Holding

Sections 8, 10, 11 and 12 of the West Bengal Madrasah Service Commission Act, 2008 are constitutional and do not infringe the right guaranteed under Article 30(1).

Summary

The case concerned the constitutionality of sections 8, 10, 11 and 12 of the West Bengal Madrasah Service Commission Act, 2008, which mandated that a state‑constituted commission select and recommend teachers for aided minority madrasahs. The petitioners, a managing committee of a recognised madrasah, argued that the provisions infringed the minority’s right under Article 30(1) to appoint its own teachers. The Supreme Court examined the scope of the right to administer educational institutions, the permissible extent of state regulation, and the test of reasonableness laid down in earlier cases such as T.M.A. Pai Foundation. It held that the provisions were designed to ensure excellence in education, allowed the commission to correct errors, and did not destroy the minority character of the institutions. Consequently, the Act’s provisions were held valid and constitutional, and the earlier High Court rulings declaring them ultra‑vires were set aside.

Issues considered

The validity of sections 8, 10, 11 and 12 of the West Bengal Madrasah Service Commission Act, 2008 under the Constitution.
Whether these provisions violate the minority institution’s right under Article 30(1) to appoint its own teachers.
Whether the commission’s recommendations are binding on the managing committees of aided madrasahs.
The extent to which state regulation of teacher appointments in minority institutions is permissible.

Legislation cited

Subjects

Article 30(1)minority educational institutionteacher appointmentWest Bengal Madrasah Service Commissionconstitutional validityregulation of educationexcellence in educationaided institutions

Judgment

[2020] 1 S.C.R. 185 185

SK. MD. RAFIQUE A
v.
MANAGING COMMITTEE, CONTAI RAHAMANIA HIGH
MADRASAH AND OTHERS
(Civil Appeal No. 5808 of 2017 etc.) B
JANUARY 6, 2020
[ARUN MISHRA AND UDAY UMESH LALIT, JJ.]
Constitution of India:
Art. 30(1) – Aided ‘ Madrasah’ (a minority institution) – C
Process of appointment of teachers in – Taken over and entrusted
to Commission constituted under West Bengal Madrasah Service
Commission Act, 2008 – Validity of s. 8, 10, 11 and 12 of the Act
challenged, alleging that the same transgressed upon the rights of
a minority institution of choosing its own teachers – Single Judge
D
of the High Court held that ss. 8, 10, 11 and 12 of the Act were ultra
vires – The judgment was upheld by Division Bench of High Court
– Appeal to Supreme Court – Held: The essence of Art. 30(1) is to
ensure equal treatment between majority and minority institutions –
A regulation framed in the national interest must apply to all
institutions regardless of they being minority or majority – E
Regulation, if seeks to ensure the standards of excellence of the
institutions while preserving the right of the minorities, is permissible
– The Act has been specially designed for Madrasahs and Madrasah
Education system in the State – Legislature has taken care that
composition of the Commission would ensure compatibility of the
F
teachers who would be selected to impart education in Madrasah
education system – The Act has also provided that Managing
Committee of the Madrasah can point out error in appointment made
by the Commission and that the Madrasah has the right to refuse
the appointment of a candidate recommended by the Commission –
Thus the Act seeks to achieve ‘excellence’ in education and also G
seeks to promote interest of the minority institution – Therefore, the
provisions of the Act, cannot be said to be transgressing the rights
of the minority educational institutions – Sections 8, 10, 11 and 12
of the Act are valid and constitutional – Hence, all the nominations
H
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186 SUPREME COURT REPORTS [2020] 1 S.C.R.

A of the teachers made under the Act are valid and operative – West
Bengal Madrasah Service Commission Act, 2008 – ss. 8, 10, 11
and 12 – West Bengal Madrasah Service Commission Recruitment
(Selection and Recommendation of Persons for Appointment and
Transfer to the Posts of Teaching and Non-Teaching Staff) Rules,
2010 – r. 8.
B
Disposing of the appeal, the Court
HELD : 1. Out of five incidents which constitute “the right
to establish and administer” an educational institution as noted
in *TMA Pai Foundation case, the right to admit students has not
C been considered to be an absolute and an unqualified right. The
decision in **P.A. Inamdar case shows that in professional
educational institutions or those imparting higher education, merit
based selection has been taken to be in the interest of the nation
and subserving and strengthening the national welfare. Selection
of meritorious students has been accepted to be in the national
D interest. A minority institution cannot in the name of right under
Article 30(1) of the Constitution, disregard merit or merit-based
selection of students as regards professional and higher
education. The right to take disciplinary action against the staff
has also not been accepted to be an unqualified right. *TMA Pai
E Foundation case itself lays down that even in an unaided minority
educational institution, a mechanism must be evolved and
appropriate Tribunal must be constituted to consider the
grievances and till then the Tribunals could be presided over by
a judicial officer of the rank of a District Judge. Going by the
decision *TMA Pai Foundation case so long as the principles laid
F down therein are satisfied, it is permissible if any regulations
seek to ensure the standard of excellence of the institutions while
preserving the right of the minorities to establish and administer
their educational institutions. [Para 45] [300-D-H; 301-A]
2. When it comes to the right to appoint teachers, in terms
G of law laid down in *TMA Pai Foundation case, a regulation framed
in the national interest must necessarily apply to all institutions
regardless whether they are run by majority or minority as the
essence of Article 30(1) of the Constitution is to ensure equal

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treatment between the majority and minority institutions. An A
objection can certainly be raised if an unfavourable treatment is
meted out to an educational institution established and
administered by minority. But if ensuring of excellence in
educational institutions is the underlying principle behind a
regulatory regime and the mechanism of selection of teachers is
B
so designed to achieve excellence in institutions, the matter may
stand on a completely different footing. [Para 46] [301-B-C]
3. The test accepted in *TMA Pai Foundation case, and
the balance between two objectives can well be considered in
the context of two categories of institutions; one imparting
education which is directly aimed at or dealing with preservation C
and protection of the heritage, culture, script and special
characteristics of a religious or a linguistic minority; while the
second category of institutions could be those which are imparting
what is commonly known as secular education. When it comes
to the institutions in the former category, the teachers who believe D
in the religious ideology or in the special characteristics of the
concerned minority would alone be able to imbibe in the students
admitted in such educational institutions, what the minorities
would like to preserve, profess and propagate. But, if the subjects
in the curriculum are purely secular in character, that, is to say,
subjects like Arithmetic, Algebra, Physics, Chemistry or E
Geography, the intent must be to impart education availing the
best possible teachers. In the first category, maximum latitude
may be given to the managements of the concerned minority
institutions as they would normally be considered to be the best
judges of what would help them in protecting and preserving the F
heritage, culture, script or such special features or characteristics
of the concerned minorities. However, when it comes to the
second category of institutions, the governing criteria must be to
see to it that the most conducive atmosphere is put in place where
the institution achieves excellence and imparts best possible
education. [Para 47] [301-D-H] G

4. Regulations which will serve the interest of the students
so also regulations which will serve the interest of the teachers

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188 SUPREME COURT REPORTS [2020] 1 S.C.R.

A are of paramount importance in good administration; that
regulations in the interest of efficiency of teachers are necessary
for preserving harmony amongst the institutions; and that the
appointment of teachers is an important part in educational
institutions. It is quite natural that qualitatively better teachers
will ensure imparting of education of the highest standard and
B
will help in achieving excellence. The excellence of the instruction
provided by an institution would depend directly on the excellence
of the teaching staff and would in turn depend inter alia on the
quality of teachers. [Para 48] [302-A-C]
Ahmedabad St. Xavier’s College Society and Another v.
C State of Gujarat and Another (1974) 1 SCC 717 : [1975]
1 SCR 173 ; Frank Anthony Public School Employees’
Assoication v. Union of India and others (1986) 4 SCC
707 : [1987] 1 SCR 238 – followed.
5. Thus, if the intent is to achieve excellence in education,
D would it be enough if the concerned educational institutions were
to employ teachers with minimum requisite qualifications in the
name of exercise of Right under Article 30 of the Constitution,
while better qualified teachers are available to impart education
in the second category of institutions. For example, if the
E qualifying percentile index for a teacher to be appointed in an
educational institution, considering his educational qualifications,
experience and research, is required to be 50, and if teachers
possessing qualifications far greater and higher than this basic
index are available, will it be proper exercise for a minority
educational institution to select teachers with lower index
F disregarding those who are better qualified? Will that subserve
pursuit of excellence in education? One can understand if under
the regulatory regime candidates who are otherwise less qualified
are being nominated in the minority educational institution and
the minority educational institution is forced to accept such less
G meritorious candidates in preference to better qualified
candidates. In such cases, the minority educational institution
can certainly be within its rights to agitate the issue and claim a
right to choose better teachers. But if the candidates who are

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SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI 189
RAHAMANIA HIGH MADRASAH

selected and nominated under the regulatory regime to impart A
education which is purely secular in character, are better qualified,
would the minority institution be within its rights to reject such
nomination only in the name of exercise of a right of choice? The
choice so exercised would not be in pursuit of excellence. Can
such choice then be accepted? If the right u/Art. 30 is taken to
B
be absolute and unqualified, then certainly such choice must be
recognised and accepted. But, if the right has not been accepted
to be absolute and unqualified and the national interest must
always permeate and apply, the excellence and merit must be the
governing criteria. Any departure from the concept of merit and
excellence would not make a minority educational institution an C
effective vehicle to achieve what has been contemplated in various
decisions of this Court. Further, if merit is not the sole and
governing criteria, the minority institutions may lag behind the
non-minority institutions rather than keep in step with them.
[Para 49] [302-D-H; 303-A-B]
D
6. If the minority institution has a better candidate available
than the one nominated under a regulatory regime, the institution
would certainly be within its rights to reject the nomination made
by the authorities but if the person nominated for imparting
education is otherwise better qualified and suitable, any rejection
of such nomination by the minority institution would never help E
such institution in achieving excellence and as such, any such
rejection would not be within the true scope of the Right protected
under Article 30(1) of the Constitution. [Para 50] [303-E-F]
7. In terms of Section 4 of the West Bengal Madrasah
Service Commission Act, the Commission is to consist of a F
Chairman and four Members. The Chairman of the Commission
has to be an eminent educationist having profound knowledge in
Islamic Culture and must be well versed in education with
teaching experience inter alia as a teacher of a University or as a
Principal of a college, for a period of not less than twelve years. G
It is true that the latter part of Section 4(ii) speaks of an officer of
the State Government not below the rank of Joint Secretary who
could also be appointed as the Chairman of the Commission.
Considering the nature of duties that the Chairman is to

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190 SUPREME COURT REPORTS [2020] 1 S.C.R.

