Supreme Court of India
SINDHI EDUCATION SOCIETY & ANR.versusTHE CHIEF SECRETARY, GOVT. OF NCT OF DELHI & ORS.
- Citation
- 2010 INSC 392
- Decided
- 8 July 2010
- Disposal
- Appeal(s) allowed
- Bench
- B S CHAUHAN
Holding
Rule 64(1)(b) and the September 1989 circular are not enforceable against linguistic minority schools in the NCT of Delhi as they violate Articles 30(1) and 30(2) of the Constitution.
Summary
The Sindhi Education Society, a linguistic minority school in Delhi, challenged a 1989 government circular that made reservation for Scheduled Castes and Scheduled Tribes in teaching posts a condition for receiving grant‑in‑aid under Rule 64(1)(b) of the Delhi School Education Rules, 1973. The Society argued that, as a minority institution, it was exempt from such a requirement under the Delhi School Education Act and the Constitution. The Supreme Court examined whether the rule and circular violated Articles 30(1) and 30(2) of the Constitution and whether the school could be treated as a "service under the State" for reservation purposes. The Court held that the rule and circular could not be enforced against linguistic minority schools, as they would dilute the constitutional protection afforded to minority institutions. Consequently, the appeal was allowed and the High Court’s order striking down the circular was affirmed.
Issues considered
- Whether Rule 64(1)(b) of the Delhi School Education Rules and the September 1989 circular requiring reservation for SC/ST candidates are enforceable against a linguistic minority school receiving grant‑in‑aid.
- Whether enforcement of such a rule violates the constitutional rights under Articles 30(1) and 30(2) of the Constitution.
- Whether a grant‑in‑aid aided minority school constitutes a "service under the State" within the meaning of Article 12/16 for reservation purposes.
Legislation cited
- Constitution of Indias. Article 12, s. Article 14, s. Article 15, s. Article 15(5), s. Article 16, s. Article 21A, s. Article 28, s. Article 29, s. Article 30, s. Article 30(2)
- Delhi School Education Act, 1973s. 20, s. 21, s. 28(2), s. 2(o)
- Societies Registration Act, 1860
Subjects
minority educationlinguistic minoritygrant-in-aidreservationArticle 30Delhi School Education RulesRule 64SC/ST reservationconstitutional lawequalityadministrative lawpurposive interpretation
Judgment
[2010) 8 S.C.R. 81
SINDHI EDUCATION SOCIETY & ANR. A
v.
THE CHIEF SECRETARY, GOVT. OF NCT OF DELHI &
ORS.
(Civil Appeal No. 5489 of 2007)
B
JULY 8, 2010
· [DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]
Education/Educational Institutions:
c
Minority institutions - School run by a linguistic minority
- Receiving grant-in-aid - Circular issued by Education
Department of Delhi Government in September 1989 to all
the schools that appointment of scheduled castes and
schedule Tribes candidates was a precondition for all the 0
institution receiving grant-in-aid from Government in terms of
r.64 of the Delhi School Education Rules, 1973 - HELD: Rule
64(1 )(b) and the Circular of September 1989 are not
enforceable against linguistic minority schools in NCT of
Delhi - Delhi School Education Rules, 1973 - r.64(1)(b) - E
Delhi School Education Act, 1973 - ss. 20,21, 28(2).
Delhi School Education Rules, 1973:
r.64(1)(b) - Undertaking to be given by a school for grant-
in-aid to fill in the posts in the school with the Scheduled F
Castes and Scheduled Tribes candidates - HELD: Is not
enforceable against linguistic minority schools in NCT of
Delhi - The object and purpose of the DSE Act is to improve
the standard and management of school education and
protection to minority schools - Rules must fall within the G
ambit and scope of principal legislation - If r. 64(1 )(b) is
enforced against minority schools, it would adversely affect
and dilute the protection available to. minority school under
the Act and the Constitution - Delhi School Education Act,
81 H
82 SUPREME COURT REPORTS (2010] 8 S.C.R.
A 1973 - s.21- Constitution of India, 1950 - Articles 14, 15,
16(2), 29 and 30(2) - Interpretation of Statutes - Purposive
interpretation - Doctrine of purposive advancement.
Delhi School Education Act, 1973:
B s.2(o) - 'Minority school' - School run by Sindhi
Education Society - HELD: Is a linguistic minority school in
NCT of Delhi - Delhi School Education Rules, 1973 -
r.64(1)(b).
c CONSTITUTION OF /NOIA, 1950
Articles 14, 15, 29 and 30(2) - Minority Institutions -
Grant-in-aid - School run by Sindhi Education Society -
HELD: The Society enjoys the status of a linguistic minority
and the school being a minority institution is entitled to all
0
constitutional benefits and protection under Articles 29 and
30 - To receive grant-in-aid is a legitimate right of a school
subject to satisfying the requirement of law - Article 30(2)
requires the State not to discriminate the minority institution
in relation to matters of grant-in-aid - Delhi School Education
E Rules, 1973 - r.64(1)(b).
Articles 15, 29 and 30 - Linguistic minority - Right to
establish and administer school - HELD: Includes right to
appoint teachers - To appoint a teacher is part of the regular
F edministration and management of the school - A linguistic
minority is entitled to conserve its language and culture by a
constitutional mandate - A provision of law or a circular which
would be enforced against the general class may not be
enforceable with the same rigors against minority institutions,
G particularly, where it relates ,to establishment and
management of a school - Rule 64(1)(b) of DSE Rules, if
enforced, would adversely affect and dilute the right and
protection available to minority school under the Constitution
- Delhi School Education Rules, 1973 - r.64(1)(b).
H Articles 14, 15(5), 16, 29 and 30(1) - Reservation policy
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 83
GOVT. OF NCT OF DELHI
- Exception in regard to minority institutions - HELD: A
Although State is entitled to make law and reservations in
different fields for Scheduled Castes, Scheduled Tribes and
backward classes in the service under the State, but Article
15(5) carves out an exception for minority educational
institutions in regard to which the said power cannot be B
exercised.
Articles 12, 14 and 16 - "State" - ReservatiOn in relation
to 'service under the State' - Linguistic minority school run
by a society registered under Societies Registration Act - C
Receiving grant-in-aid - HELD: The expression 'service
under the State' would include service directly under the State
or its instrumentalities which can be termed as State within
the meaning of Article 12 - In order to bring a society,
organization or body within the expressions 'State' or 'other
authorities' appearing in Article 12, financial control, D
managerial and administrative control and functional control
of such institution must be exercised by the State - Merely
receiving grant-in-aid per se would not make a minority school
or institution 'State' within the meaning of Article 12 - Delhi
School Education Rules, 1973 - r.64(1)(b). E
Administrative Law:
Framing of policy - HELD: Is the domain of the
Government - It must do so within the framework of the
Constitution and the laws - Concept of, reservation has been F
provided primarily under Article 16 of the Constitution -
Minority institutions have been excluded under Article 15(5)
from application of reservation policy - State may not be well
within its constitutional duty to compel linguistic minority
institutions to accept a policy decision, enforcement of which G
will impinge upon their fundamental right and/or protection -
Constitution of India, 1950 - Articles 15(5) and 16 - Delhi
School Education Rules, 1973 - r. 64(1)(b) .
.Policy decision - Change of - Reasons for - HELD: H
84 SUPREME COURT REPORTS [2010] 8 S.C.R.
A When Government changes its policy decision, it is expected
to give valid reasons - Absence of reasons and apparent
non-application of mind would give colour of arbitrariness to
State action - Besides, State would not compel a linguistic
minority institution to accept a policy decision, enforcement
B of which will infringe its fundamental rights and/or protection.
Judgment - Reasoning - HELD: Reasoning is
considered as the soul of the judgment - Various principles
involved in the case need to be analised - Educational
Institutions.
c
A Senior Secondary School, run by the appellant-
Sindhi Education Society and availing the grant-in-aid,
received a communication in September 1989, addressed
to all the Schools by the Education Directorate that
D appointment of Scheduled Castes and Scheduled Tribes
candidates was a pre-condition for all the agencies
receiving grant-in-aid from the Government in terms of
Rule 64 of the Delhi School Education Rules, 1973. The
appellant-Society filed a writ petition before the High
E Court contending that the school being a minority
institution was outside the purview of the said
communication. The single Judge of the High Court
allowed the writ petition holding that the case was
entirely covered by the decision in Sumanjit Kaur's case 1
F rendered by the single Judge, and affirmed by the
Division Bench of the High Court. However, the Division
Bench set aside the judgment of the single Judge, and
expressing a dissent to the earlier Division Bench
decision in Sumanjit Kaur's case, granted the certificate of
G leave to appeal.
Allowing the appeal of the Society, the Court
HELD:1.1. There is no dispute to the fact that the
appellant-Society enjoys the status of a linguistic minority
H 1. Sumanjit Kaur v. Net of Delhi 2005 Ill AD (Delhi) 560.
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 85
GOVT. OF NCT OF DELHI
and the institution being a minority institution is entitled A
to all the constitutional be.nefits and protection under
Articles 29 and 30 of the Constitution of'lndia. The High
Court in Sindhi Education Society & Anr. Vs. The Chief
Secretary, Govt. of NCT of Delhi & Ors. (Writ petition No. 940
of 1975) has clearly declared that the appellant is a 8
linguistic minority and that judgment has attained finality.
Once an institution satisfies the ingredients of s.2(o) of
the Delhi School Education Act, 1973, it has to be given
the status of a minority institution. [para 14) [105-G-H; 106-
A] c
1.2. It is of great significance to notice that the
legislature in its wisdom by a specific provision u/s 21 of
the DSE Act has kept minority schools outside the ambit
and scope of s.20, i.e. the power of control and
management vested in the authority. Even any of alleged D
breach of conditions would not enable the authorities to
take over the management of any minority school.
Section 21, thus, is an absolute exception to the
applicability of s.20. The scheme of the DSE Act, in
particular, is to give greater freedom to the aided minority E
institutions and not to impinge upon their minority status
as granted under Article 30(1) of the Constitution. [para
16 and 25] [107-F-H; 113-0)
Re.: Kera/a Education Bill, 1957 (1959) SCR 995; T.M.A.
