate suspension was necessary by reas<>n
of the gross misconduct of the petitioner as required by sub·~, (5) l}f s,
8. We refrain from expressing any opinion as to the seriousness of
otherwise of the charge as that is a matter to be enquired lnttl by a
B departmental proceeding. The faci however remains thnt there w·as tto
response from the Director within the period of 15 days as ehvisilg~tl
by the second proviso to s. 8(4). As a result of this, the impugftetl tlftl@f
of suspension has lapsed and it is so declared. Although the littptigried
order of suspension has lapsed, the management 11rny y~I rttoV~ th~
Director for his prior approval under sub·s, (4) of s. Hof th~ Delhi
c School Education Act, 1973, and the Diteettir shail deiil wiiH such
application, if made, in accordance with th~ prifteiples laid tloWfi irl
Frank Anthony Public School's case,
)
Subject to this observation, the writ petiti<lh fails and is dismis·
sed. There shall be no order as to costs. '
D
P.S.S. Petition dismissed.

I1