A discharge, even an officer of the State Government has to be a
person with profound knowledge in Islamic Culture. Apart from
the Chairman, there are four Members who are to be appointed
in terms of Section 4(iii) of the Commission Act. Out of these
four Members, one has to be an eminent educationist having
profound knowledge in Islamic Theology and Culture, while the
B
other two Members must have teaching experience inter alia as
a teacher of a University, or a Principal of a College for a period
of not less than ten years. The fourth member could be a non-
educationist, but he must have held the position of eminence in
public life or in Legal or Administrative Service. Predominant
C composition of the Commission is thus of educationists and two
of them have to be persons with profound knowledge in Islamic
Culture and Islamic Theology. [Para 52] [303-G-H; 304-A-D]
8. The provisions of the Commission Act are thus specially
designed for Madrasahs and Madrasah Education System in the
D State. Rule 8 of the West Bengal Madrasah Service Commission
Recruitment (Selection and Recommendation of Persons for
Appointment and Transfer to the Posts of Teaching and Non-
Teaching Staff) Rules, 2010 stipulates fair and transparent process
of merit based selection and the statutory mechanism would
ensure that only those teachers would be selected who would be
E best suited to impart education in Madrasah Education System.
The State Legislature has taken care to see that the composition
of the Commission would ensure compatability of the teachers
who would be selected to impart education in Madrasah Education
System, which is also emphasized in the Statement of Objects
F and Reasons. [Para 52] [304-D-F]
9. It is true that the recommendations or nominations of
teachers made by the Commission are otherwise binding on the
Managing Committees of concerned Madrasahs, but, in terms of
second proviso to Section 10 of the Commission Act, if there be
G any error, it is open to the Managing Committee of the concerned
Madrasah to bring it to the notice of the Commission for removal
of such error. The concept of ‘error’ as contemplated must also
include cases where the concerned Madrasah could appoint a

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SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI 191
RAHAMANIA HIGH MADRASAH

better qualified teacher than the one nominated by the A
Commission. If any such error is pointed out, the Commission
will certainly have to rectify and remove the error. The further
protection is afforded by Section 12 of the Commission Act, under
which the concerned Madrasah could be within its rights to refuse
to issue appointment letter to the candidate recommended by
B
the Commission if any better qualified candidate is otherwise
available with the managing committee of the concerned
Madrasah. Such refusal may also come within the expression
‘any reasonable ground’ as contemplated in Section 12(i) of the
Act. The legislature has thus taken due care that the interest of
a minority institution will always be taken care of by ensuring C
that i) in normal circumstances, the best qualified and suitable
candidates will be nominated by the Commission; ii) and in case
there be any error on part of the Commission, the concerned
Managing Committee could not only point out the error which
would then be rectified by the Commission but the Managing
D
Committee may also be within its rights in terms of Section 12(i)
to refuse the nomination on a reasonable ground. [Para 53]
[304-F-H; 305-A-C]
10. The regime put in place by the State legislature thus
ensures that the Commission comprising of experts in the field
would screen the talent all across the State; will adopt a fair E
selection procedure and select the best available talent purely
on merit basis; and even while nominating, the interest of the
minority institution will also be given due weightage and taken
care of. The statutory provisions thus seek to achieve ‘excellence’
in education and also seek to promote the interest of the minority F
institutions. The provisions satisfy the test as culled out in the
decision of this Court in *TMA Pai Foundation case. [Para 54]
[305-D]
11. Going by the principles laid down in the decision in
*TMA Pai Foundation case, the concerned provisions cannot, G
therefore, be said to be transgressing the rights of the minority
institutions. The selection of the teachers and their nomination
by the Commission constituted under the provisions of the
Commission Act would satisfy the national interest as well as the
interest of the minority educational institutions and said provisions
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192 SUPREME COURT REPORTS [2020] 1 S.C.R.

A are not violative of the rights of the minority educational
institutions. Therefore, sections 8, 10, 11 and 12 of the
Commission Act are valid and constitutional. [Paras 55 and 57]
[305-E-F; 306-E]
12. All nominations made by the Commission in pursuance
B of the provisions of the Commission Act are valid and operative.
However, if after the disposal of the matters by the High Court
any appointments are made by the concerned Madarshas, such
appointments of teachers shall be deemed to be valid for all
purposes. But the Commission shall hereafter be competent to
select and nominate teachers to various Madarshas in accordance
C with the provisions of the Commission Act and the Rules framed
thereunder. [Para 58] [306-F-G]
*TMA Pai Foundation and others v. State of Karnataka
and others (2002) 8 SCC 481 : [2002] 3 Suppl. SCR
587 ; Re: The Kerala Education Bill 1957 [1959] SCR
D 995 ; Lily Kurian v. Sr. Lewina and Others (1979) 2
SCC 124 : [1979] 1 SCR 820; St. Stephen’s College v.
University of Delhi (1992) 1 SCC 558 : [1991] 3 Suppl.
SCR 121;**P.A.Inamdar and others v. State of
Maharashtra and others (2005) 6 SCC 537 : [2005]
E 2 Suppl. SCR 603 – followed.
The Gandhi Faiz-e-am College, Shahjahanpur v.
University of Agra and Another (1975) 2 SCC 283
– relied on.
Sindhi Education Society and another v. Chief Secretary,
F Government of NCT of Delhi and others (2010) 8 SCC
49 : [2010] 8 SCR 81 ; Chandana Das (Malakar) v.
State of West Bengal and others (2015) 12 SCC 140 ;
Brahmo Samaj Education Society v. State of West Bengal
(2004) 6 SCC 224 : [2204] 2 Suppl. SCR 214
G – distinguished.
State of Kerala, etc v. Very Rev. Mother Provincial, etc
(1970) 2 SCC 417 : [1971] 1 SCR 734 ; Secretary,
Malankara Syrian Catholic v. T. Jose and others (2007)
1 SCC 386 : [2006] 9 Suppl. SCR 644 ; Rev. Sidhajbhai
Sabhai and Others v. State of Bombay and Another
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SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI 193
RAHAMANIA HIGH MADRASAH

[1963] 3 SCR 837 ; Rev. Father W. Proost and Others. A
v. the State of Bihar and Others AIR 1969 SC 465 ;
[1969] 2 SCR 73 ; D.A.V. College, etc. v. State of Punjab
and Others [1971] Suppl. SCR 688 ; All Saints High
School, Hyderabad and Others v. Government of
Andhra Pradesh and Others (1980) 2 SCC 478 : [1980]
B
2 SCR 924 ; Bihar State Madarasa Education Board,
Patna v. Madarasa Hanfia Arabic College, Jamalia and
others (1990) 1 SCC 428 : [1989] 2 Suppl. SCR 399 ;
Board of Secondary Education and Teachers Training
v. Jt. Director of Public Instructions, Sagar and others
(1998) 8 SCC 555 ; N. Ammad v. Manager, Emjay High C
School and others (1998) 6 SCC 674 : [1998] 1 Suppl.
SCR 453 ; Kanya Junior High School, Bal Vidya
Mandir, Etah,U.P. v. U.P. Basic Shiksha Parishad,
Allahabd, U.P. and others (2006) 11 SCC 92 : [2006]
4 Suppl. SCR 813 – referred to.
D
Case Law Reference
[1971] 1 SCR 734 referred to Para 13
[1975] 1 SCR 173 followed Para 13
[2006] 9 Suppl. SCR 644 referred to Para 13.1 E
[2010] 8 SCR 81 distinguished Para 13.1
[2002] 3 Suppl. SCR 587 followed Para 16
[1959] SCR 995 followed Para 17
[1963] 3 SCR 837 referred to Para 18 F
[1969] 2 SCR 73 referred to Para 19
[1971] Suppl. SCR 688 referred to Para 21
(1975) 2 SCC 283 relied on Para 23
[1979] 1 SCR 820 followed Para 24 G
[1980] 2 SCR 924 referred to Para 25
[1987] 1 SCR 238 followed Para 26
[1989] 2 Suppl. SCR 399 referred to Para 27
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194 SUPREME COURT REPORTS [2020] 1 S.C.R.

A [1991] 3 Suppl. SCR 121 followed Para 28
(1998) 8 SCC 555 referred to Para 29.1
[1998] 1 Suppl. SCR 453 referred to Para 29.2
[2004] 2 Suppl. SCR 214 referred to Para 32
B [2005] 2 Suppl. SCR 603 followed Para 33
[2006] 4 Suppl. SCR 813 distinguished Para 56
[2010] 8 SCR 81 distinguished Para 56
(2015) 12 SCC 140 distinguished Para 37
C
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5808
of 2017.
From the Judgment and Order dated 09.12.2015 of the High Court
at Calcutta in A.S.T. No. 192 of 2014.
D With
Civil Appeal Nos. 6098, 5809, 5826, 5817, 5814 of 2017, Contempt
Petition (C) Nos. 583, 846 of 2016, & Contempt Petition (C) Nos. 670,
669, 828 of 2017 in S.L.P.(C) No. 6661 of 2016 and Contempt Petition
(C) Nos. 1509, 1798 of 2017 & Contempt Petition (C) Nos. 937, 938,
E 1219, 1274, 1669, 1921-1922 of 2018 in C.A. No. 5808 of 2017, W.P.(C)
No. 723 of 2016, W.P. (C) No. 629 of 2017.
Jayant Bhushan, Mohan Parasaran, Siddharth Luthra, Y. S. Narula,
Salman Khurshid, Kalyan Bandopadhyay, Jaideep Gupta, Huzefa Ahmadi,
Sr. Advs., Zoheb Hossain, Mrs. Adeeba Mujahid, Ashwin Kumar D.S.,
F Ms. Aditi Dani, Ketan Paul, Shahan Ulla, Vivek Gurnani, Ms. Sonal
Mashankar, Ali Choudhary, Azeem Kalebudde, Atarup Banerjee, Abu
Sohel, Ms. Azra Rahman, Arpit Shukla, Anindo Mukherjee, Chanchal
Kumar Ganguli, Mrs. Sarla Chandra, Khairul Alam, Rameshwar Prasad
Goyal, Pijush K. Roy, Mrs. Kakali Roy, Rajan K. Chourasia, Siddharth
Dave, M. R. Shamshad, Aditya Samaddar, Ms. Sarah Haque, Subhashish
G Bhowmick, Adv. Ms. G. Goyal, Adv. Mr. Dipak Kumar Jena, Adv. Ms.
Minakshi Ghosh, Jalabhar Das, Kumar Shourish, Abhijit Sengupta,
Dibyadyuti Banerjee, Kumar Neeraj, B. P. Yadav, Ranjan Mukherjee,
Kunal Chatterji, Ms. Anita Kanungo, Dipak Kumar Jena, Advs. for the
appearing parties.
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SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI 195
RAHAMANIA HIGH MADRASAH

The Judgment of the Court was delivered by A
UDAY UMESH LALIT, J.
1. These appeals arise out of the Judgment and Order dated
09.12.2015 passed by the Division Bench of the High Court 1 dismissing
A.S.T. No.192 of 2014 and other connected matters and thereby affirming
the decision of the Single Judge of the High Court passed on 12.03.2014 B
in Writ Petition No.20650 (W) of 2013 which in turn had found Sections
8, 10, 11 and 12 of the West Bengal Madrasah Service Commission Act,
2008 (“the Commission Act”, for short) to be ultra vires.
2. The aforementioned Writ Petition No.20650(W) of 2013 was
filed by the Managing Committee of Contai Rahmania High Madrasah C
challenging validity of Sections 8, 10, 11 and 12 of the Commission Act
submitting, inter alia, that by virtue of the provisions of the Commission
Act, the process of appointment of teachers in an aided Madrasah, which
was recognised as a minority institution, was taken over and entrusted
to the Commission appointed under Section 4 of the Commission Act; D
and that the Commission was empowered under the provisions of the
Commission Act to make recommendations which would be binding on
the Managing Committee of an aided Madrasah. It was submitted that
the provisions of the Commission Act transgressed upon the rights of a
minority institution of choosing its own teachers. The submission was
accepted by the Single Judge of the High Court and the Writ Petition E
was allowed. Aggrieved, some of the candidates, including the Appellant
herein, whose names were recommended by the Commission to be
appointed as teachers in aided Madrasahs, filed appeal being A.S.T. No.
192 of 2014 before the Division Bench of the High Court. C.A.N. No.
3078 of 2014 was filed by the Secretary, West Bengal Madrasah F
Service Commission while M.A.T. No. 473 of 2014 was filed by State
of West Bengal challenging the very same decision of the Single Judge.
All the appeals were dismissed by the Division Bench while affirming
the view taken by the Single Judge.
3. The decisions of the Single Judge and the Division Bench have G
given rise to the present set of Appeals wherein number of Intervention
Applications have also been filed.

1
The High Court of Judicature at Calcutta
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196 SUPREME COURT REPORTS [2020] 1 S.C.R.

A STATUTORY PROVISIONS
4. The West Bengal Board of Madrasah Education Act, 1994
was enacted to establish a Board of Madrasah Education in West Bengal
and to provide for matters connected therewith or incidental thereto.
The expressions “Madrasah”, “Madrasah Education”, “Managing
B Committee” and “Senior Madrasah” are defined in Sections 2(f), (g),
(h) and (p) as under:-
“2(f) “Madrasah” means an educational institution imparting
instruction in Madrasah Education;
(g) “Madrasah Education” means a system of education in which
C instruction is imparted in Arabic, Islamic history and culture, and
theology, and includes-
(i) High Madrasah Education System which, in addition to
covering Arabic language and Islamic history and culture,
imparts general education including primary education with a
D view to qualifying students for admission to a certificate,
diploma or degree course instituted by a University or by a
Government or by any statutory authority, and includes such
other type of education as the State Government may, in
consultation with the Board, specify;
E (ii) Senior Madrasah Education System which imparts
instruction in Arabic language and literature, Islamic theology,
history, culture and jurisprudence and some general education
with a view to qualifying students for a certificate, diploma or
degree of the Board or a University or a Government or any
F other statutory authority;
(h) “Managing Committee” used in reference to an Institution
means the person or the body of persons for the time being
entrusted with the management of the affairs of the Institution;
………
G (p) “Senior Madrasah” means a Madrasah where the Senior
Madrasah Education System is followed.”
4.1 Chapter 2 of the Act inter alia, deals with establishment and
composition of the Board while Section 18 deals with constitution of
various Committees. Section 19 then deals with functions of the
H Committees as under:-
SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI 197
RAHAMANIA HIGH MADRASAH [UDAY UMESH LALIT, J.]