Pai Foundation v. State of Karnataka 2002 Suppl. F
3 SCR 587 = (2002) 8 SCC 481; Kanya Junior High School,
Bal Vidya Mandir v. U.P. Basic Shiksha Parishad 2006
Suppl. 4 SCR 813 = (2006) 11 SCC 92; Secy. Malankara
Syrian Catholic College v. T. Jose 2006 Suppl. 9 SCR 644
= (2007) 1 SCC 386; Brahmo Samaj Education Society v. G
State of WB. 2004 Suppl. 2 SCR 214 = (2004) 6 SCC 224;
Ahmedabad St. Xaviers College Society v. State of Gujarat
1975 (1) SCR 173 = AIR 1974 SC 1389; Father Thomas
Shingare v. State of Maharashtra 2001 Suppl. 5 SCR 636 =
(2002) 1 SCC 758; T. Devadasan v. Union of India (1964) H
86 SUPREME COURT REPORTS [2010] 8 S.C.R.
A SCR 680 = AIR 1964 SC 179; and Lt. Governor of Delhi v.
V.K. Sodhi & Ors. 2007 (8) SCR 1027 =AIR 2007 SC 2885,
referred to.
1.3. The DSE Rules specifically contemplate that the
State Government will not have any strict control over the
B management of the minority 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. The limited extent of control
exercisable by the authorities is demonstrated in DSE
C Rules 44, 59 and 96(3A) an·d (38). Besides these statutory
provisions and the scheme under the DSE Act, various
judgments of this Court have also consistently taken the
view that the State has no right of interference in the
establishment, administration and management of a
D school run by linguistic minority except the power to
regulate as specified. [para 53] [158-A-F]
1.4. 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
E interest and national interest of the country. 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, and can be laid down by the
F 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
G 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
H of books etc. However, the power to regulate,
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 87
GOVT. OF NCT OF DELHI
undisputedly, is not unlimited. It has more restriction than A
freedom particularly, in relation to the management of
linguistic minority institutions. [para 55,56 and 58) [159-
E-F; 160-C-F; 163-G-H; 164-A]
State of Kera/a v. Very Rev. Mother Provincial 1971 (1)
SCR 734 = (1970) 2 SCC 417; All Saints High School v. Govt. B
=
of A.P. 1971 (1) SCR 734 (1980) 2 sec 478; T.M.A. Pai
Foundation v. State of Kamataka 2002 Suppl. 3 SCR 587 =
(2002) 8 SCC 481; and Malankara Syrian Catholic College
v. T. Jose 2006 Suppl. 9 SCR 644 = (2007) 1 SCC 386,
referred to. C
1.5. Minority institutions 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 D
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 the freedom of the
minority schools on the ground of policy. It may amount E
to intrusion into the very minority character and
protection available to the community in law. [para 56)
(161-F-H; 162-A] .
1.6. The right to establish and administer includes a
right to appoint teachers. A linguistic minority has F
constitution and character of its own and 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 G
compatibility to the minority institution. 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 ...rfght of the linguistic H
88 SUPREME COURT REPORTS [2010] 8 S.C.R.
A minority institution to appoint a teacher cannot be
interfered with. The paramount feature of the DSE Act 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. Once
B 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. To provide and enforce any
regulation, which will ;practically defeat this purpose
c would have to be avoided. Besides, 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.
D [para 54, 59 and 63) [158-G; 164-C-G; 168-G-H]
2.1. Under s. 28(2) of the DSE Act, 1973, rules can be
framed in regard to the condition which every existing
school shall be required to comply. It has to be noticed
that such Rules can be framed and have only one
E purpose 'make rules to carry out the provisions of the Act•.
The framing of Rules does not empower the
Administrator to go beyond the purpose or object of the
Act and all the Rules so framed should be intended only
to further the cause of the Act and bring nothing into
F existence, which is specifically or by necessary
implication impermissible under 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. Section 21 is sufficiently indicative of the
G 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. DSE Act was
enacted primarily for the purpose of better organization
and development of school education in the Union
H Territory of Delhi and for matters connected therewith or
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 89
GOVT. OF NCT OF DELHI
incidental thereto. Thus, the very object and propose of A
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. -
[para 17 and 58) [108-8-F; 164-8; 163-D-F] B
Islamic Academy of Eduation v. State of Karnataka 2003
=
(2) Suppl. SCR 474 (2003) 6 SCC 697; P.A. lnamdar v.
State of Maharashtra 2005 (2) Suppl. SCR 603 = (2005) 6
sec 537, referred to.
c
2.2. In the case of Kanya Junior High School, Bal Vidya
Mandir the Court has kept a clear line of distinction
between laws made b~· the State to regulate the
administration of educational institutions receiving grant-
i n-a id but if such regulations interfere with overall o
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. [para 43) [144-H; 147-E-F] E
Kanya Junior High School, Bal Vidya Mandir v. U.P.
=
Basic Shiksha Parishad 2006 Suppl. 4 SCR 813 (2006) 11
sec 92, relied on.
2.3. Under Rule 60, every aided school, which was F
receiving aid, will continue to receive such aid, so long
as it fulfills the conditions of receiving the aid, in terms
of Rule 64. Rule 64 deals with the condition that an .
undertaking in writing has to be filed by the institution to
receive the grant-in-aid allowed by the competent
authority under the provisions of the DSE Act. Sub-rule G
(1)(b) of r.64 deals with the relevant condition that the
school shall fill in the posts in the school with the
Scheduled Castes and the Scheduled Tribes candidates
in accordance with the instructions issued by the Central
H
90 SUPREME COURT REPORTS [2010] 8 S.C.R.
A Government from time to time and also maintain the roster
and other connected returns in this behalf. 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
B event the Administrator shall not be under any obligation
to give grant-in-aid to such schools. [para 22 and 49] [111-
C-F; 151-F]
2.4. Article 30(2) requires the State not to discriminate
against any educational institution on the ground that it
C is under the management of a minority, whether based on
religion or language, while granting aid to the educational
institution. The Government does not enjoy identical
control over the management of the schools belonging
to the minority and/or majority schools. The logical
D 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. [para 47 and 49] [150-
C; 152-B]
E
Unni Krishnan, J.P. V. State of A.P. 1993 (1) SCR 594 =
(1993) 1 sec 645, referred to.
2.5. The purpose of granting protection or privilege
to the minorities in terms of Article 29, and at the same
F 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 is obvious that the constitutional intent is to
bring the minorities at parity or equality with the majority
G 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. [para 58] [163-B-D]
H
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 91
GOVT. OF NCT OF DELHI
2.6. The concept of equality stated under Article 30(2) A
has to be read in conjunction with the protection under
Article 29 and thus it must then b~ 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 B
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 c
institutions. All these powers must ultimately, stand in
comity to the provisions of the Constitution, which is the
paramount law. [para 60] [165-D-F]
2.7. Besides, in the given facts and circumstances
of the case, the court is also duty bound to advance the D
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, E
keeping the rule of purposive interpretation in mind, one
has also further to 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'. Courts will have to F
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 G
school education. In the considered view of the Court, 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 H
92 SUPREME COURT REPORTS [2010] 8 S.C.R.
A of the minority to administer and manage affairs of its
school. 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 of the DSE Act
in the Rules in the case of minority institutions, still Rule
B 64(1)(b), if enforced, would adversely affect and dilute the
right and protection available to the minority school under
the Constitution. Once the State lacks basic power and
jurisdiction to make special provisions for reservations
in relation to minority institutions, which do not form part
c 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. [para 54,58 and 60] [159-B; 163-F-G;
165-F-H; 166-C]
3.1. Article 14 of the Constitution commands equality
D before law or the equal protection of laws. Although, 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, but the
E Constitution has itself made out certain exceptions to the
general rule of equality in terms of Articles 15 and 16.
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
F socially and educationally backward classes of 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
G 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.
[para 45-46 and 50] [148-C; 152-C-D]
H 3.2. Article 16 which ensures equality of opportunity
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 93
GOVT. OF NCT OF DELHI
in matters of public employment prohibits discrimination A
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. This power of the
State is in relation to the 'service under the State', which
expression would obviously include service directly B
under the State Government or its instrumentalities and/
or even the sectors which can be termed as State within
the meaning of Article 12 of the Constitution. Once an
organization or society falls outside the ambit of this
circumference, it will be difficult for the Courts to hold that c
the State has a right to frame such laws or provisions or
make reservations in the field of employment of that
organization/society. [para 50] [152-E-H; 153-A-B]
..
3.3. Merely receiving grant-in-aid per se would not
make a minority school or institution 'State' within the D
meaning of Article 12 of the Constitution. In order to bring
a society, organization or body within the expression
'State' or 'other authority' appearing in Article 12, financial
control, managerial and administrative control and
fqnctional control of such institution must be exercised E
by the State. 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, Rule 64(1 )(b) cannot be enforced against the
linguistic minority school. Rule 64(1)(b) and the circular F
of September, 1989, are not enforceable against the
linguistic minority school in the NCT of Delhi. [para
51,52,67 and 68) [154-A; 153-D; 172-E-H]
Ajay Hasia v. Khalid Mujib Sehravardi 1981 (2)
SCR 79 = (1981) 1 SCC 722; Zoroastrian Coop. Housing G
Society Ltd. v. District Registrar, Coop. Societies (Urban)
2005 (3) SCR 592 = (2005) 5 sec 632; State of U.P. v.
=
Radhey Shyam Rai 2009 (4) SCR 143 (2009) 5 SCC 577,
referred to.
H
94 SUPREME COURT REPORTS [2010] 8 S.C.R.
A 4.1. 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
B 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 corners
of law and to achieve the laudable cause of upliftment of
c a particular section of the society. 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
D interest of the entire community rather than a section
thereof. [para 65-66) [170-E-F; 171-F]
M. Nagaraj v. Union of India 2006 (7 ) Suppl. SCR 336
=(2006) 8 sec 212, referred to.