“19. Functions of Committee.-(1) It shall be the duty of the A
Recognition Committee to advise the Board on all matters
concerning recognition of Institutions.
(2) It shall be the duty of the Syllabus Committee to advise the
Board on all matters relating to the syllabus, courses of studies to
be followed and the books to be studied in recognised Institutions B
and for examinations instituted by the Board.
(3) It shall be the duty of the Examinations Committee to advise
the Board on –
(a) matters relating to selection of paper setters, moderators,
tabulators, examiners, invigilators, supervisors and others to C
be employed in connection with examinations instituted by the
Board and the rates of remuneration to be paid to them;
(b) the fees to be paid by candidates for such examinations;
and
D
(c) any other matter relating to such examinations which may
be referred to it by the Board for advice
(4) It shall be the duty of the Finance Committee to prepare the
budget of the Board and to advise the Board on such matters
relating to finance as may be referred to it by the Board for advice.
E
(5) (a) All appeals by the members of the teaching and non-
teaching staff against the decisions of the Managing Committees
of the recognised Institutions shall be heard and decided by the
Appeal Committee.
(b) The decisions of the Appeal Committee under clause (a) F
shall be final and no suit or proceeding shall lie in any Civil or
Criminal Court in respect of any matter which has been or
may be referred to, or has been decided by, the Appeal
Committee.
(c) Any other Committee or Committees that may be constituted G
under clause (f) of sub-section (1) of section 18 shall have
such powers or functions as the Board may confer or impose
on such Committee or Committees.”
4.2 Section 20 deals with functions of the Board as under:-
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198 SUPREME COURT REPORTS [2020] 1 S.C.R.

A 20. Functions of the Board. – (1) It shall be the duty of the
Board to advise the State Government on all matters relating to
Madrasah Education referred to it by the State Government.
(2) Subject to any general or special orders of the State
government, the provisions of this Act and any rules made
B thereunder, the Board shall have generally the power to direct,
supervise and control Madrasah Education and in particular, the
power-
(a) to grant or refuse recognition to Madrasah and to withdraw
such recognition if it thinks fit and necessary, after considering
C the recommendations of the Recognition Committee in
accordance with such regulations as might be made in this
behalf :
(b) to maintain a register of recognized Madrasahs;
(c) to provide by regulations, after considering the
D recommendations of the Syllabus Committee, if any, the
curriculum, syllabus, courses or studies to be followed and books
to be studied in recognized Madrasahs for examinations
instituted by the Board;
(d) to undertake, if necessary, with the approval of the State
E Government, the preparation, publication or sale of text-books
and other books for use in recognised Madrasahs;
(e) to maintain and publish list of holidays for recognised
Madrasahs, list of books approved for use in recognized
Madrasahs and for examinations instituted by the Board and
F to remove the name of any such book from any such list;
(ee) to maintain, print and issue from time to time, the
Registration Certificate, Admit Card, Marksheet, Migration
Certificate, Certificates and such other papers as it may thinks
fit;
G (f) To institute various Madrasah Examinations and such other
similar examinations as it may think fit and to make regulations
in this behalf;
(g) to set down the conditions to be fulfilled by the candidates
presenting themselves for examinations instituted by the Board;
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RAHAMANIA HIGH MADRASAH [UDAY UMESH LALIT, J.]

(h) to provide by regulations after considering the A
recommendations of the Examinations Committee, if any, the
rates of remuneration’ to be paid to the paper-setters,
moderators, tabulators, examiners. invigilators, supervisors and
others employed in connection with the examinations instituted
by the Board, and, the fees to be paid by candidates for such
B
examinations with the approval of the State Government;
(i) to grant or refuse permission to candidates to appear at
examinations instituted by the Board and to withdraw such
permission if it thinks fit in accordance with such regulations
as may be made in this behalf;
C
(j) to provide by regulations the procedure for filling and disposal
of appeals by the members of the teaching and non-teaching
staff against the decisions of the Managing Committees of
recognized Madrasahs;
(k) to administer the West Bengal Madrasah Education Board D
Fund;
(l) to institute and administer such Provident Funds as may be
prescribed;
(m) to make regulations relating to the conduct, discipline and
appeal in respect of the members of the staff ; E
(mm) to make regulations relating to conduct and discipline
in respect of teachers and non-teaching staff of the
recognised Institutions under the Board;
(mmm) to make regulations determining the qualification
F
for, and the method of, recruitment of teachers in class I to
class IV of the Senior Madrasah;
(n) to perform such other functions as may be assigned to it by
the State Government.
(3) Subject to the provisions of sub-section (2). the Board shall G
have power to make regulations in respect of any matter for
the proper exercise of its powers under this Act.
Provided that any decision or action taken or any order made
by the Board in the discharge of its functions under this Act
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200 SUPREME COURT REPORTS [2020] 1 S.C.R.

A shall not be invalid merely on the ground that no regulation has
been made under this sub-section.
(4) No regulation shall be valid unless it is approved by the
State Government and the State Government may, in
accordance with such approval, make such additions, alterations
B or modifications therein as it thinks fit:
Provided that before making any such addition, alteration or
modification, the State Government shall give the Board an
opportunity to express its views thereon within such period,
not exceeding one month, as may be specified by the State
C Government.
(5) All regulations approved by the State Government shall be
published in the Official Gazette.”
5. The West Bengal Minorities’ Commission Act, 1996 was enacted
to constitute a Minorities Commission to study and suggest additional
D social, economic, educational and cultural requirements of religious and
linguistic minorities of West Bengal with a view to equipping them to
preserve secular traditions of West Bengal and to promote national
integration. Section 3 deals with Constitution of the West Bengal
Minorities’ Commission and sub Sections (1) and (3) of Section 4 are as
E under:-
“4. Functions of the Commission.– (1) The Commission shall
perform the following functions:-
(a) evaluate the progress of the development of minorities of West
Bengal and review implementation of the policies and. programme
F of the State Government;
(b) monitor the working of the safeguards provided in the
Constitution and in laws enacted by Parliament or the State
Legislature;
(c) make recommendations for the effective enforcement and
G implementation of safeguards for the protection of the interests
of minorities provided by the Central Government or the State
Government;
(d) look into specific complaints regarding deprivation of social,
economic, educational, cultural and linguistic rights and safeguards
H
SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI 201
RAHAMANIA HIGH MADRASAH [UDAY UMESH LALIT, J.]

of the minorities and take up such matters with the-appropriate A
authorities;
(e) recommend to the State Government to accord minority status
to religious, linguistic and ethnic groups, provided such groups do
not enjoy any constitutional or statutory benefits or status;
(f) cause studies to be undertaken into problems arising out of B
any discrimination against minorities and recommend measures
for their removal;
(g) conduct studies, research and analysis on the issues relating
to socio-economic and educational development of minorities;
C
(h) make annual report to the State Government on any matter
pertaining to any of the functions of the Commission under this
section.
… …
(3) The advice of the Commission and, especially, the findings of D
the Commission concerning deprivation of any right of the minority
or any infringement of any well-being of the minority by omission
or commission, shall ordinarily be binding upon the State
Government.”
6. The West Bengal School Service Commission Act, 1997 (“1997 E
Act”, for short) was enacted to provide for the constitution of Regional
School Service Commissions and a Central School Service Commission
in the State and for matters connected therewith or incidental thereto.
The definitions of “School” and “Teacher” in Section 2(n) and (p) are as
under:-
F
“(n) “school” means a recognized non-Government aided –
(i) secondary school, or educational institution, or part or
department of such school or institution, imparting instruction in a
secondary education or
(ii) higher Secondary school, or educational institution (other than G
a college), or part or department of such school or institution,
imparting instruction in higher secondary education, or
and includes a sponsored school.

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202 SUPREME COURT REPORTS [2020] 1 S.C.R.

A Explanation I –”Recognized” with its grammatical variations,
used with reference to a school, shall mean –
(a) recognized or deemed to have been recognized under the West
Bengal Board of Secondary Education Act, 1963 or
(b) recognized under the West Bengal Council of Higher Secondary
B Education Act, 1975,
Explanation II – “Aided” with its grammatical variations, used
with reference to a school, shall mean aided by the State
Government in the shape of financial assistance towards the basic
pay of the teachers of that school.
C
Explanation III – “Basic pay” shall mean the monthly pay of a
teacher of a school which corresponds to a stage in the time-
scale of pay of the post, held by the teacher in that school.
Explanation IV – “Secondary Education” shall have the same
D meaning as in clause (1) of section 2 of the West Bengal Board of
Secondary Education Act, 1963.
Explanation V – “Higher Secondary Education” shall have the
same meaning as in clause (d) of section 2 of the West Bengal
Council of Higher Secondary Education Act, 1975.
E Explanation VI – “Sponsored School” shall mean a school
declared as a sponsored school by the State Government by
notification.
(p) “Teacher” means an Assistant Teacher or any other person,
holding a teaching post of a school and recognized as such by the
F Board or the Council or the Board of Madrasah, as the case may
be, and includes the Headmaster or the Headmistress 2(but shall
not include the Assistant Headmaster or the Assistant Headmistress
or the Teacher holding a post against short-term vacancy caused
by deputation, leave or lien).”
G 6.1 Section 3 deals with constitution of the Commission and
Regional Commissions. Section 4(4) dealing with composition of
Chairman is as under:

2
The words within brackets were inserted by the West Bengal School Service Commission
(Second Amendment) Act, 2001.
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SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI 203
RAHAMANIA HIGH MADRASAH [UDAY UMESH LALIT, J.]

“(4) (a) The office of the Chairman shall be whole-time; the other A
members shall be honorary.
(b) The Chairman and other members shall hold office for a term
of four years 3[but in the case of ex officio member such term
shall be one year]:
(c) Subject to the foregoing provisions of this sub-section, the B
other terms and conditions of service of the Chairman and other
members shall be such as may be prescribed.”
6.2 Sections 7 and 9 are as under:-
“7. Functions of Regional Commission. – Notwithstanding C
anything contained in any other law for the time being in force or
in any contract, custom or usage to the contrary, it shall be the
duty of the Regional Commission to recommend persons for
appointment to the posts of Teachers or non-teaching staff in school
within its territorial jurisdiction under he supervision and control
of the Central Commission on the basis of the result of the State D
Level Selection Test conducted by the Central Commission.
9. Effect of recommendation of Commission – (1)
Notwithstanding anything contained in any other law for the time
being in force or in any contract, custom or usage to the contrary,
appointments to the posts of Teachers and non-teaching staff in E
school shall be made by the Board or the ad-hoc committee or
the administrator of the Board on the recommendation of the
Regional Commission having jurisdiction.
(2) Any appointment of a Teacher or a non-teaching staff made
on or after the commencement of this Act in contravention of the F
provisions of this Act shall be invalid and shall have no effect and
the Teacher or the non-teaching staff so appointed shall not be a
Teacher or a non-teaching staff within the meaning of clause (p)
or clause (ia) of section 2, as the case may be.”
6.3 Sub-sections (a) and (b) of Section 15, however, stipulated as G
under:
“15. Act not to apply in relation to certain schools:-
The provisions of this Act shall not apply to-
3
Words ins. By W.B. Act 5 of 2001. H
204 SUPREME COURT REPORTS [2020] 1 S.C.R.