E 4.2. In its wisdom and apparently in accordance with
law Government had taken a policy decision and issued
the circular dated 21st March, 1986 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 a
F change of mind by the State that resulted in issuance of
the subsequent circular of September, 1989. 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
G action, must be supported by some valid reasons and
should be upon due application of mind. Absence of
reasoning and apparent non-application of mind would
give colour of arbitrariness to the state action. [para 66)
[171-F-H; 172-A-B]
H
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 95
GOVT. OF NCT OF DELHI
4.3. Besides, State actions should be actio quaelibet A
et 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 B
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, c
enforcement of which will infringe their fundamental right
and/or protection. On the contrary, the minority can
validly question such a decision of the State in law. [para
67) [172-C-FJ
5.1 This Court does not approve the view expressed D
by the single Judge of the Delhi High Court in the case
of Sumanjit Kaur insofar as it held that the regulation
would compel appointments to the teaching faculty in the
minority schools of the persons, who may be inimical
towards the minority community. The Court is of the E
considered view that the Single Judge as well as the
Division Bench erred in law in stating this proposition as
it is contra-/egam. While deciding a constitutional matter
in accordance with law, the Court would not be
competent to raise a presumption of inimical attitude of F
and towards one community or the other. 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 of the High G
Court, in the instant matter, was right in not accepting the
said reason given in Sumatjit Kaur's case. But, it was
expected of the Division Bench to critically analyze other
reasons given by the Single Judge in that case. [para 61-
62] [167-B-H; 168-A-F]
H
96 SUPREME COURT REPORTS [2010] 8 S.C.R.
A Sumanjit Kaur v. NCT of Delhi 2005 Ill AD (Delhi) 560
- Disapproved to the extent it observed that regulation
would compel appointments to teaching faculty of
persons who may be inimical towards minority
community.
B 5.2 Reasoning is considered as the soul of the
judgment. The discussion in the impugned judgment
does not analyze the various principles enunciated in
regard to the protection available to the linguistic
minorities under Article 29 and the result of principle of
C equality introduced by Article 30(2) of the Constitution.
Therefore, the view of the Division Bench in the judgment
under appeal cannot be accepted. [para 62] [168-D-F]
Case Law Reference:
D 2005 Ill AD (Delhi) 560 Disapproved para 1
(1959) SCR 995 referred to para 12
2002 Suppl. 3 SCR 587 referred to para 27
E 2006 Suppl. 4 SCR 813 relied on para 27
2006 Suppl. 9 SCR 644 referred to para 27
2004 Suppl. 2 SCR 214 referred to para 27
1975 (1) SCR 173 referred to para 28
F
2001 Suppl. 5 SCR 636 referred to para 28
1964 SCR 680 referred to para 28
2007 (8) SCR 1027 referred to para 28
G
2003 (2) Suppl. SCR474 referred to para 41
2005 (2) Suppl. SCR603 referred to para 42
1993 (1) SCR 594 referred to para 48
H 1981 (2) SCR 79 referred to para 51
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 97
GOVT. OF NCT OF DELHI
2005 (3) SCR 592 referred to para 51 A
2009 (4) SCR 143 referred to para 51
1971 (1) SCR 734 referred to para 56
1971 (1) SCR 734 referred to para 56 B
2006 (7) Suppl. SCR 336 referred to para 65
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
5489 of 2007.
From the Judgment & Order dated 30.11.2006 of the High C
Court of Delhi at New Delhi in LPA Nos. 33, 34, 35, 36, 40,
41, 42 & 43 of 2006.
P.P. Malhotra, ASG, Madhurima Mridul, Rekha Pandey,
Chetan Chawla (for Anil Katiyar), D.S. Mahra, Ashok Gurnani D
(for K.L. Janjani), H.K. Puri for the appearing parties.
The Judgment of the Court was delivered by
SWATANTER KUMAR, J. 1. The Bench hearing the
1.etters patent appeal in the High Court of Delhi at New Delhi, E
while se~ting aside the judgment/order passed by the learned
Single Judge dated 14th September, 2005 in Writ Petition (C)
No.2426 of 1992, issued a certificate of leave to appeal under
Article 133 read with Article 134-A of the Constitution of India,
1950 (for short 'the Constitution') in its judgment dated 30th F
November, 2006 and considered it appropriate to frame. the
.following questions to be decided by this Court :-
.. (a) Whether Rule 64(1)(b) of the Delhi School
Education Rules 1973 and the orders/ G
instructions issued thereunder would, if
made applicable to an aided minority
educational institution, violate the
fundamental right guaranteed under Article
30(1) of the Constitution and are the H
98 SUPREME COURT REPORTS [2010] 8 S.C.R.
A respondents herein entitled to a declaration
and consequential directions to that effect ?
(b) Have the judgments of the learned Single
Judge of the High Court in Sumanjit Kaur v.
NCT of Delhi [2005 Ill AD (Delhi) 560), as
B
affirmed by the decision dated 1.2.2006 of
the Division Bench of the High Court in (LPA
Nos.445-446/2005) Govt. of National
Capital of Territory of Delhi v. Sumanjit
Kaur been correctly decided ?
c
2. It is useful to notice at this juncture itself that the Division
Bench doubted the correctness of judgment of another Division
Bench of that Court in the case of Govt. of NCT of Delhi v.
Sumanjit Kaur in LPA Nos. 445-446 of 2006 dated 1.2.2006.
D The Division Bench had affirmed the view taken by the Single
Judge in Sumanjit Kaur (supra). The learned Single Judge had
expressed the view that such circulars and regulations issued
by the Directorate of Education, would be unconstitutional since
they are likely to interfere with the choice of the medium of
E instruction as well as minority character of the institution by
compelling the appointment to the teaching faculty of persons,
who may be inimical towards that minority community. The
Court further held that since the approval in the facts of the case
would be deemed to have been grantee:, the Court was not
F expected to discuss or pass further orders in the writ petition.
The Division Bench, which passed the impugned judgment
expressed the view contra to the view taken by the learned
Single Judge in the Case of Sumanjit Kaur (supra), as affirmed
by the Division Bench. While noticing that the Government of
G NCT of Delhi had filed the Special Leave Petition (C) No.
16374 of 2006 in this Court in that case, the Division Bench in
the present case thought it fit to grant the certificate for leave
to appeal to this Court. ·
3. This is how we have been called upon to examine the
H
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 99
GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.]
. constitutionality and legality or otherwise of the above questions A
framed by the High Court of Delhi. We are also of the
considered view that besides the above question, it will have
to be examined that even if the relevant provisions of the Delhi
School Education Act, 1973 (for short the 'DSE Act') are not
unconstitutional, would they still apply with their rigors to the B
linguistic minority schools receiving grant-in-aid from the
Government. Before we enter upon the aspects relating to law
on the above issues, reference to the basic facts would be
necessary.
Facts:- c
4. The appellant - Sindhi Educa,tion Society (hereinafter
referred to as 'the Society') is a Society established and duly
registered under the provisions of the Societies Registration
Act. 1860. The Society is rt.inning, inter alia, a school known D
as S,E.S. Baba Nebhraj Senior Secondary School at Lajpat
Nagar, New Delhi. · · ·
. 5. Accqrdif1g to the Society, Sindhi language is one of the
languages included in VIII Schedule of the Constitution and the E
people speaking Sindhi language are scattered in various parts
of the country. As Sindhi language is not spoken by the majority
of peopie in Delhi, therefore, th'e Sindhi community in Delhi is
and has been held to be a linguistic minority by virtue of Article
30(1) of the Constitution. The Society, therefore, has a
constitutional right to establish and administer educational F
institutions of its choice. In furtherance of such an object, the
school was established for preservation of Sindhi language and
managing the affairs of the school as per its constitution and
under the provisions of the relevant laws.
G
6. In the year 1973, the OSE Act came into force with a
view to provide better organization and development of the
school education in Union Territory of Delhi and for matters
connected therewith and incidental thereto. Soon after coming
into force of the provisions of the DSE Act, 1973, the Society H
100 SUPREME COURT REPORTS [2010) 8 S.C.R.
A felt that certain provisions of the DSE Act infringed the minority
character of the Society, particularly, in matters related to
administration and management of the school.
7. It appears that the society filed a writ petition in the High
Court of Delhi being Writ Petition (C) No. 940 of 1975, titled
8
Sindhi Education Society (Regd.) v. Director of Education and
others, which came to be disposed of by a detailed judgment
of the Delhi High Court dated 14th July, 1982. In that judgment,
the Court specifically held that the Society was a linguistic
minority and the provisions of the DSE Act as specified in the
C judgment would not be applicable to the Society. In order to put
the matters with clarity, it will be useful to refer to the findings
recorded by the Court which read as under:-
"In the present case the Delhi School Education Act is
D applicable only to the Union territory of Delhi. It is with
reference to this Territory that one has to consider as to
whether Sindhi is a language spoken by the majority or
minority of the people. On this there can be no doubt.
Sindhi is not spoken by majority of the people in Delhi and,
E therefore, the Sindhi community in Delhi can legitimately
be regarded as a linguistic minority. Just as a religious
minority may be composed of persons whose mother-
tongue may not be the same, similarly a linguistic minority
may not necessarily be composed of people who belong
F to a religious minority of the State. As such, every person,
who is a Sindhi, would be regarded as belonging to a
linguistic minority irrespective of the fact as to whether he
is a Hindu, or a Muslim or a Christian to the effect that
some of the provisions of the Act and the Rules would not
apply to minority institutions, while some other provisions
G
could be made applicable only with certain modifications
or in accordance with the observations made by the Court.
We may now summarise the decision of this Court with
regard to those provisions of the Act and the Rules which
it held as not being applicable, or being applicable as per
H
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 101
GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.]
the directions contained therein, because the learned A
counsel for the petitioner states that a similar direction
should be issued in this case also.
)()()( xxx xxx xxx xxx '
The aforesaid provisions are not to apply to the school but B
the Director of Education, Delhi should be kept informed
of any order of dismissal, removal, reduction in rank or
termination of service of an employee by the management.
If the Administration receives information· that the
disciplinary powers are being abused by the school then C
the Administration will have a right to suspend, reduce or
stop the grant-in-aid to the School after giving a hearing
to the school.
Section 27A and B :- The said provisions are not to apply D
to the minority school.
The writ petition is accordingly allowed in the aforesaid
terms and, like in Jain Sabha's case (supra), it is directed
that the aforesaid provisions of the Delhi School Education
Act, 1973 and the Rules framed thereunder will not apply E
to the petitioner or would apply only in the manner in which
they have been interpreted by this Court. The petitioner will
be entitled to costs. Counsel's fee Rs.550/-."
8. The aforesaid judgment appears to h~ve attained finality F
and, in fact, was not impugned before this Court. The Division
Bench, while deciding the above case, clearly held that certain
Rules would not be applicable and it specifically noticed the
provisions relating to the constitution of the Managing
Committee under Rule 59, Rule 64, different Clauses under G
Rule 96(3), Rule 98, Rule 105 and Rule 120 of Delhi School
Education Rules, 1973 (for short 'DSE Rules') in that behalf.
The Court held that Rule 64 of the 'DSE Rules is to be construed
in respect of minority schools to require compliance only if
t~ose provisions of the Act and the Rules and instructions H
102 SUPREME COURT REPORTS (2010) 8 S.C.R.
A thereunder are in consonance with the provisions of the
Constitution, particularly, with Article 30(1) of the Constitution.
9. Rule 64, primarily, deals with the conditions of providing
grant-in-aid and further states that no aid is to be granted unless
suitable undertaking is given by the Managing Committee. Rule
8
64 came to be amended by Notification Nos. 1340-2340 dated
23rd February, 1990. This Rule prescribe certain limitation
which the Competent Authority can impose in exercise of its
powers. Even before amendment of this Rule, on 12th March,
1985, instructions were issued by the Deputy Director of
C Education, addressed to the appellant stating, inter alia, that
in accordance with provision of Rule 64 of the DSE Rules, the
Managing Committee of the Society was required to furnish an
undertaking that they would make reservation in the
appointments of teachers for the Scheduled Castes and
D Scheduled Tribes. The reference was also made to the
instructions issued by the Department of Personnel,
Government of India, wherein reservation for Scheduled Castes
and Scheduled Tribes in the Institutions/Organisations was
ordered. The relevant part of the said letter reads as under :-
E
"4. Since the schools are required to apply for grants-in-
aid every years on the prescribed proforma as provided
under the Act, they are also required to given undertaking
to make reservation in the services and posts for
F scheduled castes and scheduled tribes accordingly. A
specimen of the declaration is sent herewith the request
that the same be sent to this office duly filled in and signed
with stamp of the Authority signing.
5. It may be noted that the future grants-in-aid shall be
G released on giving the aforesaid undertaking on the
enclosed proforma."
The appellant Society responded to that letter vide reply
dated 15th April, 1985, inviting attention of the authorities to the
H judgment of the High Court dated 14.7.1982, in Writ Petition
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 103
GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.]
No. 940of1975, deciding, inter alia, that the school in question, A
has been held to be a minority institution and that Rule 64 of
the DSE Rules is to be accordingly construed in respect of
minority school(s) that they require compliance, only, if the same
is in consonance with the provisions of Article 30(1) of the
Constitution. B
10. The Secretary (Education), Govt. of NCT of Delhi,
Respondent No.3, thereafter vide his communication dated
21st March, 1986, informed the appellant that the undertaking,
which was required to be given by all the Government aided
schools in the matter of compliance with the provisions relating C
to reservation for Scheduled Castes and Scheduled Tribes in
the institutions, is not applicable to the minority institutions.
Thus, they were not required to adhere to the same. It will be
useful to refer to the communication of the Government at this
stage itself, which reads as follow :- 0
"In connection V.:ith circular letter issued vide even number
dated 12.3.85, this is hereby clarified that an undertaking
in writing which was required to be given by all the Govt.
Aided Schools in the matter of compliance with the E
provisions relating to reservation for SC/ST in the
institutions is not applicable to the minority institutions. As
such the managements of the institutions are at the
discretion to adhere or not to adhere to the instructions
issued by the Govt. of India regarding reservation of SC/ F
ST."
· 11. The aforesaid letter was issued after the judgment of
the Court had been pronounced, however, according to the
appellant, in violation of all the principles and the law laid down
by that Court, they still .received another communication from G
the authorities in September, 1989, addressed to all the schools
. that appointment of the Scheduled Castes and Scheduled
Tribes candidates is a precondition for all" the agencies
receiving grant-in-aid from the Government and while referring
to Rule 64 of the DSE Rules and its ame~dment, they were H
104 SUPREME COURT REPORTS [2010] 8 S.C.R.
A required by the authorities to comply with this condition. The
correctness of this action of the respondent was questioned by
appellants by filing a writ petition in the High Court, which came
to be registered as Writ Petition (C) No.2426 of 1992 titled as
Sindhi Education Society v. Union of India and Others. This
B writ petition was allowed by the learned Single Judge vide his
Order dated 14.9.2005. The learned Single Judge felt that the
case was entirely covered by the judgment of that Court in the
case of Sumanjit Kaur (supra). That was the primary and only
reason, stated by the learned Single Judge, for allowing the writ
c petition.
12. Aggrieved from the judgment of the learned Single
Judge, the NCT of Delhi filed a letter patent appeal being LP.A.
Nos. 33 to 36 of 2006 and 40-43 of 2006, and the same was
not only accepted but the Division Bench had felt it proper to
D grant certificate of leave to appeal to this Court, vide judgment
dated 30.11.2006. While setting aside the judgment of the
learned Single Judge and also expressing a dissent to the
Division Bench Judgment in the case of Sumanjit Kaur (supra),
the Division Bench, primarily, recorded the reasons as [a] that
E Rule 64(1)(b) does not infringe any right of the minority
institution, [b) Clause 11 of the Kerala Education Bill, 1957,
which was the subject matter of consideration before the
Supreme Court in the case of In Re. Kerala Education Bill,
1957, [(1959) SCR 995), was pari materia to Rule 64(1)(b) of
F DSE Rules, and as such was in conformity with law and lastly,
implementation of roster of reservation was in consonance with
the stated principle and the fundamental rights are not infringed.
For these reasons, the High Court passed the order afore-
noticed, resulting in filing of the present appeal.
G
13. We have already noticed the questions of law of
general public importance, which had been framed by the High
Court at the time of issuance of certificate. The appellants
herein succeeded before the learned Single Judge, which order
in turn, was set aside by the Division Bench of the High Court.
H
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 105
GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.]
The appellants in writ petition had raised a specific challenge A
to the provisions o_f Rule 64(1 )(b) of the OSI: Rules which had
been accepted by the learned Single Judge as the matter was
stated to be covered by the judgment of that Court in Sumanjit
Kaur's case (supra). The respondents vide their:letter dated
12th March, 1985, and, thereafter, while referring to the B
Department of Personnel and Administration, letter dated 7th
October, 1974, pressed upon the Managing Committee of the
institutions, which were Government aided including minority
institutions, to furnish an undertaking that they would abide by
the rule promoting reservation while making appointment of c
teachers in the school. Thus, the question that clearly arise for
consideration· before this Court is whether the provisions of
Rule 64(1 )(b) of the DSE Rules is ultra-vires or violative of Article
30(1) of the Constitution. In the alternative, whether the said
Rule, as framed, can be enforced against the Government 0
aided institutions belonging to linguistic minorities.
In order to examine this aspect in some elaboration, we .
would have to dissed it into two different sections. f:irstly, the.
law in relation to such minorities, as has been settled by catena
of judgments of this Court, and thefr co,rrect application to the E
present case, secondly, analysis of the scheme of the DSE Act
and ttie Rules framed there under, in relation to minority
institutions. Depending upon the answer to.these two aspects,, ..
lastly, whether the Rule is enforceable against the minority
institutions to the extent that the autrorities can deny grant-in- F
aid for non-compliance. ··
Scheme under the Delhi School Education' Act, 1973 a·nd
the Rules framed thereunder in relation to the Minority .
Institutions :- G
14. As already noticed, there is no dispute to the fact that
appellant is a minority institution and the Society is one which
enjoys the status of a linguistic minority and thus is entitled to · ·
all the constitutional benefit and protection under Articles 29 and .,
• I " H
106 SUPREME COURT REPORTS [2010) 8 S.C.R.
A 30 of the Constitution. Firstly, one has to examine what is a
minority. 'Minority', would include both religious and linguistic
minorities.
Section 2(o) of the DSE Act defines 'minority school' as
8 follows:-
"minority schoor means a school established and
administered by a minority having the right to do so under
clause (1) of Article 30 of the Constitution
c Once an institution satisfies the above ingredients, it has
to be given the status of a minority institution. The High Court
in its judgment in Sindhi Education Society (Writ Petition
No.940of1975) (supra) had clearly declared that the appellant
is a linguistic minority and that judgment has attained finality.
0 15. There is hardly any dispute in regard to status of this
Society. Prior to coming into force of DSE Rules, the Society
was obviously free to carry on its activity of running the
educational institution, free from any restriction and in
accordance with law. OSE Act was enacted to provide better
E organization and development of school education in Union
Territory of Delhi and for matters connected therewith or
incidental thereto. The very object of this Act was, therefore, to
improve the organization and school education in Delhi. The
primary object, thus, was to aid and develop the education
F system at the school level. In order to achieve this. purpose,
power is vested in the Administrator to regulate education In
all schools in Delhi in accordance with the provisions of the OSE
Act and Rules. made there under. Section 3(3) of the DSE Act
makes it abundantly clear that on and from the commencement
G of DSE Act, and subject to the provisions of Clause 1 of Article
30 of the Constitution, the establishment of a new school or
opening of a higher class or even closing of existing classes
shall have to be in accordance with the provisions of the OSE
Act, but for such compliance, the recognition shall be denied
H to such institution by the appropriate authority. The school Is
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 107
GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.]
required to have a scheme of management in terms of Sgction A
5 of the DSE Act, but such scheme insofar as it relates to the
previous approval of the appropriate authority, will not be
applicable to the scheme for an unaided school.
16. Powers of wide dimensions and authority are vested
in the Administrator under Section 20 of the DSE Act, which B
forms part of Chapter VII relating to taking over of the
management of the schools under the provisions of the Act.
Whenever the Administrator is satisfied that the managing
committee or the manager of the school has failed or neglected
to perform their duties and carry on the management of the C
school in accordance with the provisions of the Act, the
Administrator can take over the management of the school
whether such school is recognized or not. But, such action can
be taken only in accordance with the prescribed procedure.
However, where the Administrator feels that it is expedient to D
take over the management of the school, it could pass orders
from time to time, outer limit being 3 years which again could
be extended for further period, if the Administrator is of that
opinion for valid reasons but, in any case, it cannot exceed the
period of 5 years in its entirety. These powers of the E
Administrator indicate the legislative intent to ensure that the
object of the DSE Act is not defeated and every recognized or
unrecognized institution, without classification on the basis of
receiving Government aid, should function and be managed in
accordance with the provisions of the DSE Act and the Rules F
framed thereunder. It is of great significance to notice here that
the legislature in its wisdom by a specific· provision under
Section 21 of the DSE Act has kept minority schools outside
the ambit and scope of Section 20. In other words, the power
of control and management vested in the authority even on the G
basis of alleged breach of conditions would not enable the
authorities to take over the management of any minority school.