A (a) a school established and administered by a minority, whether
based on religion or language, or
(b) a school under any trust, established and administered by a
minority, whether based on religion or language, or … … … “
7. By notification issued on 12.10.2007, Government of West
B Bengal, Minorities Development and Welfare and Madrasah Education
Department declared and granted to all recognised and aided Madrasahs
under the control of the Government the status of “Minority Educational
Institutions”. The text of the Notification was as under:-
“Government of West Bengal
C
Minorities Development & Welfare & Madrasah Education
Department
Writers’ Buildings, Kolkata – 700001
No.1465-MD/07 Dated: 12.10.07
D
NOTIFICATION
WHEREAS Muslim recognised as Minority Community in the
State of West Bengal and minorities have the right under Article
30 of the Constitution of India to establish and administer
educational institution of their choice;
E
AND WHEREAS the State Government is competent to
declare a particular institution as a minority institution and till such
time the government issue an order declaring that it is a minority
institution they can not operate as Minority Institutions;

F AND WHEREAS the Supreme Court has held that the
Government are the Competent Authority to verify and determine
the minority status of an Educational Institution for the purpose of
Article 30(1) of the Constitution of India;
AND WEHREAS the Govt. recognised Madrasahs including
G Hooghly Govt. Madrasah and the Calcutta Madrasah were
originally established by the Muslim minority and continuously
administered by the members of that minority to subserve and
promote the interests of the minority community concerned;
AND WEHREAS the abovesaid Madrasahs were, in course
of times, recognised alongwith liabilities by the Government for
H
SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI 205
RAHAMANIA HIGH MADRASAH [UDAY UMESH LALIT, J.]

promoting educational interests of the Muslim minority and on A
verification it has been ascertained that more than 90% students
are pursuing their studies in these institutions and these Madrasahs
are functioning under supervision of the W.B. Madrasah Board
constituted with member representatives of the Minority
Community concerned.
B
AND WHEREAS the State Govt. having been satisfied about
the above antecedents of all the recognised Madrasahs which
are aided and guided by the Government prescribed guidelines
relating to admissions, selections etc. and about their continuing
and sustained functioning for promoting the interests of the
concerned minority have become satisfied that these institutions C
are fit to enjoy minority status of an Educational Institution for the
purpose of Article 30(1) of the Constitution of India.
AND WHEREAS the Govt. in the State of West Bengal have
also considered expedients to declare these recognized and aided
Madrasahs and those which will be so recognised and aided as D
such in future as Minority Educational Institution.
NOW, THEREFORE, in accordance with the above
considerations and in pursuance of the Article 30 of the Constitution
of India the Government is pleased, hereby, to declare that all the
recognised and aided Madrasahs under control of this Government E
and those Madrasahs which will be recognised on similar lines in
future, as Minority Educational Institutions. These institutions will
also be allowed, in consequence to have the following effects as
agreed upon by the State Government.
i) They will continue to get financial assistance as before from F
the State Government
ii) Reservation policy for employment etc. shall not apply in case
of appointment of teachers and non-teaching staff in these
Madrasahs.
G
iii) Selection of teachers may continue to be done by West Bengal
School Service Commission through separate panel.
By order of the Governor
(Pawan Agawal)
Secretary to the Govt. of West Bengal” H
206 SUPREME COURT REPORTS [2020] 1 S.C.R.

A 8. Consequent to the aforesaid notification dated 12.10.2007
conferring status of “Minority Educational Institutions” on all recognised
and Government aided Madrasahs, another notification was issued on
28.12.2007 by the Government of West Bengal, Minorities’ Development
& Welfare and Madrasah Education Department stating that after being
conferred such status “the matter of selection of teachers for recognised
B
and aided Madrasahs of this State has gone out of the purview of the
existing West Bengal School Service Commission Act, 1997”.
9. The Commission Act was thereafter enacted to provide for the
constitution of Madrasah Service Commission in the State and for matters
connected therewith or incidental thereto. Statement of Objects and
C Reasons in relation to the Commission Act was as under:-
“With the declaration of recognised madrasahs as minority
educational institutions by the State Government recently, the West
Bengal School Service Commission cannot recommend panel of
teachers for recognised madrasahs as per provisions of Section
D 15 of the West Bengal School Service Commission Act, 1997
(West Bengal Act IV of 1997). Therefore, a need has arisen for
setting up of a separate body for recommending panel of teachers
for appointment in Recognised Non-Government Aided
Madrasahs. In view of this, it has been decided to set up the West
E Begal Madrasah Service Commission.
2. The proposed Commission would ensure the preparation of
panel of teachers by recruitment in free, fair and transparent
manner with a quality education for madrasahs.
3. The said Commission would also take into consideration the
F special requirement of teachers in the madrasahs system in the
State.
4. The Bill has been framed with the above objects in view.”
9.1 The expressions “Madrasah”, “Teacher” and “vacant post”
are defined in Section 2(k), (s) and (t) respectively under the Commission
G
Act as under:-
“(k) “Madrasah” means a Recognised Non-Government Aided
Senior Madrasah, Junior High Madrasah, High Madrasah or Higher
Secondary Madrasah imparting instruction in-
H
SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI 207
RAHAMANIA HIGH MADRASAH [UDAY UMESH LALIT, J.]

(i) High Madrasah Education System within the meaning of sub A
clause (i)
(ii) Senior Madrasah Education System within the meaning of
sub-clause(ii), of clause (g) of Section 2 of the West Bengal
Board of Madrasah Education Act, 1994; or
(iii) Higher Secondary Education; B

Explanation1. – “recognised” with its grammatical variations,
used with reference to a Madrasah, shall mean-
(a) Recognized or deemed to have been reconized under
the West Bengal Board of Madrasah Education Act, 1994, C
or
(b) Recognized under the West Bengal Council of Higher
Secondary Education Act, 1975
Explanation II. – “Aided” with its grammatical variations, used
with reference to a Madrasah, shall mean aided by the State D
Government in the shape of financial assistance towards basic
pay of the teachers of Madrasah.
Explanation III. – “basic pay” shall mean the monthly pay of a
teacher of a Madrasah which corresponds to a stage in the
timescale of pay of the post held by the teacher in that madrasah, E
Explanation IV.- “Madrasah Education” shall have the same
meaning as in clause (g) of section 2 of the West Bengal Board of
Madrasah Education Act, 1994;
Explanation V.- “Higher Secondary Education” shall have the same
meaning as in clause (d) of section 2 of the West Bengal Council F
of Higher Secondary Education Act, 1975.
(s) “Teacher” means an Assistant Teacher, or any other person
holding a teaching post of a madrasah recognised as such by the
Board or the Council, as the case may be, and shall include the
headmaster, the Headmistress or the Superintendent. G

(t) “vacant post” means a vacancy, caused by–
(i) creation of new post by the State Government, or

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208 SUPREME COURT REPORTS [2020] 1 S.C.R.

A (ii) retirement, death, resignation, removal or dismissal of any
person from the post of teacher, the post having been sanctioned
by the Competent authority or the State Government,
but shall not include a short-term vacancy due to deputation, leave
or lien and that of a part time post or the post of Assistant
B Headmaster or Assistant Headmistress.”
9.2 Section 4 deals with composition of the Commission and is to
the following effect:-
“4. (i) The Commission shall consist of one Chairman and four
members.
C (ii) The Chairman shall be an eminent educationist having profound
knowledge in Islamic Culture and well-versed in education and
teaching experience, either as a teacher of a university, or as a
Principal of a college, for a period of not less than twelve years,
or as a teacher, other than Principal of a college, for a period of
not less than fifteen years, or an officer of the State Government
D not below the rank of Joint Secretary.
(iii) Of the four members under sub-section (1), one shall be a
person who, not being an educationist, occupies or has occupied,
in the opinion of the State Government, a position of eminence in
public life or in Legal or Administrative service, one shall be an
E eminent educationist having profound knowledge in Islamic
Theology and Culture, and the others shall have teaching
experience, either as a teacher of a university, or as a Principal of
a college, for a period of not less than ten years, or as a teacher,
other than Principal of a college, or as a Headmaster or
Headmistress or Superintendent of a Madrasah, for a period of
F
not less than fifteen years.”
9.3 Sections 8, 10, 11, 12, 13 and 18 of the Commission Act are as
under:-
“8. Notwithstanding anything contained in any other law for the
time being in force or in any contract, custom or usage to the
G
contrary, it shall be the duty of the Commission to select and
recommend persons to be appointed to the vacant posts of teachers
in accordance with the provisions of this Act and the rules made
thereunder.
…
H
SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI 209
RAHAMANIA HIGH MADRASAH [UDAY UMESH LALIT, J.]

10. Notwithstanding anything contained in any other law for the A
time being in force or any contract, custom or usage to the contrary,
the Managing Committee, the ad hoc Committee or the
Administrator, as the case may be, shall be bound to appoint the
candidate recommended by the Commission to the post of teacher
in the Madrasah concerned as per vacancy report.
B
Provided that in the absence of the Managing Committee, ad hoc
Committee or the Administrator, the Head Master or the
Headmistress or the Teacher-In-charge is empowered to issue
appointment letter to the candidate recommended by the
Commission. Such matter should be ratified at the next available
meeting of the Managing Committee, ad hoc Committee or by the C
Administrator, as the case may be:
Provided further that the Managing Committee, ad hoc Committee,
the Administrator or the Headmaster or the Headmistress or the
Teacher-in-charge as the case may be, shall, if any error is
detected in the recommendation, immediately bring it to the notice D
of the Commission for removal of such error.
11. Any appointment of a teacher made on or after the
commencement of this Act in contravention of the provision of
this Act shall be invalid and shall have no effect and teacher so
appointed shall not be a teacher within the meaning of clause (s) E
of Section 2.
12. (i) If the Managing Committee, the ad hoc Committee or the
Administrator of a Madrasah, as the case may be, refuses, fails
or delays to issue appointment letter to the candidate recommended
by the Commission within the period stipulated in the letter of F
recommendation by the Commission, without any reasonable
ground, the State Government may direct the Board to dissolve
the Managing Committee or the ad hoc Committee, or discharge
the Administrator, as the case may be, or stop all financial assistance
to such Madrasah recording reasons thereof and may also issue G
direction upon the Board or Council, as the case be, to withdraw
recognition or affiliation of such Madrasah.

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210 SUPREME COURT REPORTS [2020] 1 S.C.R.

A (ii) In case of failure to issue appointment letter to the candidate
recommended by the Commission is on the part of the
Superintendent, the Headmaster, the Headmistress or the Teacher-
in-charge of a Madrasah, he shall be subject to such disciplinary
proceedings as may be prescribed.
B 13. Notwithstanding anything contained elsewhere in this Act, the
terms and conditions of service of teachers in the employment of
a Madrasah immediately before the commencement of this Act,
shall not be varied to the disadvantage of such teachers in so far
as such terms and conditions relate to the appointment of such
teachers to the posts held by them immediately before the
C commencement of this Act.
… … …
18. (1) The State Government may, by notification, make rules
for carrying out the purposes of this Act.
D (2) In particular, and without prejudice to the generality of the
foregoing power, such rules may provide for all or any of the
following matters:-
(a) the terms and conditions of service of the Chairman and
other members under section 5;
E
(b) the manner in which an inquiry is to be made for removal
of the Chairman or any member under section 6;
(c) the terms and conditions of service of the Secretary under
section 7;
F (d) the manner and scope of selection of persons for
appointment to the posts of teachers under section 9;
(e) any other matter which may be, or is required to be,
prescribed.
(3) Every rule made by the State Government under this
G Act shall be laid, as soon as may be after it is made, before the
State Legislature.”
10. The West Bengal Madrasah Service Commission
(Amendment) Act, 2010 made certain amendments in the Commission
Act. Section 2 of the Amendment Act is to the following effect:-
H
SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI 211
RAHAMANIA HIGH MADRASAH [UDAY UMESH LALIT, J.]