Section 21, thus, is an absolute exception to the applicability
of Section 20 of the DSE Act. Section 28 of the DSE Act
empowers the Administrator to frame Rules with the previous H
108 SUPREME COURT REPORTS (2010] 8 S.C.R.
A approval of the Central Government. The Administrator has
been empowered under Section 28(2), in particular and without
prejudice to the generality of the stated powers, to frame Rules
in relation to the matters specified in that sub-section.
17. It will not be necessary for us to notice in detail the
8
purposes for which Rules can be framed but reference to few
of them would be useful. Under Section 28(2)(b), Rules can be
framed in regard to the condition which every existing school
shall be required to comply. While, Section 28(2)(g)
contemplate framing of minimum qualifications for, and method
C of recruitment, and the terms and conditions of service of
employees, Section 28(2)(k) empowers the Administrator to
frame Rules in regard to the conditions under which aid may
be granted to recognized schools and on violation of which, aid
may be stopped, reduced or suspended and Section 28(2)(q)
D relates to faming of Rules for admission to a recognized school
and lastly under Section 28(2)(u), Rules can. be framed in
regard to financial and other returns to be filed by the managing
committee of recognized private school. It has to be noticed
that all these Rules can be framed and have only one purpose
E 'make rules to carry out the provisions of the Act". In other
words, the framing of Rules does not empower the
Administrator to go beyond the purpose of object of the Act and
all these Rules so framed should be intended only to further the
cause of the Act and bring nothing into existence, which is
F specifically or by necessary implication impermissible under the
provisions of the DSE Act.
18. At this point reference to some of the DSE Rules can
be of some assistance. Under Chapter-II - Regulation of
Education - The .freedom of minority institutions to establish
G educational instttutions for advancement of their own language
and culture is a protected freedom. Rule 10 of the .OSE Rules
recognizes such mandate. It is provided there that any linguistic
minority which intends to set up school with the object of
imparting education in the mother-tongue of such linguistic
H
SINDHI EDUCATION SOCIETY v. CHIEF.SECRETARY, 109
GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.]
minority, shall be entitled to do so and shall be' entitied to A
receive grant-in-aid, if other conditions for that purpose are
satisfiea. However, second proviso to this" rule states tha.t
linguistic minority can decide to impart education at the school
in a language other than the language of such linguistic r;ninority.
In that event, it shall not be obligatory upon the Administrator B
to give grant-in~aid to such schools. In other ·words, this rule
·recognizes two aspects - firstly, the extent of freedom available
to the linguistic minority for educational purposes and secondly,
an obligation on the part of the Administrator to give grant-in-
aid unless the linguistic minority was covered by the second ~C
proviso. The indication that such institution wouid riormally be
. entitled to receive grant-in-aid, if they satisfy the conditions, is
clear in terms of Rule 10. ·· ·
19. Chapter-Ill deals with Opening of New Schools or
Classes or Closure of Existing Schools or Classes. Rule 44 D
provides that every individual, association of individuals, society
or trust which desires to establish a new school, not being a
minority school, is required to give intimation in writing to the
Administrator of their intention to establish such school. The
details of the intention/i.Atimation required have'been stated in E
Rule 44(2). Amongst others, it requires details to be submitted
in respect of managing committee of the proposed new school
and the proposed procedare until its recognition under the DSE
Act for selection of the Head of the School and the teachers
as well as the non-teaching staff etc. 'It is noteworthy that this F
rule is applicable to the institutions not being a minority school.
The minority institution, therefore, has specifically been kept out
of the application of this rule, the purpose being that the .
administration and management of a minority school will remain
outside the rigors of compliance of Rule-44. G
20. Chapter-IV of the DSE Rules deals wit'1. Recognition
of Schools. Rule 50 states the condition which an institution is
required to satisfy before it can be granted recognition. Rule
56 empowers the competent authority to suspend or withdraw 'H
the recognition granted.
110 SUPREME COURT REPORTS [2010] 8 S.C.R.
A 21. Chapter-V deals with the Scheme of Management of
the recognized schools. Rule 59 is one other provision which,
primarily, indicates the limitations of the schools in regard to
furnishing of scheme of the management of the recognized
schools. All the recognized schools are expected to submit to
B the authority the scheme of management and comply with the
requirements of formation of managing committee of the school
and total number of the members in terms of that rule. The
managing committee would include two members to be
· nominated by the Director, and other members to be nominated
c or elected, as the case may be, in accordance with the rules
and regulations of the society in terms of Section 590(1)(iv), (v)
and (vi) respectively. The members, who are nominated by the
Director and the persons nominated by the Advisory Board, in
the case of schools other than the minority schools, have an
effective role to play in decisions of management as .well as
D they have right of voting. However, in regard to minorifYschool
the framers of the rule have added five provisos to Rule 59(1).
They specifically provided that in a minority school, the
members, instead of being elected, would be the one
nominated by the society or the trust by which such unaided
E minority school is run. The educationist, to be nominated by the
Director, shall be a non-official belonging to the minority by which
the school is established and run, and the managing committee
shall co-opt two senior-most teachers out of a panel of ten
senior-most teachers of the school by rotation and in case the
F school works in two shifts, then one senior-most teacher shall
be co-opted from a panel of five senior most teachers in each
shift by rotation. Sub-rule (iv) of Rule 59 which gives powers to
the Advisory Board to nominate two persons will not apply in
the case of the minority school. Furthermore, the members
G nominated by the Director, Education in exercise of its powers
under Sub-rule (v} of Rule 59 shall not be entitled to take part
in the management of the minority school and shall function as
advisers and observers to put forward the views of the
Government in the meeting. This reflects the kind of control, the
H
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 111
GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.]
framers of the rule desired, that the authorities should exercise A
over the aided minority schools in comparison to !,he
Government aided non-minority schools. There is clear line of
distinction which gets more and more prominent with further
reference to the various provisions of the DSE Act and the
Rules framed thereunder. B
22. Chapter-VI is the basic chapter, with which, we may
be concerned in the present case, as it deals with grant-in-aid.
Under Rule 60, every aided school, which was receiving aid,
will continue to receive such aid, so long as it fulfills the C
conditions of receiving the aid, in terms of Rule 64. Rule 64
deals with the condition that an undertaking in writing has to be
filed by the institution to receive the grant-in-aid allowed by the
competent authority under the provisions of the DSE Act. The
Rule reads as under :
D
"(1) No school shall be granted aid unless its
managing committee gives an undertaking in
writing that:
(a) it shall comply with the provisions of the Act E
and these rules;
(b) it shall fill in the posts in the school with the
Scheduled Castes and the Scheduled Tribes
candidates in accordance with the
instructions issued by the Central F
Government from time to time and also
maintain the roster and other connected
returns in this behalf;" ·
Rule 65 details the conditions which a school, applying for G
grant-in-aid, should satisfy. The grant-in-aid is required to be
given only for the qualified staff as Rule 66 imposes no
obligation upon the State to release grant-in-aid in relation to
unqualified staff. The management of the school must employ
adequate number of qualified teachers and other staff which is H
112 SUPREME COURT REPORTS [2010) 8 S.C.R.
A approved by the Director under the norms prescribed for such
post or which may be prescribed from time to time.
23. Rule 96 under Chapter VIII relates to the Recruitment
and Terms and Conditions of Service of the Employees of the
Private Schools other than the Unaided Minority Schools. This
8
chapter itself will not apply to unaided minority schools but
would apply to other schools. The chapter deals with how a
selection committee will be constituted and how the employees
including the teachers would be appointed to the schools. DSE
Rules 96(1) to 96(3) deals in some detail with reference to
C appointment, constitution of the selection committee,
methodology of selection and appointment to the post of
teacher as well as Group-D employees. Significantly, DSE
Rules 96(3A) and 96(38) are exceptions to the earlier part of
the DSE Rules. The said DSE Rule 96(3A) refers to various
D nominations which makes it clear that in the case of aided
minority schools, such nominated persons, under different
clauses stated therein, shall act only as advisers and will not
have the power to vote or actually control the selection of an
employee. Rule 96(38) states that notwithstanding anything
· E contained in sub-rule (3), the Selection Committee of a minority
school shall not be limited by the number specified in the said
sub-rule and its managing committee may fix such number.
Obviously, all these provisions have been framed with the
emphasis on the fact that authorities like the Administrator,
F Director and other officers do not have a direct, and in some
cases, even indirect participation in the management and
administration of the minority school which includes the
selection and appointment of teachers. It attains a greater
significance, once these provisions along with restrictions
G stated in the DSE Act are read in conjunction with Articles 29
and 30 of the Constitution.
24. Chapter-XI of the DSE Rules deal with Unaided
Minority School. It requires that recruitment of employees of each
recognized unaided minority school shall be made on the
H
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 113
GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.]
recommendation of a Selection Committee to be constituted A
by the managing committee of that school. Rule 128(1) requires
the minimum qualifications for appointment as a teacher of an
unaided minority school shall not be less than those as are
prescribed by the Affiliating Board. In the event, no minimum
qualifications have been specified by the Affiliating Board, in B
respect of the post of any teacher, the minimum qualifications
for recruitment to the such post be made by the Administrator
after considering such recommendations or suggestions as
may be made by the unaided school in this behalf. In terms
of Rule 129, the appropriate Authority has been empowered c
to relax the minimum qualification for such period as it may
deem fit and proper. Chapter XII deals with 'Admissions to
Recognized Schools'.
25. Thus, the scheme of the DSE Act, in particular, is to
give greater freedom to the aided minority institutions and not D
to impinge upon their minority status as granted under Article
30(1) of the Constitution. We shall shortly discuss the
constitutional mandate and effect thereof with reference to the
facts of the present case. On the analysis of the above, it is
clear that Section 21 of the DSE Act has to be given its true E
meaning and permitted to operate in the larger field. The
stringent power vested in the appropriate Authority in terms of
the Section 20 cannot be enforced against a minority institution.
It is the consequence flowing from the violations committed by
management of a school that empowers the authorities to take F
over the management of the school within the scope of Section
21 of the DSE Act. Minority Institutions being an exception to
these rules have been given a distinct and definite status under
the Act and the Rules framed thereunder.
G
Discussion on law particularly with reference to the
judgments relied upon by the respective parties.
26. Mr. P.P. Malhotra, the learned Addftional-Solicitor
General of India, with great emphasis, argued that by providing
and enforcing the intent of Rule 64(1)(b) of the DSE Rules, the H
114 SUPREME COURT REPORTS [2010] 8 S.C.R.
A Government is not causing any discrimination. The said DSE
Rule relating to reservation is uniformly applied to all schools.
It was fairly stated that there is no dispute to the fact that the
appellant institution is a linguistic minority institution. It is also
contended that the controversy in the present case is covered
B by Kerala Education Bill, 1957, case (supra) and the appeal
deserves to be dismissed.
27. The direction issued by the Directorate of Education
for furnishing of such an undertaking is contemplated under
C Rule 64(1)(b) and its implementation is in consonance with the
principle of equality before law and also within the ambit of
Article 15 of the Constitution. The right is vested in the
Government to make reservation, as such the grant-in-aid is to
be used for a social object, namely, upliftment of reserved
category, even by providing employment in minority institutions,
D like the appellant. This shall be the true spirit of the preamble
of the Constitution, which requires attainment of the goal, to
secure to all citizens, justice, social, economic and political.
These expressions are of wide magnitude and the authorities
are well within their competence to require minority institutions
E as well to comply with the rule of reservation and file
undertakings as contemplated under Rule 64(1 )(b) of the DSE
Rules. The reliance has primarily been placed upon the
judgment of this Court in the case of Kerala Education Bill,
1957 (supra); T.M.A. Pai Foundation v. State of Karnataka
F [(2002) 8 SCC 481]; Kanya Junior High School, Bal Vidya
Mandir v. U.P. Basic Shiksha Parishad [(2006) 11 SCC 92],
Secy. Malankara Syrian Catholic College v. T. Jose [(2007)
1 SCC 386] and Brahmo Samaj Education Society v. State
of wa. [(2004) 6 sec 224].
G
28. On the contra, the submission made by Mr. K.L. Janjani,
the learned counsel appearing on behalf of the appellant is that
merely because the State is providing grant-in-aid to a minority
institution, it will not clothe the authority with the power to
interfere in the administration and management of a minority
H
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 115
GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.]
institution. Right to appoint a teacher is a part of the A
management and, thus, is free from any restriction. In terms of
Article 30 of the Constitution, the right of minority to establish
and administer educational institutions of their own choice, is
incapable of being interfered with by the authorities and the
language of Rule 64(1)(b), as well as the directives issued by B
the respondents violates the constitutional protection available
to the appellants in accordance with law. It is the contention of
the appellant that the law enunciated in Kera/a Education Bill
case, 1957 (supra) has been watered down suitably by this
Court in T.M.A. Pai's case (supra) and also that the provisions c
of DSE Act are not pari materia, much less, identical to that of
Kera/a Education Bill, 1957 case (supra). There are specific
provisions in the DSE Act and the Rules exempting linguistic
minority institutions and, as such, the State cannot derive any
benefit from the said judgment. The purpose of allowing grant- D
in-aid is to create equality and parity with other institutions. But
this does not mean that the authorities under the pretext of
granting to the minority institutions additional protections
impose conditions which would frustrate the very purpose and
object of minority institution and for non-compliance thereof, E
deny the grant-in-aid. On the simple interpretation of Articles
15, 29 and 30 of the Constitution, it is crystal clear that the
linguistic minority institution has the right to make appointments,
·free of restriction or reservation, as that alone will be in the
interest of the linguistic minority. The learned counsel for the
appellants relied upon the dictum of order in T.M.A. Pai's case F
(supra), in addition to the Ahmedabad St. Xaviers College
Society v. State of Gujarat [AIR 1974 SC 1389); Father
Thomas Shingare v. State of Maharashtra [(2002) 1 SCC
758); T. Devadasan v. Union of India [AIR 1964 SC 179),
Brahmo Samaj Education Society (supra) and Lt. Governor G
of Delhi v. V.K. Sodhi & Ors. [AIR 2007 SC 2885] in support
of his contentions.
29. In the light of the submissions made before us, it will
be pertinent for us to examine how the law has travelled for all H
116 SUPREME COURT REPORTS [2010) 8 S.C.R.
A these years in relation to the right of minority to run their
institutions and the extent to which they can be subjected to
control by the appropriate authorities, in accordance with law.
The seven-Judge Bench of this Court in the case of Kera/a
Education Bill, 1957 (supra) was concerned with
B constitutionality or otherwise of certain clauses of the Kerala
Education Bill, 1957. While, discussing the scope of rights
available to the minority institutions in relation to running of
educational courses, the Court dealt with different aspects of
the matter and discussed the constitutional provisions construed
c in light of the Kerala Education Bill. The Bill had provided
different clauses which the institution was required to satisfy to
receive the grant-in-aid. In para 29 of the judgment, the Court
noticed various clauses of the Kerala Education Bill, the validity
of which was challenged before this Court. The argument
advanced before the Court, inter alia, was also with reference
0
to the Anglo Indian Education Institutions, that they were entitled
to receive the grant under Article 337 of the Constitution and
the provisions of the said Bill, which legitimately come within
the provisions which infringe their right not only under Article
337 of the Constitution, but also violate Article 30(1) of the
E Constitution. In that case they are prevented from effectively
exercising its rights. A Bench noticed the grievances of the
minorities in para 29 of the judgment and discussed the same
in para 31 before arriving at the final conclusion.
F 30. The Court in that case was dealing with the
Presidential Reference, in terms of Article 143 of the
Constitution. While referring to the questions framed for the
opinion of the Court, the Court noticed that the width of power
of control thus sought to be assumed by the State evidently
G appeared to the President to be calculated to raise doubts as
to the constitutional validity of some of the clauses of the said
Bill on the ground of prohibited infringement of some of the
fundamental rights granted to the minority communities by the
Constitution. The Bench in Para 10 noticed the questions which
H are as under:-
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 117
GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.]
(1) "Does sub-clause 5 of clause 3 of the Kerala A
Education Bill read with clause 36 thereof ~r,
any of the provisions of the said sub-clall e
36 thereof or any of the provisions of the said
sub-clause, offend article 14 of the
Constitution in any particulars or to any B
extent?
(2) Do sub-clause (5) of clause (3), sub-clause
(3) of clause 8 and clause 9 to 13 of the
Kerala Education Bill or any provisions
thereof, offend clause 91) of article 30 of the
c
Constitution in any particulars or to any
extent?
(3) Does clause 15 ofthe Kerala Education Bill
or any provisions thereof, offend article 14 of D
the Constitution in any particulars or to any
extent?
(4) Does clause 33 of the Kerala Education Bill,
or any provisions thereof, offend article 226
E
of the Constitution in any particulars or to any
extentr
The answers to question Nos. 1 and 3 :
" .(
"That result, therefore, is that the charge of F
invalidity of the several clauses of the Bill
which fall within the ambit of questions 1 and
3 on the ground of the infraction of Article 14
must stand repelled and our answers to both
the questions 1 and 3 must, therefore, be in G
the negative".
Answer to question No. 2 :-
"Yes,, so far as Anglo Indian education
institutions entitled to grant under Article H
118 SUPREME COURT REPORTS [2010] 8 S.C.R.
A 337 are concerned. (ii) As regards other
minorities not entitled to grant as of right
under any express provision of he
constitution but are in receipt of aid or desire
such aid and also as regards Anglo Indian
B educational institutions in so far as they are ·
receiving aid in excess of what are due to
them under Article 337 clauses 8(3) and 9
to 13 do not offend Article 30(1) but clause
3(5) in so far as it makes such educational
c institutions subject to clauses 14 and 15 do
not offend Article 30(1). (iii) Clause 7 (except
sub clauses (1) and (3) which applies only
to aided schools), clause10 in so far as they
apply to recognized schools to be
established after the said Bill comes into
D
force do not offend Article 30(1) but clause
3(5) in so far as it makes the new schools
established after the commencement of the
Bill subject to clause 20 does offend Article
30(1). n
E
In the said case, the Court held that right of the minorities
to some extent was restricted in the sense that general control
still could be exercised by the authorities concerned, but in
accordance with law. That is how Clause 11 of the Bill, which
F has been very heavily relied upon by the respondents before
us, completely put an embargo on the appointment of teachers
of their choice and the teachers could only be appointed out of
the panel selected by the Public Service Commission. This
clause was held not to be in violation of the Constitution, but
. G clauses 14 and 15, which related to taking over of the
management of an aided school for the conditions stipulated
therein, were held to be unconstitutional and bad. This was in
view of the law stated under the Bill and its scheme that
weighed with the Court to record findings afore-noticed.
H
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 119
GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.]
31. Still another Seven Judge Bench of this Court, in the A
case of the Ahmedabad St. Xavier's College Society (supra)
was, primarily, concerned with the scope of Articles 29 and 30
of the Constitution, relating to the rights of minorities to impart
general education and applicability of the concept of affiliation
to such institutions. Of course, the Court held that there was no B
fundamental right of a minority institution to get affiliation from
a University. When a minority institution applies to a University
to be affiliated, it expresses its choice to participate in the
system of general education and courses of instructions
prescribed by that University, and it agrees to follow the uniform c
courses of study. Therefore, measures which will regulate the
courses of study, the qualifications and appointment of
teachers, the conditions of employment of teachers, the health,
hygiene of students and the other facilities are germane to
affiliation of minority institutions. With regard to grant of an D
appropriate protection of such ::ommunity in terms of Article 30
of the Constitution, the Court held as under:-
"12. The real reason embodied in Article 30 (1) of the
Constitution is the conscience of the nation that the .
minorities, religious as well as linguistic, are not prohibited E
from establishing and administering educational
institutions of their choice for the purpose of giving their
children the best general education to make them complete
men and women of the country. The minorities are given
this protection under Article 30 in order to preserve and F
strengthen the integrity and unity of the country The sphere
of general secular education is intended to develop the
commonness of the boys and girls of our country. This is
in the true spirit of liberty, equality and fraternity through the
medium of education. If religious or linguistic minorities are G
not given protection under Article 30 to establish and
administer educational institutions of their choice, they will
feel isolated and separate. General secular education will
open doors of perception and act as the natural light of
mind for our countrymen to live in the whole. H
120 SUPREME COURT REPORTS [2010) 8 S.C.R.
A xxx xxx xxx xxx xxx
30. Educational institutions are temples of learning. The
virtues of human intelligence are mastered and
harmonized by education. Where there is complete
harmony between the teacher and the taught, where the
8
teacher imparts and the student receives, where there is
compete dedication of the teacher and the taught in
learning, where there is discipline between the teacher and
the taught, where both are worshippers of learning, no
discord or challenge will arise. An educational institution
c runs smoothly when the teacher and the taught are
engaged in the common ideal of pursuit of knowledge. It
is, therefore, manifest that the appointment of teachers is
an important part in educational institutions. The
qualifications and the character of the teachers are really
D important. The minority institutions have the right to
administer institutions. This right implies the obligation and
duty of the minority institutions to render the very best to
the students. In the right of administration, checks and
balances in the shape of regulatory measure are required
E to ensure the appointment of good teachers and their
conditions of service. The right to administer is to be
tempered with regulatory measures to facilitate smooth
administration. The best administration will reveal no trace
or color of minority. A minority institution should shine in
F exemplary eclectism in the administration of the institution.