“2. In section 8 of the West Bengal Madrasah Service Commission A
Act, 2008 (hereinafter referred to as the principal Act), after the
words “or the Non-teaching staff’, the words “and also to
recommend the transfer including mutual transfer of the teachers
of the Non-teaching staff’ shall be inserted.”
11. In exercise of power conferred by the provisions of the B
Commission Act, the West Bengal Madrasah Service Commission
Recruitment (selection and recommendation of persons for appointment
and transfer to the posts of teaching and non-teaching staff) Rules, 2010
(“2010 Rules”, for short) were promulgated. Chapter-III of 2010 Rules
deals with subject “Scope, Method and Manner of Selection” and Rule
8 is to the following effect:- C

“8. Manner of selection –
(1) Selection to any post shall be made on the basis of results of
the State/Region/Area Level Selection Test, as may be decided
by the Commission, which may comprise any, some or all of D
the following (as the case may be) –
a) Written Examination
b) Evaluation of Qualification
c) Personality Test
E
d) Aptitude Test
of the candidates, as the case may be, in the manner as
specified in Schedule III
(2) The Commission may, in its discretion, fix the minimum
qualifying marks to be scored/obtained by the candidates in F
written examination or in aggregate or in both and relax the
qualifying marks on reasonable ground(s) to be recorded in
writing ….”
RIVAL SUBMISSIONS:
G
12. In accordance with the provisions of the Commission Act and
2010 Rules, the Madrasah Service Commission kept making
recommendations against vacant posts which had arisen from time to
time. Various candidates were appointed as teachers. However, a
challenge was raised by the Respondent No.1 by filing Writ Petition
H
212 SUPREME COURT REPORTS [2020] 1 S.C.R.

A No.20650(W) of 2013 as stated hereinabove. It was submitted that in
terms of Section 10 of the Commission Act, the Managing Committee or
the Administrator would be bound to appoint the candidates recommended
by the Madrasah Service Commission and the consequence of not
following such recommendation would visit penalty as provided for in
Section 12; and that if the Writ Petitioner, as a minority institution, was
B
entitled to administer institution of its choice, it would have a corresponding
right to select teachers on its own and that any deprivation of such right
would be violative of the Right conferred by Article 30 of the Constitution.
On the other hand, it was submitted on behalf of the State that
under the provisions of the Commission Act, the Commission would merely
C select and recommend teachers and non-teaching staff of Madrasahs
but the appointment would be given by the concerned institution and the
overall control of the Managing Committees of the concerned institutes
in respect of such staff was not taken away by the Respondents and the
day-to-day administration of the Madrasahs was not interfered with. It
D was further submitted that the number of Madrasahs in the State was
614 and the Madrashs imparted education in accordance with the syllabus
prescribed by the competent authority in respect of all subjects, except
Arabic and Urdu; that most of the Madrasahs were located in the remote
areas of the State and the student population taking education in these
Madrasahs was about 5,00,000. The submission was that the State was
E rendering necessary aid and help to the Managing Committees in finding
good quality teachers as per qualifications prescribed by the National
Council for Teacher Education for imparting quality education to the
students and the whole purpose behind the legislation was to provide the
students with good quality teaching. The submission was paraphrased
F by the Single Judge as under:-
“For the respondents there are primarily two grounds justifying
the relevant provisions of such a legislation. First, the concerned
Madrasah is fully aided for its financial requirements which is
fulfilled by the State Government. Therefore, it is bound to follow
G recruitment procedures for fair and comparative selection of
teachers. Secondly, in terms of the provisions of the impugned
Act the Commission merely selects and recommends a teacher
but overall control of such staff lies with the Managing Committee
where the government does not interfere. Thus the role of the
Commission is that of a mere recommendatory body appointed
H by the government.”
SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI 213
RAHAMANIA HIGH MADRASAH [UDAY UMESH LALIT, J.]

DECISIONS OF THE HIGH COURT IN THE PRESENT A
APPEALS
13. Relying on the decisions of this Court in State of Kerala, etc
vs. Very Rev. Mother Provincial, etc4 and Ahmedabad St. Xavier’s
College Society and Another vs. State of Gujarat and Another5 the
Single Judge observed:- B
“The Supreme Court has also held that the right to administer an
institution is primarily to consist of four principal aspects. First,
the right to chose its managing or governing body. It is said that
the founders of the minority institution have faith and confidence
in their committee or body consisting of persons selected by them. C
Secondly, the right to choose its teachers having compatibility with
their ideals, aims and aspirations. Third is the right not to be
compelled to refuse admission to the students. Fourthly, the right
to use its properties and assets for the benefit of its institution.
This judgment thus unambiguously recognizes that the right to
select its teachers is a part of the right to administer an institution D
which Article 30 has conferred on it. The reasons for that has
also been very clearly explained in the judgment … … …”
13.1 The Single Judge relied upon the decisions of this Court in
Secretary, Malankara Syrian Catholic vs. T. Jose and others 6 and
Sindhi Education Society and another vs. Chief Secretary, E
Government of NCT of Delhi and others 7 and posed following
question:-
“That regulatory measures are permissible to a limited extent has
been judicially accepted. But does the provision impugned in this
legislation qualify for being passed as a regulatory measure? In F
view of the well defined parameters of the regulatory measures
can it be said that taking away the right of selection of teachers
from the jurisdiction of the petitioners is also an act to regulate the
affairs of the Madrasah and not to interfere with its administration?
Answers to these queries are essentially related to a resolution of G
the present dispute.”

4
(1970) 2 SCC 417
5
(1974) 1 SCC 717
6
(2007) 1 SCC 386
7
(2010) 8 SCC 49 H
214 SUPREME COURT REPORTS [2020] 1 S.C.R.

A 13.2 Further, after referring to the decision in Ahmedabad St.
Xavier’s College5 the Single Judge observed:-
“… …The State can prescribe regulations to ensure the excellence
of the institution. Prescription of standards for educational
institutions does not militate against the right of the minority to
B administer the institutions. Regulations made in the true interest
of efficiency of instructions, discipline, health, sanitation, morality,
public order and the like may undoubtedly be imposed. It has
been specifically laid down hat such regulations are not restrictions
on the subsistence of the right which is guaranteed. On the other
hand, they secure the proper functioning of the institution in matters
C of education. The minority institutions cannot be allowed to fall
below the standards of excellence expected of an educational
institution or under the guise of exclusive right of management to
decline to follow the general patern.”
13.3. The Single Judge then concluded:-
D
“Thus, I find that the impugned provisions of the Act tend to take
away the protected right conferred upon the minorities to administer
institutions according to their choice. The right of the Commission
to select and recommend teachers for these institutions in a very
major way interferes with the right to administer those institutions
E rendering a constitutional mandate virtually ineffective. The
perception of a prevailing social reality cannot circuitously
circumvent a constitutional protection.
The impugned provisions of the Act are thus not only not in
consonance with the protection guaranteed by the Constitution
F but are definitely in derogation thereof. Section 8 of the Act cannot
be read in isolation. Read with the subsequent provisions there is
an element of compulsion in the effect of the recommendation
made by the Commission which is really against the freedom
guaranteed in Article 30 of the Constitution of India. Section 8 of
G the said Act is hereby declared ultra vires the Constitution. In
view of what has been discussed before the prayer of the petitioner
is moulded and Sections 10, 11 and 12 of the act are also declared
ultra vires the Constitution.”
14. The challenge raised by the Commission, by the State as well
as by the teachers who were recommended under the provisions of the
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Commission Act was rejected by the Division Bench of the High Court, A
while accepting the view taken by the Single Judge. The Division Bench
observed:-
“The present enactment is sought to be defended by the State on
the ground of funding the institutions and opinion that it is only
recommendatory process and not interference with the overall B
administration of the institutions. We are afraid whatever by the
nature of recommendations it would definitely touch upon the
administrative authority or control to be exercised by the minority
institutions while administering their institutions in every aspect
and respect since institutions would not have the option to choose
individuals beyond the recommendations so made. Hence, the C
scheme of the Act instead of being regulatory, prohibits the freedom
of minority institutions in selecting its own personnel. It is one
thing to regulate the process of appointment by providing guidelines
etc. it is however entirely different to clog the right of choice of
the minority institution by prohibiting them to choose any candidate D
otherwise eligible except from those recommended by the
Commission. Since appointment of teachers etc. is very relevant
so far as the quality of education is concerned, if there are any
mala fides statutory infirmities brought to the notice of the State
Government as it is completely funded by the State Government,
it is open to the State Government to withdraw financial support if E
mala fides/illegalities are found in such process of selection of
teaching staff etc. Such right is always with the State Government
irrespective of minority institutions or other institutions.
So far as the present enactment is concerned, we cannot
deviate from the opinion of the learned Single Judge that such act F
is nothing but violation of the Fundamental Rights guaranteed by
the Constitution in terms of Article 29 and 30 of the Constitution
of India. Therefore, we decline to interfere with the opinion
expressed by the learned Single Judge and accordingly appeals
deserve to be dismissed. G
We have also heard the submissions made by the learned
Counsel who are appearing for some of the teachers who are
already appointed and are in service for the last five years or
waiting for the appointment of teachers as empanelled in the list.
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A Since the Act of 2008, according to us is nothing but violation
of the Fundamental Rights guaranteed by the Constitution to the
minority institutions, it is exclusively left to the concerned
Madrasahs either to accept contention of such teachers, who are
already in service and permit them to continue in service and/or
to provide appointment to the candidates who are empanelled by
B
the Commission awaiting such appointment.
With these observations, the appeals are disposed of along
with the connection applications.”
15. We heard Mr. Mohan Parasaran, Mr. Kalyan Banerjee, Mr.
C Huzefa Ahmadi, Mr. Jayant Bhushan, Mr. Jaideep Gupta, Mr. Salman
Khursheed and Mr. P.S. Patwalia, learned Senior Advocates appearing
for various parties and other learned Advocates who took us through the
relevant decisions holding the field and also invited our attention to various
statutory provisions. Since the submissions, to a certain extent, were
over lapping, we are not dealing with the submissions advanced by the
D learned Counsel individually.
16. The basic issues which arise for consideration are whether
the provisions, namely, Sections 8, 10, 11 and 12 of the Commission Act
are ultra vires as held by the High Court and whether these provisions
transgress the right of minority institutions guaranteed under the
E Constitution of India. Before we deal with the basic issues raised in
these appeals, the various decisions touching upon the extent of rights of
minority institutions as guaranteed by the Constitution, need to be adverted
to. Since the decision of this Court in TMA Pai Foundation and others
vs. State of Karnataka and others8 was rendered by a Bench of Eleven
F Judges, we have divided the discussion under three headings covering
relevant decisions:-
A) Decisions upto TMA Pai Foundation;
B) Decision in TMA Pai Foundation; and
C) Decisions after TMA Pai Foundation.
G
A) Decisions upto TMA Pai Foundation
17. In Re: The Kerala Education Bill, 19579, a seven Judge
Bench of this Court dealt with a reference made by the President of
8
(2002) 8 SCC 481
H 9
(1959) SCR 995
SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI 217
RAHAMANIA HIGH MADRASAH [UDAY UMESH LALIT, J.]

India under Article 143(1) of the Constitution in respect of the Kerala A
Education Bill, 1957. Some of the salient features of the Bill were
paraphrased in the majority opinion delivered by S.R. Das, C.J. and
insofar as the present case is concerned, the relevant discussion was:-
“Clause 9 makes it obligatory on the Government to pay the salary
of all teachers in aided schools direct or through the headmaster B
of the school and also to pay the salary of the non-teaching staff
of the aided schools. It gives power to the Government to prescribe
the number of persons to be appointed in the non-teaching
establishment of aided schools, their salaries, qualifications and
other conditions of service. The Government is authorised, under
sub-clause (3), to pay to the manager a maintenance grant at C
such rates as may be prescribed and under sub-clause (4) to make
grants-in-aid for the purchase, improvement and repairs of any
land, building or equipment of an aided school. Clause 10 requires
Government to prescribe the qualifications to be possessed by
persons for appointment as teachers in Government schools and D
in private schools which, by the definition, means aided or
recognised schools. The State Public Service Commission is
empowered to select candidates for appointment as teachers in
Government and aided schools according to the procedure laid
down in clause 11. Shortly put, the procedure is that before the
31st May of each year the Public Service Commission shall select E
for each district separately candidates with due regard to the
probable number of vacancies of teachers that may arise in the
course of the year, that the list of candidates so selected shall be
published in the Gazette and that the manager shall appoint teachers
of aided schools only from the candidates so selected for the district F
in which the school is located subject to the proviso that the
manager may, for sufficient reason, with the permission of the
Commission, appoint teachers selected for any other district.
Appointment of teachers in Government schools are also to be
made from the list of candidates so published. In selecting
candidates the Commission is to have regard to the provisions G
made by the Government under clause (4) of Art. 16 of the
Constitution, that is to say, give representation in the educational
service to persons belonging to the Scheduled Castes or Tribes–a
provision which has been severely criticised by learned counsel
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218 SUPREME COURT REPORTS [2020] 1 S.C.R.

A appearing for the Anglo-Indian and Muslim communities.”
(Emphasis supplied)
17. 1 The grievance as raised was set out as under:-
“Their grievances are thus stated : The gist of the right of
administration of a school is the power of appointment, control
B and dismissal of teachers and other staff. But under the said Bill
such power of management is practically taken away. Thus the
manager must submit annual statements (cl. 5). The fixed assets
of the aided schools are frozen and cannot be dealt with except
with the permission of the authorised officer (cl. 6). No educational
C agency of an aided school can appoint a manager of its choice
and the manager is completely under the control of the authorised
officer, for he must keep accounts in the manner he is told to do
and give periodical inspection of them, and on the closure of the
school the accounts must be made over to the authorised officer
(cl. 7). All fees etc. collected will have to be made over to the
D Government (cl. 8(3)). Government will take up the task of paying
the teachers and the non-teaching staff (clause 9). Government
will prescribe the qualification of teachers (clause 10). The school
authorities cannot appoint a single teacher of their choice, but
must appoint persons out of the panel settled by the Public Service
E Commission (clause 11). The school authorities must provide
amenities to teachers and cannot dismiss, remove, reduce or even
suspend a teacher without the previous sanction of the authorised
officer (clause 12).
(Emphasis supplied)
F 17. 2 The majority opinion observed:-
“We are thus faced with a problem of considerable complexity
apparently difficult of solution. There is, on the one hand the minority
rights under Art. 30(1) to establish and administer educational
institutions of their choice and the duty of the Government to
G promote education, there is, on the other side the obligation of the
State under Art. 45 to endeavour to introduce free and compulsory
education. We have to reconcile between these two conflicting
interests and to give effect to both if that is possible and bring
about a synthesis between the two. The directive principles cannot
ignore or override the fundamental rights but must, as we have
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SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI 219
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said, subserve the fundamental rights. We have already observed A
that Art. 30(1) gives two rights to the minorities, (1) to establish
and (2) to administer, educational institutions of their choice. The
right to administer cannot obviously include the right to mal-
administer. The minority cannot surely ask for aid or recognition
for an educational institution run by them in unhealthy surroundings,
B
without any competent teachers, possessing any semblance of
qualification, and which does not maintain even a fair standard of
teaching or which teaches matters subversive of the welfare of
the scholars. It stands to reason, then, that the constitutional right
to administer an educational institution of their choice does not
necessarily militate against the claim of the State to insist that in C
order to grant aid the State may prescribe reasonable regulations
to ensure the excellence of the institutions to be aided. Learned
Attorney-General concedes that reasonable regulations may
certainly be imposed by the State as a condition for aid or even
for recognition….”
D
“…..Clauses 6, 7, 9, 10, 11, 12, 14, 15 and 20 relate to the
management of aided schools. Some of these provisions, e.g., 7,
10, 11(1), 12(1)(2)(3) and (5) may easily be regarded as reasonable
regulations or conditions for the grant of aid. Clauses 9, 11(2) and
12(4) are, however, objected to as going much beyond the
permissible limit. It is said that by taking over the collections of E
fees, etc., and by undertaking to pay the salaries of the teachers
and other staff the Government is in reality confiscating the school
fund and taking away the prestige of the school, for none will
care for the school authority. Likewise clause 11 takes away an
obvious item of management, for the manager cannot appoint any F
teacher at all except out of the panel to be prepared by the Public
Service Commission, which, apart from the question of its power
of taking up such duties, may not be qualified at all to select
teachers who will be acceptable to religious denominations and in
particular sub-clause (2) of that clause is objectionable for it thrusts
upon educational institutions of religious minorities teachers of G
Scheduled Castes who may have no knowledge of the tenets of
their religion and may be otherwise weak educationally. Power of
dismissal, removal, reduction in rank or suspension is an index of
the right of management and that is taken away by clause 12(4).
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220 SUPREME COURT REPORTS [2020] 1 S.C.R.

A These are, no doubt, serious inroads on the right of administration
and appear perilously near violating that right. But considering
that those provisions are applicable to all educational institutions
and that the impugned parts of cls. 9, 11 and 12 are designed to
give protection and security to the ill paid teachers who are engaged
in rendering service to the nation and protect the backward classes,
B
we are prepared, as at present advised, to treat these clauses 9,
11(2) and 12(4) as permissible regulations which the State may
impose on the minorities as a condition for granting aid to their
educational institutions. We, however, find it impossible to support
cls. 14 and 15 of the said Bill as mere regulations. The provisions
C of those clauses may be totally destructive of the rights under
Art. 30(1). It is true that the right to aid is not implicit in Art. 30(1)
but the provisions of those clauses, if submitted to on account of
their factual compulsion as condition of aid, may easily be violative
of Art. 30(1) of the Constitution. Learned counsel for the State of
Kerala recognizes that cls. 14 and 15 of the Bill may annihilate
D
the minority communities’ right to manage educational institutions
of their choice but submits that the validity of those clauses is not
the subject-matter of question 2. But, as already explained, all
newly established schools seeking aid or recognition are, by clause
3(5), made subject to all the provisions of the Act. Therefore, in a
E discussion as to the constitution validity of clause 3(5) a discussion
of the validity of the other clauses of the Bill becomes relevant,
not as and by way of a separate item but in determining the validity
of the provisions of clause 3(5). In our opinion, sub-clause 3 of
clause 8 and cls. 9, 10, 11, 12 and 13 being merely regulatory do
not offend Art. 30(1), but the provisions of sub-clause (5) of clause
F
3 by making the aided educational institutions subject to cls. 14
and 15 as conditions for the grant of aid do offend against Art.
30(1) of the Constitution.”
(Emphasis supplied)
G 18. In Rev. Sidhajbhai Sabhai and Others v. State of Bombay
and Another10, a Bench of six Judges of this Court was called upon to
decide following controversy:-
“The petitioners moved this Court for a writ in the nature of
mandamus or other writ directing the State of Bombay and the
H 10
(1963) 3 SCR 837
SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI 221
RAHAMANIA HIGH MADRASAH [UDAY UMESH LALIT, J.]

Director of Education not to compel the society and the petitioners A
to reserve 80% or any seats in the training, College for “the
Government nominated teacher” nor to compel the society and
the petitioners to comply with the provisions of Rules 5(2), 11, 12
and 14 and not to withdraw recognition of the College or withhold
grant-in-aid under Rule 14 or otherwise.”
B
18.1 The petitioners, members of a religious denomination and
constituting a religious minority were running a Training College for
teachers and 80% of the seats in all non-Government Training Colleges
were directed to be reserved for “the government nominated teachers”
so that such trained teachers could then be absorbed in Primary and
Basic Schools in the State run by District School or Municipal Boards. C

18.2 It was submitted on behalf of the State that since the School
run by the Petitioners was receiving grant from the State, the State was
within its rights to direct reservation of seats as above. After referring
to the decision of this Court in Re: The Kerala Education Bill case9, it
was observed by this Court as under:- D

“Article 30(1) provides that all minorities have the right to establish
and administer educational institutions of their choice, and Art.
30(2) enjoins the State, in granting aid to educational institutions
not to discriminate against any educational institution on the ground
that it is under the management of a minority, whether based on E
religion or language. Clause (2) is only a phase of the non-
discrimination clause of the Constitution and does not derogate
from the provisions made in clause (1). The clause is moulded in
terms negative : the State is thereby enjoined not to discriminate
in granting aid to educational institutions on the ground that the F
management of the institution is in the hands of a minority, religious
or linguistic, but the form is not susceptible of the inference that
the State is competent otherwise to discriminate so as to impose
restrictions upon the substance of the right to establish and
administer educational institutions by minorities, religious or
linguistic. Unlike Art. 19, the fundamental freedom under clause G
(1) of Art. 30, is absolute in terms; it is not made subject to any
reasonable restrictions of the nature the fundamental freedoms
enunciated in Art. 19 may be subjected to. All minorities, linguistic

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222 SUPREME COURT REPORTS [2020] 1 S.C.R.

A or religious have by Art. 30(1) an absolute right to establish and
administer educational institutions of their choice; and any law or
executive direction which seeks to infringe the substance of that
right under Art. 30(1) would to that extent be void. This, however,
is not to say that it is not open to the State to impose regulations
upon the exercise of this right. The fundamental freedom is to
B
establish and to administer educational institutions : it is a right to
establish and administer what are in truth educational institutions,
institutions which cater to the educational needs of the citizens, or
sections thereof. Regulation made in the true interests of efficiency
of instruction, discipline, health, sanitation, morality, public order
C and the like may undoubtedly be imposed. Such regulations are
not restrictions on the substance of the right which is guaranteed
: they secure the proper functioning of the institution, in matters
educational.
(Emphasis supplied)
D 18.3 The effect of the opinion in Re: The Kerala Education
9
Bill was considered as under:-
It was therefore held that notwithstanding the absolute terms in
which the fundamental freedom under Art. 30(1) was guaranteed,
it was open to the state by legislation or by executive direction to
E impose reasonable regulation. The Court did not, however, lay
down any test of reasonableness of the regulation. The Court did
not decide that public or national interest was the sole measure or
test of reasonableness : it also did not decide that a regulation
would be deemed unreasonable only if it was totally destructive
F of the right of the minority to administer educational institution.
No general principle on which reasonableness or otherwise of a
regulation may be tested was sought to be laid down by the Court.
The Kerala Education Bill case9, therefore, is not an authority for
the proposition submitted by the Additional Solicitor General that
all regulative measures which are not destructive or annihilative
G of the character of the institution established by the minority,
provided the regulations are in the national or public interest, are
valid.”
The right established by Art. 30(1) is a fundamental right declared
in terms absolute. Unlike the fundamental freedoms guaranteed
H by Art. 19, it is not subject to reasonable restrictions. It is intended
SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI 223
RAHAMANIA HIGH MADRASAH [UDAY UMESH LALIT, J.]

to be a real right for the protection of the minorities in the matter A
of setting up of educational institutions of their own choice. The
right is intended to be effective and is not to be whittled down by
so called regulative measures conceived in the interest not of the
minority educational institution, but of the public or the nation as a
whole. If every order which while maintaining the formal character
B
of a minority institution destroys the power of administration is
held justifiable because it is in the public or national interest, though
not in its interest as an educational institution, the right guaranteed
by Art. 30(1) will be but a “teasing illusion”, a promise of unreality.
Regulations which may lawfully be imposed either by legislative
or executive action as a condition of receiving grant or of C
recognition must be directed to making the institution while retaining
its character as a minority institution effective as an educational
institution. Such regulation must satisfy a dual test - the test of
reasonableness, and the test that it is regulative of the educational
character of the institution and is conducive to making the institution
D
an effective vehicle of education for the minority community or
other persons who resort to it.”
(Emphasis supplied)
18.4 Finally, it was held,
“We are, therefore, of the view that the Rule 5(2) of the Rules for E
Primary Training Colleges, and Rules 11 and 14 for recognition of
Private Training institutions, insofar as they relate to reservation
of seats therein under orders of Government, and directions given
pursuant thereto regarding reservation of 80% of the seats and
the threat to withhold grant-in-aid and recognition of the college, F
infringe the fundamental freedom guaranteed to the petitioners
under Art. 30(1).”
19. In Rev. Father W. Proost and Others. vs. the State of Bihar
and Others11, a Bench of five Judges of this Court was called upon to
consider the validity of certain provisions including Section 48-A of the G
Bihar State Universities Act, 1960. In terms of said Section 48-A, no
appointments, dismissals, removals and termination of service or reduction
in rank of teachers could be made by the governing body of any college
without the recommendations of the University Service Commission.
11
AIR 1969 SC 465 = (1969) 2 SCR73 H
224 SUPREME COURT REPORTS [2020] 1 S.C.R.