The best compliment that can be paid to a minority
institution is that it does not rest on or proclaim its minority
character."
G As is evident from the above noticed dictum of the Court
the emphasis had been laid on the right of the minority
institutions to administer institution. Appointment of teacher is
an important part of administration of educational institution and
administrative freedom of the minority in that regard.
H 32. Now we may refer to a judgment of this Court in the
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 121
GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.]
case of Managing Committee, Khalsa Middle School v. A
Mohinder Kaur[(1993) Supp. 4 SCC 26]. In this case, the Court
was concerned with the amendments made in the Rules and
Regulations of the Society. The date of passing of the resolution
or its registration, which would be the effective date while
dealing with the termination of service of a teacher without B
obtaining the approval of the Director of Education, could not
be annulled for violating the provisions of the DSE Act. While
registering the Khalsa Education Society, which was running
a school known as Khalsa Primary School, belonging to a
minorify, it lost its status of minority, which was restored in July, c
1979. The action was initiated during the interregnum period
when the Society was working as non-minority institution, the
Court took the view that as a non-minority institution, it was
required to comply with the conditions of the DSE Act and the
Rules framed thereunder, but once the character of minority D
institution was restored, the provisions will not be attracted. In
this regard, the Court held as under :-
"10 ........... Here we are concerned with the amendment
in the Rules and Regulations of the Society. In the absence
of any requirernent in the Societies Registration Act that E
the alteration in the. Rules and Regulations must be
registered with the Registrar, it cannot be held that
registration of the amendment is a condition precedent for
such an alteration to come into effect. It is, therefore, not
possible to accept the contention of Shri Mehta that the F
amendme.nt which was made in the Rules and Regulations
by resolution dated Jvly 1, 1979 did not come Into effect
till March 13, 1980. when the amended Rules and
Regulations were registered with the Registrar, Firms and
Societies. The said amendment should be treated to have G
come into effect from the date on which the resolution
making the said amendment was passed, i.e. July 1,
1979. As a result of the said amendment in the Rules and
Regulations of the Society, the.· alter~tlons made in the
Rules and Regulations in 1963 were reversed and the H
122 SUPREME COURT REPORTS [2010] 8 S.C.R.
A position as it stood prior to the amendment of 1963 was
restored. Consequently, the school which was a minority
institution till the amendment of the Rules and Regulations
in 1963 and had ceased to be a minority institution as a
result of the amendment in 1963 regained its status as a
B minority institution after July 1, 1979, when the rules and
regulations were amended and the original position was
restored. In view of the restoration of the minority character
of the institution the provisions of the Education Act and
the Education Rules ceased to be applicable to the
c institution after July 1, 1979. The impugned order of
termination order of the services of the respondent was
passed on December 31, 1979, i.e., after the school had
become a minority institution. The said order cannot,
therefore, be held to be invalid on the ground that it was
passed in contravention of Section 8 of the Education Act.
D
The order passed by the Delhi High Court quashing the
said order as well as the disciplinary proceedings cannot,
therefore, be upheld. The respondent was placed under
suspension on August 11, 1972 and continued under
suspension till April 9, 1973 on which date Education Act
E came into force. In other words she was under suspension
at a time when the Education Act was not in force. The
order of suspension cannot be judged on the basis of the
provisions of the Education Act and the Education Rules.
We are, therefore, unable to uphold the direction of the
F High Court quashing her order of suspension."
The aforesaid judgment states principle of law of far
reaching consequences, i.e. an institution which is run by a
minority linguistic or religious would not be controlled exclusively
G by the provisions of the DSE Act and the Rules framed
thereunder, as the grant of approval would tantamount to
interfere in the internal management of a minority institution.
33. Now, we may refer to the case of T.M.A. Pai (supra)
which has been strongly relied upon by learned counsel
H appearing from both the sides before us. In this judgment, the
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 123
GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.]
Court had practically discussed the entire case law on the A
subject and particularly, the case of Kerala Education Bill, 1957
(supra) as well as Ahmedabad St. Xavier's case (supra). It may
be noticed that the law stated by the Seven-Judge Bench in
Kera/a Education Bill, 1957 case (supra), to some extent, has
been diluted. Various aspects of this case, we shall shortly B
proceed to discuss, but let us first examine what the Court has
held and in what context. It is really not necessary for us to get
into detailed factual matrix and all the principles that have been
enunciated by the Eleven-Judge Bench. It will be better for us
to restrict ourselves to the discussion only in relation to the c
question of involvement in the present case. The learned
Additional Solicitor General relied upon paras 72, 73, 107, 136,
138, 141, 144 and 450 of the judgment in support of his
submissions.
34. On the contrary, the learned counsel for the appellants D
submitted that the paragraphs relied upon by the respondents
are the minority view and not the part of the majority judgment.
With this, he placed reliance upon paras 89, 116 and 123 of
the judgment. In order to avoid any ambiguity or confusion, we
. must clarify at the outset that till paragraph 161, it is the majority E
view of the T.M.A. Pai's case (supra) whereafter different
Judge/Judges have expressed their views and given
independent conclusions and answers to the questions framed.
Thus, it will be expected from us and we would only refer to the
decision and finding of the majority view, which is binding on F
the Court.
35. The respondents have placed reliance upon the law
stated by the Bench that any regulation framed in the national
interest must necessarily apply to all educational institutions, G
whether run by majority or the minority. Such a limitation must
be read into Article 30. The rule under Article 30(1) cannot be
such as to override the national interest or to prevent the .
Government from framing regulatiohs in that behalf. It is, of
course, true that Government regulations cannot destroy the
minority charact.3r of the institution or make a right to establish H
124 SUPREME COURT REPORTS [2010] 8 S.C.R.
A and administer a mere illusion, but the right under Article 30 is
not so absolute as to be above the law. The appellant also seek
to derive benefit from the view that the Courts have also held
that the right to administer is not absolute and is subject to
reasonable regulations for the benefit of the institutions as the
B vehicle of education consistent with the national interest. Such
general laws of the land would be also applicable to the minority
institutions as well. There is no reason why regulations or
conditions concerning generally the welfare of the students and
teachers should not be made applicable in order to provide a
c proper academic atmosphere. As such, the provisions do not,
in any way, interfere with the right of administration or
management under Article 30(1). Any law, rule or regulation,
that would put the educational institutions run by the minorities
at a disadvantage, when compared to the institutions run by the
others, will have to be struck down. At the same time, there may
0
not be any reverse discrimination.
36. It was observed in St. Xavier's case (supra), at page
192 of the judgment that the whole object of conferring the right
on minorities under Article 30 is to ensure that there will be
E equality between the majority and the minority. If the minorities
do not have such special protection, they will be denied
equality. The emphasis by the appellants is more on paragraphs
88 to 90 to say that Articles 29 and 30 are a group of articles
relating to cultural and educational rights. Article 29(1) gives the
F right to any section of the citizens having a distinct language,
script or culture of its own, to conserve the same. Article 29(2)
refers to admission to a educational institution established by
anyone, but which is maintained by the State or receives aid
out of State funds. In other words, .State-maintained or aided
G educational institutions, whether established by the Government
or the majority or a minority community cannot deny admission
to a citizen on the ground of religion, race, caste or language.
Article 30(1) states the right of minorities to establish and
administer educational institutions of their choice, as provided
H under that Article. The fundamental freedom is to establish and
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 125
GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.]
to administer educational institutions. It is a right to establish A
and administer institutions to cater the educational needs of the
minorities or sections thereof.
37. Before we really analyze the dictum of this Court in its
various judgments and examine the scope of their application
8
to the facts of the present case, it would be necessary for us
to refer to certain specific paragraphs of the judgment, besides
the above portions which have been relied upon by the learned
counsel appearing for the respective parties. The basic
questions which would arise for consideration with regard to C
the facts of the present case are the extent of the right to
establish, administer and management of institution by the
linguistic minorities, the extent of control or restrictions that can
be imposed by the State and obviously the right of a minority
institution to receive grant-in-aid. In the case of T.M.A. Pai
(supra), the Court was primarily concerned with the ambit and D
scope of grant of admission to the students in various academic
courses in the minority institutions aided or unaided. In that
case, the Court was basically not concerned with the
methodology to be adopted by the minority institutions and the
restrictions that can be imposed by the Government with regard E
to the recruitment of teachers like Rule 64(1 )(b) of the DSE
Rules. So to understand, the impact of the dictum in T.M. Pai's
case (supra), we may usefully refer to certain paragraphs of the
judgment itself.