A By virtue of Section 48A(6), the Commission was empowered to
recommend to the governing body of a college for appointment to every
post of teacher, names of two persons arranged in order of preference
which were considered by the Commission to be the best qualified for
such posts. While the challenge was pending in this Court, Section 48-
B was introduced which stated inter alia that notwithstanding anything
B
contained in certain provisions including in sub-Section (6) of 48-A, the
governing body of an affiliated College established by a minority would
be entitled to make appointments, dismissals, removals, termination of
service or reduction in rank of teachers or other disciplinary measures
subject only to the approval of the Commission and the Syndicate of the
C University. Thus, instead of the Commission making the recommendations
under the unamended provisions, now the governing body established by
a minority could make appointments which were however subject to the
approval by the Commission and the Syndicate of the University. While
allowing the petition this Court observed :-
D “The learned Attorney General seeks to read into the protection
granted by Art. 30(1) a corollary taken from Art. 29(1). He
concedes that the Jesuits community is a minority community based
on religion and that, therefore, it has a right to establish and
administer educational institutions of its choice. But he contends
that as the protection to minorities in Art. 29(1) is only a right to
E conserve a distinct language, script or culture of its own, the college
does not qualify for the protection of Art. 30(1) because it is not
founded to conserve them. The question, therefore, is whether
the college can only claim protection of s. 48-B of the Act read
with Art. 30(1) of the Constitution if it proves that the college is
F furthering the rights mentioned in Art. 29(1).
In our opinion, the width of Article 30(1) cannot be cut down by
introducing in it considerations on which Article 29(1) is based.
The latter article is a general protection which is given to minorities
to conserve their language, script or culture. The former is a
G special right to minorities to establish educational institutions of
their choice. This choice is not limited to institution seeking to
conserve language, script or culture and the choice is not taken
away if the minority community having established an educational
institution of its choice also admits members of other communities.
That is a circumstance irrelevant for the application of Article
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30(1) since no such limitation is expressed and none can be implied. A
The two articles create two separate rights, although it is possible
that they may meet in a given case.
… … …
In our judgment the language of Art. 30(1) is wide and must receive
full meaning. We are dealing with protection of minorities and B
attempts to whittle down the protection cannot be allowed. We
need not enlarge the protection but we may not reduce a protection
naturally flowing from the words. Here the protection clearly
flows from the words and there is nothing on the basis of which
aid can be sought from Art. 29(1).” C
20. In State of Kerala, etc vs. Very Rev. Mother Provincial,
4
etc , a Bench of six Judges of this Court considered challenge to certain
provisions of the Kerala University Act, 1969. The ambit of the
concerned provisions was set out by this Court as under:-
“16. Section 53, Sub-sections (1), (2) and (3) confer on the D
Syndicate of the University the power to veto even the action of
the governing body or the managing council in the selection of the
principal. Similarly, Sub-section (4) takes away from the educational
agency or the corporate management the right to select the
teachers. The insistence on merit in Sub-section (4) or on seniority- E
cum-fitness in Sub-section (1) does not save the situation. The
power is exercised not by the educational agency or the corporate
management but by a distinct and autonomous body under the
control of the Syndicate of the University. Indeed Sub-section (9)
gives a right of appeal to the Syndicate to any person aggrieved
by the action of governing body or the managing council thus F
making the Syndicate the final and absolute authority in these
matters. Coupled with this is the power of Vice-Chancellor and
the Syndicate in Sub-sections (2) and (4) of Section 56.”
20.1 Thereafter, this Court extracted the relevant provisions which
took away the power to take disciplinary action from the governing body G
and the managing council and conferred it upon the University. The
decision of the High Court which had found said provisions to be ultra
vires was affirmed by this Court as under:-

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226 SUPREME COURT REPORTS [2020] 1 S.C.R.

A “19. The result of the above analysis of the provisions which have
been successfully challenged discloses that that High Court was
right in its appreciation of the true position in the light of the
Constitution. We agree with the High Court that Sub-Sections (2)
and (4) of Sections 48 and 49 are ultra vires Article 30(1). Indeed
we think that Sub-Sections (6) of these two sections are also ultra
B
vires. They offend more than the other two of which they are a
part and parcel. We also agree that Sub-sections (1), (2), (3) and
(9) of Section 53, Sub-Sections (2) and (4) of Section 56 are ultra
vires as they fail with Sections 48 and 49. We express no opinion
regarding these sub-sections vis-a-vis Article 30(1). We also agree
C that Section 58 (in so far as it removes disqualification which the
founders may not like to agree to) and Section 63 are ultra vires
Articles 30(1) in respect of the minority institutions. The High
Court has held that the provisions (Except Section 63) are also
offensive to Article 19(1)(f) in so far as the petitioners are citizens
of India both in respect of majority as well as minority institutions.
D
This was at first debated at least in so far as majority institutions
were concerned. The majority institutions invoked Article 14 and
complained of discrimination. However, at a later stage of
proceedings Mr. Mohan Kumaramangalam stated that he had
instructions to say that any provision held inapplicable to minority
E institutions would not be enforced against the majority institutions
also. Hence it relieves us of the task of considering the matter
under Article 19(1)(f) not only in respect of minority institutions
but in respect of majority institutions also. The provisions of Section
63 affect both kinds of institutions alike and must be declared
ultra vires in respect of both.”
F
21. In D.A.V. College, etc.. vs. State of Punjab and Others11, a
Bench of five Judges of this Court considered the challenge to certain
provisions of the Guru Nanak University, Amritsar, Act, 1969 and
notifications issued pursuant thereto. Under Section 2(1)(a) of the Act,
a College applying for admission to the privileges of the University was
G obliged to have a regularly constituted governing body consisting of not
more than 20 persons approved by the Senate which body must also
include two representatives of the University. Section 17 required that
the staff initially appointed must be approved by the Vice Chancellor
and any subsequent changes be reported to the University for Vice-
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Chancellor’s approval. These Sections were struck down by this Court A
as affecting the fundamental rights of the petitioners. During the course
of its discussion this Court stated as under:-
“36. We have already seen that in Rev. Father W. Proost and
Ors. v. the State of Bihar and Ors.11, the provisions of Section
48(A) which required the selection of the teachers of all affiliated B
Colleges including the Colleges established by the minorities, to
be made by the University Service Commission, was held to
interfere with the rights of the petitioners in that case. In that
case, while the petition was pending in the Court, Section 48 (B)
was added to the Bihar State University Act whereby
notwithstanding the provisions of Section 48 (A) exemption was C
given to the minority institutions to make appointments with the
approval of the Commission and the Syndicate, the petitioners
claimed exemption under Section 48(B) and submitted that as an
affiliated College established by a minority based on religion or
language they are exempted from Section 48 (A) and that if this D
petition was accepted they will withdraw the petition which had
become superfluous. Even this prayer was not acceded to by the
State and consequently it was held that they were entitled to the
exemption claimed. This decision is not therefore an authority for
the proposition that even the requirement that the staff of a minority
educational institution be appointed, dismissed or removed only E
with the approval of the University or the State does not infringe
the right to administer the institution guaranteed under Article 30(1).
37. In our view there is no possible justification for the provisions
contained in Clauses 2(1)(a) and 17 of Chapter V of the statutes
which decidedly interfere with the rights of management of the F
petitioners colleges. These provisions cannot therefore be made
as conditions of affiliation, the non-compliance of which would
involve disaffiliation and consequently they will have to be struck
down as offending Article 30(1).
38. Clause 18 however in our view does not suffer from the same G
vice as Clause 17 because that provision in so far as it is applicable
to the minority institutions empowers the University to prescribe
by regulations governing the service and conduct of teachers which
is enacted in the larger interests of the Institutions to ensure their
efficiency and excellence. It may for instance issue an ordinance H
228 SUPREME COURT REPORTS [2020] 1 S.C.R.

A in respect of age of superannuation or prescribe minimum
qualifications for teachers to be employed by such Institutions
either generally or in particular subjects. Uniformity in the
conditions of service and conduct of teachers in all non-Government
Colleges would make for harmony and avoid frustration. Of course
while the power to make ordinances in respect of the matters
B
referred to is unexceptional the nature of the infringement of the
right, if any, under Article 30(1) will depend on the actual purpose
and import of the ordinance when made and the manner in which
it is likely to affect the administration of the educational institution,
about which it is not possible now to predicate.”
C 22. In Ahmedabad St. Xavier’s College Society and Another
vs. State of Gujarat and Another5 the applicability of some of the
provisions of the Gujarat University Act, 1949 to a college run by a
minority was in issue before a Bench of nine Judges of this Court. Three
sets of provisions were impeached as being violative of Article 30, viz.
D (i) Sections 40 and 41 in terms of which all colleges within the University
area would be governed by the statutes of the University which may
provide for minimum educational qualifications for teachers and tutorial
staff and the University may approve the appointments of teachers and
may coordinate and regulate the facilities provided and expenditure
incurred by such colleges for teaching and research; (ii) Sections
E 33A(1)(a) and 33A(1)(b) under which the management of a governing
body of every college must include amongst others, a representative of
the University nominated by the Vice-Chancellor and three
representatives of the teachers of the college and at least one
representative each of the members of the non-teaching staff and the
F students of the college. Further, under Section 33A(1)(b), for the purposes
of recruitment of the principal and members of the teaching staff, there
would be a selection committee, which, in the case of recruitment of the
principal, must include a representative of the University nominated by
the Vice-Chancellor and in case of recruitment of a member of teaching
staff, a representative of the University nominated by the Vice-Chancellor
G and the Head of the Department concerned with the subject taught by
such teacher; (iii) Sections 51A and 52A in terms of which no member
of teaching and non-teaching staff of any affiliated college could be
dismissed or removed from service or reduced in rank, except after an
inquiry; no termination of service of any such member would be valid
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unless such termination was approved by the Vice-Chancellor; and any A
dispute between the governing body of the college and any member of
the teaching or non-teaching staff must be referred to a Tribunal of
Arbitration consisting of one member nominated by the governing body
of the college, one member nominated by the concerned member and
an Umpire to be nominated by the Vice-Chancellor.
B
22.1. In the leading Judgment authored by Ray, C.J., for himself
and Palekar, J., the extent of “right to administer” under Article 30 of the
Constitution and the effect of regulatory measures upon the width of
said right was summed up as under:-
“19. … … The right to administer is said to consist of four principal C
matters. First is the right to choose its managing or governing
body. It is said that the founders of the minority institution have
faith and confidence in their own committee or body consisting of
persons elected by them. Second is the right to choose its teachers.
It is said that minority institutions want teachers to have
compatibility with the ideals, aims and aspirations of the institution. D
Third is the right not to be compelled to refuse admission to students.
In other words, the minority institutions want to have the right to
admit students of their choice subject to reasonable regulations
about academic qualifications. Fourth is the right to use its
properties and assets for the benefit of its own institution. E
20. The right conferred on the religious and linguistic minorities to
administer educational institutions of their choice is not an absolute
right. This right is not free from regulation. Just as regulatory
measures are necessary for maintaining the educational character
and content of minority institutions similarly regulatory measures F
are necessary for ensuring orderly, efficient and sound
administration. Das, C.J., in the Kerala Education Bill case
summed up in one sentence the true meaning of the right to
administer by saying that the right to administer is not the right to
mal-administer.
G
22.1.1 While considering the importance of teachers in an
educational institution, Ray, C.J., stated:-
“30. Educational institutions are temples of learning. The virtues
of human intelligence are mastered and harmonised by education.
Where there is complete harmony between the teacher and the
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230 SUPREME COURT REPORTS [2020] 1 S.C.R.

A taught, where the teacher imparts and the student receives, where
there is complete 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 runs smoothly when
the teacher and the taught are engaged in the common ideal of
B
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
important. The minority institutions have the right to administer
institutions. This right implies the obligation and duty of the minority
C institutions to render the very best to the students. In the right of
administration, checks and balances in the shape of regulatory
measures are required 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 colour
D
of minority. A minority institution should shine in 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.
31. Regulations which will serve the interests of the students,
E regulations which will serve the interests of the teachers are of
paramount importance in good administration. Regulations in the
interest of efficiency of teachers, discipline and fairness in
administration are necessary for preserving harmony among
affiliated institutions.
F 32. Education should be a great cohesive force in developing
integrity of the nation. Education develops the ethos of the nation.
Regulations are, therefore, necessary to see that there are no
divisive or disintegrating forces in administration.”
(Emphasis supplied)
G
22.1.2 The conclusion arrived at by the learned Chief Justice was:-
“45. For these reasons the provisions contained in Sections 40,
41, 33-A(1)(a), 33-A(1)(b), 51-A and 52-A cannot be applied to
minority institutions. These provisions violate the fundamental rights
of the minority institutions.
H
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RAHAMANIA HIGH MADRASAH [UDAY UMESH LALIT, J.]