F
"123. After referring to the earlier cases in relation to the
appointment of teachers, it was noted by Khanna, J., that
the conclusion which followed was that a law which
interfered with a minority's choice of qualified teachers, or
its disciplinary control over teachers and other members G
of the staff of the institution, was void, as it was violative
of Article 30(1 ). While it was permissible for the State and
its educational authorities to prescribe the qualifications
of teachers, it was held that once the teachers possessing
the requisite qualifications were selected by the minorities H
126 SUPREME COURT REPORTS [2010] 8 S.C.R.
A for their educational institutions, the State would have no
right to veto the selection of those teachers. The selection
and appointment of teachers for an educational institution
was regarded as one of the essential ingredients under
Article 30(1 ). The Court's attention was drawn to the fact
B that in Kera/a Education Bill, 1957 case this Court had
opined that clauses 11 and 12 made it obligatory for all
aided schools to select teachers from a panel selected
from each district by the Public Service Commission and
that no teacher of an aided school could be dismissed,
c removed or reduced in rank without the previous sanction
of the authorized officer. At SCR p. 245, Khanna, J.,
'
observed that in cases subsequent to the opinion in Kera/a
Education Bill, 1957 case this Court had held similar
provisions as clause 11 and clause 12 to be violative of
Article 30(1) of the minority institution. He then observed
D
as follows: (SCC p.792, para 109)
''The opinion expressed by this Court in Re Kera/a
Education Bill, 1957 was of an advisory character and
though great weight should be attached to it because of
E its persuasive value, the said opinion cannot override the
opinion subsequently expressed by this Court in contested
cases. It is the law declared by this Court in the
subsequent contested cases which would have a binding
effect. The words 'as at present advised' as well as the
F preceding sentence indicate that the view expressed by
this Court in Re Kera/a Education Bill, 1957 in this respect
was hesitant and tentative and not a final view in the
matter."
124. In Lily Kurian v. Sr. Lewina this Court struck down the
G
power of the Vice-Chancellor to veto the decision of the
management to impose a penalty on a teacher. It was held
that the power of the Vice-Chancellor, while hearing an
appeal against the imposition of the penalty, was
uncanalized and unguided. In Chri~.tian Medical College
H
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 127
GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.]
Hospital Employees' Union v. Christian Medical College A
Ve/fore Assn. this Court upheld the application of industrial
law to minority colleges, and it was held that providing a
remedy against unfair dismissals would not infringe Article
30. In Gandhi Faiz-e-am College v. University of Agra a
law which sought to regulate the working of minority B
institutions by providing that a broad-based management
committee could be reconstituted by including therein the
Principal and the seniormost teacher, was valid and not
violative of the right under Article 30(1) of the Constitution.
In All Saints High School v. Govt. of A.P.. a regulation c
providing that no teacher would be dismissed, removed
or reduced in rank, or terminated otherwise except with the
prior approval of the competent authority, was held to be
invalid, as it sought to confer an unqualified power upon
the competent authority. In Frank Anthony Public School D
Employees' Assn. v. Union of India the regulation
providing for prior approval for dismissal was held to be
invalid, while the provision for an appeal against the order
of dismissal by an employee to a tribunal was upheld. The
regulation requiring prior approval before suspending an
E
employee was held to be valid, but the provision, which
exempted unaided minority schools from the regulation that
equated the pay and other benefits of employees of
recognized schools with those in schools run by the
authority, was held to be invalid and violative of the equality
clause. It was held by this Court that the regulations F
regarding pay and allowances for teachers and staff would
not violate Article 30.
xxx xxx xxx xxx xxx
G
135. We agree with the contention of the learned Solicitor-
General that the Constitution in Part Ill does not contain or
give any absolute right. All rights conferred in Part 111 of the
Constitution are subject to at least other provisions of the
said Part. It is difficult to comprehend that the framers of H
128 SUPREME COURT REPORTS [2010] 8 S.C.R.
A the Constitution would have given such an absolute right
to the religious or linguistic minorities, which would enable
them to establish and administer educational institutions
in a manner so as to be in conflict with the other Parts of
the Constitution. We find it difficult to accept that in the
B establishment and administration of educational
institutions by the religious and linguistic minorities, no law
of the land, even the Constitution, is to apply to them.
136. Decisions of this Court have held that the right to
administer does not include the right to maladminister. It
c has also been held that the right to administer is not
absolute, but must be subject to reasonable regulations for
the benefit of the institutions as the vehicle of education,
consistent with national interest. General laws of the land
applicable to all persons have been held to be applicable
D to the minority institutions also - for example, laws relating
to taxation, sanitation, social welfare, economic regulation,
public order and morality.
137. It follows from the aforesaid decisions that even
E though the words of Article 30(1) are unqualified, this Court
has held that at least certain other laws of the land
pertaining to health, morality and standards of education
apply. The right under Article 30(1) has, therefore, not been
held to be absolute or above other provisions of the law,
F and we reiterate the same. By the same analogy, there is
no reason why regulations or conditions concerning,
generally, the welfare of students and teachers should not
be made applicable in order to provide a proper academic
atmosphere, as such provisions do not in any way interfere
with the right of administration or management under
G
Article 30(1 ).
)()()( xxx xxx xxx xxx
\
141. The grant of aid is not a constitutional imperative.
H Article 337 only gives the right to assistance by way of
SINDHI EDUCATION SOCIETY v. CHIEF SECRETARY, 129
GOVT. OF NCT OF DELHI [SWATANTER KUMAR, J.]
grant to the Anglo-Indian community for a specified period A
of time. If no aid is granted to anyone, Article 30(1) would
not justify a demand for aid, and it cannot be said that the
absence of aid makes the right under Article 30(1) illusory.
The founding fathers have not incorporated the right to
grants in Article 30, whereas they have done so under B
Article 337; what, then, is the meaning, scope and effect
of Article 30(2)? Article 30(2) only means what it states
viz.· that a minority institution shall not be discriminated
against where aid to educational institutions is granted. In
other words the State cannot, when it chooses to grant aid c
to educational institutions, deny aid to a religious or
linguistic minority institution only on the ground that the
management of that institution is with the minority. We
would, however, like to clarify that if an abject surrender of -
the right to management is made a condition of aid, the D
denial of aid would be violative of Article 30(2). However,
conditions of aid that do not involve a surrender of the
substantial right of management would not be inconsistent
with constitutional guarantees, even if they indirectly
impinge upon some facet of administration. If, however, E
aid were denied on the ground that the educational
institution is under the management of a minority, then such
a denial would be completely invalid.
142. The implication of Article 30(2) is also that it
recognizes that the minority nature of the institution should F
continue, notwithstanding the grant of aid. In other words,
when a grant is given to all institutions for imparting secular
education, a minority institution is also entitled to receive
it, subject to the fulfilment of the requisite criteria, and the
State gives the grant knowing that a linguistic or minority G
educational institution will also receive the same. Of course,
the State cannot be compelled to grant aid, but the receipt
of aid cannot be a reason for altering the nature or
character of the recipient educational institution.
H
130 SUPREME COURT REPORTS [2010) 8 S.C.R.
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
H 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 A
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, B
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
1:12 SUPREME COURT REPORTS (2010] 8 S.C.R.
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
E that the institutions covered by Article 30 are outside the
injunction of Article 29(2) cannot be accepted."
38. The Court then proceeded to discuss the concept of
equality and secularism and noticed that for a healthy family, it
F 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 D
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 E
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, F
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 G
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
134 SUPREME COURT REPORTS [2010] 8 S.C.R.
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
F 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
G
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 C
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 D
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 E
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 F
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 G
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
136 SUPREME COURT REPORTS [2010) 8 S.C.R.
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
D 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
E 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 B
facilities does not, however, amount to profiteering."
39. 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 C
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
40. 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
138 SUPREME COURT REPORTS [2010] 8 S.C.R.
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
F 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
G
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 B
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 C
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 D
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 E
due notice of the declarations made in the T. M.A. Pai's case
(supra) and to take appropriate steps in that regard.
41. 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 F
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 G
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
140 SUPREME COURT REPORTS [2010] 8 S.C.R.
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
D 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
E 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
F 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
G 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 C
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 D
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 E
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
142 SUPREME COURT REPORTS [2010] 8 S.C.R.
A 42. 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
H 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 A
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 B
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 D
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 E
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 F
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
144 SUPREME COURT REPORTS [201 O] 8 S.C.R.
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
E 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
F 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
G the privilege of protection under Article 30( 1).
43. 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
H 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
146 SUPREME COURT REPORTS [2010) 8 S.C.R.
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
F
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
G
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 E
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 F
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 G
reference to the legal principles above enunciated
44. 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
148 SUPREME COURT REPORTS [2010] 8 S.C.R.
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.
45. 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
46. 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
47. 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
150 SUPREME COURT REPORTS (2010) 8 S.C.R.
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."
48. 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
H 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 A
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 B
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
49. 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 D
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 E
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 F
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 G
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
152 SUPREME COURT REPORTS [2010] 8 S.C.R.
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
B 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.
50. Article 15(5) of the Constitution excludes the minority
C 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
D 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
F 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
G 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
H 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 A
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
51. 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 F
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 G
established or they are stated to be satisfied, it will not be
permissible to term that society, organization or body as a
'State'.
52. There is no doubt, that there may be minority
institutions which are receiving grant-in-aid from the H
154 SUPREME COURT REPORTS (2010] 8 S.C.R.
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
E 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
F 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
G 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
H 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 A
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 F
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 G
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
156 SUPREME COURT REPORTS [2010] 8 S.C.R.
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
158 SUPREME COURT REPORTS [2010] 8 S.C.R.
A 53. 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.
G 54. 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
H 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 A
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).
55. The right under clause (1) of Article 30 is not absolute E
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, F
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 G
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
160 SUPREME COURT REPORTS [2010] 8 S.C.R.
A 56. 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
C 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
D 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
E 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
F 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 D
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 E
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 F
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 G
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
162 SUPREME COURT REPORTS [2010] 8 S.C.R.
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.
57. 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
D 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
E 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
F 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
H 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 A
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
58. 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 E
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 F
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 G
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
164 SUPREME COURT REPORTS (2010) 8 S.C.R.
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.
59. To appoint a teacher is part of the regular
administration and management of the School. Of course, what
C 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
D 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
E 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,
F 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
G 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.
60. 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 E
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 F
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 G
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
166 SUPREME COURT REPORTS [2010) 8 S.C.R.
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.
61. 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
E 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
F 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
G 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 A
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 B
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.
62. 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 E
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 F
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 G
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
168 SUPREME COURT REPORTS [2010] 8 S.C.R.
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
D 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
E 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
F recorded in this judgment, we are unable to persuade ourselves
to accept the view of the Division Bench in the Judgment under
appeal.
63. A linguistic minority has constitution and character of
G 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
H 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 A
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 B
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 E
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 F
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
64. 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
170 SUPREME COURT REPORTS [2010) 8 S.C.R.
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.
65. To frame policy is the domain of the Government. If,
as a matter of policy, the Government has decided to
E 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
F 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
66. 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
172 SUPREME COURT REPORTS [2010) 8 S.C.R.
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
B 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.
67. Besides that, State actions should be actio quaelibet
C 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
D 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
68. 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.
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