46. The ultimate goal of a minority institution too imparting general A
secular education is advancement of learning. This Court has
consistently held that it is not only permissible but also desirable to
regulate everything in educational and academic matters for
achieving excellence and uniformity in standards of education.
47. In the field of administration it is not reasonable to claim that B
minority institutions will have complete autonomy. Checks on the
administration may be necessary in order to ensure that the
administration is efficient and sound and will serve the academic
needs of the institution. The right of a minority to administer its
educational institution involves, as part of it, a correlative duty of
good administration. C

48. The teachers and the taught form a world of their own where
everybody is a votary of learning. They should not be made to
know any distinction. Their harmony rests on dedicated and
disciplined pursuit of learning. The areas of administration of
minorities should be adjusted to concentrate on making learning D
most excellent. That is possible only when all institutions follow
the motto that the institutions are places for worship of learning
by the students and the teachers together irrespective of any
denomination and distinction.”
(Emphasis supplied) E

22.2 While agreeing with the view taken by the learned Chief
Justice with respect to aforestated provisions, Jaganmohan Reddy J.,
speaking for himself and Alagiriswami J., also juxtaposed provisions in
various statutes which had come up for consideration before this Court
from time to time. As regards the opinion in Re: The Kerala Education F
Bill, 19579, it was observed:-
“The scope and ambit of the rights under Articles 29(1) and 30(1)
were first considered and analysed by this Court while giving its
advice on the Presidential Reference under Article 143 of the
Constitution in Re the Kerala Education Bill, 1957. The report G
which was made to the President in that Reference, it is true, is
not binding on this Court in any subsequent matter wherein in a
concrete case the in fringement of the rights under any analogous
provision may be called in question, though it is entitled to great
weight. Under Article 143 this Court expresses its opinion if it so
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232 SUPREME COURT REPORTS [2020] 1 S.C.R.

A chooses and in some cases it might even decline to express its
opinion, vide In Re Levy of Estate Duty12 cited with approval by
Das, C.J. in In re The Kerala Education Bill, 1957. In some
cases the opinion may be based on certain stated contingencies
or on some assumed or hypothetical situations whereas in a
concrete case coming before this Court by way of an appeal under
B
Article 133, or by special leave under Article 136 or by a petition
under Article 32, the law declared by it by virtue of Article 141 is
binding on all courts within the territory of India. Nonetheless the
exposition of the various facets of the rights under Article 29(1)
and Article 30(1) by Das, C.J. speaking for the majority, with the
C utmost clarity, great perspicuity and wisdom has been the text
from which this Court has drawn its sustenance in its subsequent
decisions. To the extent that this Court has applied these principles
to concrete cases there can be no question of there being any
conflict with what has been observed by Das, C.J. The decisions
rendered on analogous provisions as those that are under challenge
D
in this case would prima facie govern these cases, unless this
larger Bench chooses to differ from them.”
22.3 Khanna, J. in his concurring opinion, considered the extent to
which regulations could be prescribed, as under:-
E “90. We may now deal with the scope and ambit of the right
guaranteed by clause (1) of Article 30. The clause confers a right
on all minorities, whether they are based on religion or language,
to establish and administer educational instructions of their choice.
The right conferred by the clause is in absolute terms and is not
subject to restrictions, as in the case of rights conferred by Article
F 19 of the Constitution. The right of the minorities to administer
educational institutions does not, however, prevent the making of
reasonable regulations in respect of those institutions. The
regulations have necessarily to be made in the interest of the
institution as a minority educational institution. They have to be so
G designed as to make it an effective vehicle for imparting education.
The right to administer educational institutions can plainly not
include the right to maladminister. Regulations can be made to
prevent the housing of an educational institution in unhealthy

12
1944 FCR 317
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SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI 233
RAHAMANIA HIGH MADRASAH [UDAY UMESH LALIT, J.]

surroundings as also to prevent the setting up or continuation of A
an educational institution without qualified teachers. The State
can prescribe regulations to ensure the excellence of the institution.
Prescription of standards for educational institutions does not
militate against the right of the minority to administer the institutions.
Regulations made in the true interests of efficiency of instruction,
B
discipline, health, sanitation, morality, public order and the like may
undoubtedly be imposed. Such regulations are not restrictions on
the substance of the right which is guaranteed: they secure the
proper functioning of the institution, in matters educational [see
observations of Shah, J. in Rev. Sidhajbhai Sabhai10 p. 850].
Further as observed by Hidyatullah, C.J. in the case of Very Rev. C
Mother Provincial4 the standards concern the body politic and
are dictated by considerations of the advancement of the country
and its people. Therefore, if universities establish syllabi for
examinations they must be followed, subject, however, to special
subjects which the institutions may seek to teach, and to a certain
D
extent the State may also regulate the conditions of employment
of teachers and the health and hygiene of students. Such regulations
do not bear directly upon management as such although they may
indirectly affect it. Yet the right of the State to regulate education,
educational standards and allied matters cannot be denied. The
minority institutions cannot be allowed to fall below the standards E
of excellence expected of educational institutions, or under the
guise of exclusive right of management, to decline to follow the
general pattern. While the management must be left to them, they
may be compelled to keep in step with others.
91. It is, in my opinion, permissible to make regulations for ensuring F
the regular payment of salaries before a particular date of the
month. Regulations may well provide that the funds of the institution
should be spent for the purposes of education or for the betterment
of the institution and not for extraneous purposes. Regulations
may also contain provisions to prevent the diversion of funds of
institutions to the pockets of those incharge of management or G
their embezzlement in any other manner. Provisions for audit of
the accounts of the institution would be permissible regulation.
Likewise, regulations may provide that no anti-national activity
would be permitted in the educational institutions and that those
employed as members of the staff should not have been guilty of H
234 SUPREME COURT REPORTS [2020] 1 S.C.R.

A any activities against the national interest. Minorities are as much
part of the nation as the majority, and anything that impinges upon
national interest must necessarily in its ultimate operation affect
the interests of all those who inhabit this vast land irrespective of
the fact whether they belong to the majority or minority sections
of the population. It is, therefore, as much in the interest of
B
minorities as that of the majority to ensure that the protection
afforded to minority institutions is not used as a cloak for doing
something which is subversive of national interests. Regulations
to prevent anti-national activities in educational institutions can,
therefore, be considered to be reasonable.
C 92. A regulation which is designed to prevent maladministration
of an educational institution cannot be said to offend clause (1) of
Article 30. At the sametime it has to be ensured that under the
power of making regulations nothing is done as would detract
from the character of the institution as a minority educational
D institution or which would impinge upon the rights of the minorities
to establish and administer educational institutions of their choice.
The right conferred by Article 30(1) is intended to be real and
effective and not a mere pious and abstract sentiment; it is a
promise of reality and not a teasing illusion. Such a right cannot
be allowed to be whittled down by any measure masquerading as
E a regulation. As observed by this Court in the case of Rev.
Sidhajbhai Sabhai, regulations which may lawfully be imposed
either by legislative or executive action as a condition of receiving
grant or of recognition must be directed to making the institution
while retaining its character as minority institution effective as an
F educational institution. Such regulation must satisfy a dual test —
the test of reasonableness, and the test that it is regulative of the
educational character of the institution and is conducive to making
the institution an effective vehicle of education for the minority
community or other persons who resort to it.
G … … …
94. If a request is made for the affiliation or recognition of an
educational institution, it is implicit in the request that the educational
institution would abide by the regulations which are made by the
authority granting affiliation or recognition. The said authority can
H always prescribe regulations and insist that they should be complied
SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI 235
RAHAMANIA HIGH MADRASAH [UDAY UMESH LALIT, J.]

with before it would grant affiliation or recognition to an educational A
institution. To deny the power of making regulations to the authority
concerned would result in robbing the concept of affiliation or
recognition of its real essence. No institution can claim affiliation
or recognition until it conforms to a certain standard. The fact
that the institution is of the prescribed standard indeed inheres in
B
the very concept of affiliation or recognition. It is, therefore,
permissible for the authority concerned to prescribe regulations
which must be complied with before an institution can seek and
retain affiliation and recognition. Question then arises whether
there is any limitation on the prescription of regulations for minority
educational institutions. So far as this aspect is concerned, the C
authority prescribing the regulations must bear in mind that the
Constitution has guaranteed a fundamental right to the minorities
for establishing and administering their educational institutions.
Regulations made by the authority concerned should not impinge
upon that right. Balance has, therefore, to be kept between the
D
two objectives, that of ensuring the standard of excellence of the
institution and that of preserving the right of the minorities to
establish and administer their educational institutions. Regulations
which embrace and reconcile the two objectives can be considered
to be reasonable.
… … … E

103. Another conclusion which follows from what has been
discussed above is that a law which interferes with a minority’s
choice of qualified teachers or its disciplinary control over teachers
and other members of the staff of the institution is void as being
violative of Article 30(1). It is, of course, permissible for the State F
and its educational authorities to prescribe the qualifications of
teachers, but once the teachers possessing the requisite
qualifications are selected by the minorities for their educational
institutions, the State would have no right to veto the selection of
those teachers. The selection and appointment of teachers for an G
educational institution is one of the essential ingredients of the
right to manage an educational institution and the minorities can
plainly be not denied such right of selection and appointment
without infringing Article 30(1). In the case of Rev. Father W.
Proost11 this Court while dealing with Section 48-A of the Bihar
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236 SUPREME COURT REPORTS [2020] 1 S.C.R.

A Universities Act observed that the said provision completely took
away the autonomy of the governing body of the college and
virtually vested the control of the college in the University Service
Commission. The petitioners in that case were, therefore, held
entitled to the protection of Article 30(1) of the Constitution. The
provisions of that section have been referred to earlier. According
B
to the section, subject to the approval of University appointment,
dismissals, removals, termination of service or reduction in rank
of teachers of an affiliated college not belonging to the State
Government would have to be made by the governing body of the
college on the recommendation of the University Service
C Commission. The section further provided that the said Commission
would be consulted by the governing body of a college in all
disciplinary matters affecting teachers of the college and no action
would be taken against or any punishment imposed upon a teacher
of a college otherwise than in conformity with the findings of the
Commission.
D
104. In the case of D.A.V. College which was affiliated to the
Guru Nanak University, Statute 17 framed under the Guru Nanak
University (Amritsar) Act inter alia provided that the staff initially
appointed shall be approved by the Vice-Chancellor and that all
subsequent changes shall be reported to the University for Vice-
E Chancellor’s approval. This Court held that Statute 17 interfered
with the right of management of the petitioner colleges and, as
such, offended Article 30(1).
105. Although disciplinary control over the teachers of a minority
educational institution would be with the governing council,
F regulations, in my opinion, can be made for ensuring proper
conditions of service of the teachers and for securing a fair
procedure in the matter of disciplinary action against the teachers.
Such provisions which are calculated to safeguard the interest of
teachers would result in security of tenure and thus inevitably
G attract competent persons for the posts of teachers. Such a
provision would also eliminate a potential cause of frustration
amongst the teachers. Regulations made for this purpose should
be considered to be in the interest of minority educational
institutions and as such they would not violate Article 30(1).”

H (Emphasis supplied)
SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI 237
RAHAMANIA HIGH MADRASAH [UDAY UMESH LALIT, J.]

22.4 In his concurring view, Mathew, J. speaking for himself and A
Chandrachud, J. (as the learned Chief Justice, then was) also dealt with
the extent to which the regulations could be prescribed, as under:-
“174. We find it impossible to subscribe to the proposition that
State necessity is the criterion for deciding whether a regulation
imposed on an educational institution takes away or abridges the B
right under Article 30(1). If a legislature can impose any regulation
which it thinks necessary to protect what in its view is in the
interest of the State or society, the right under Article 30(1) will
cease to be a fundamental right. It sounds paradoxical that a right
which the Constitution makers wanted to be absolute can be
subjected to regulations which need only satisfy the nebulous and C
elastic test of State necessity. The very purpose of incorporating
this right in Part III of the Constitution in absolute terms in marked
contrast with the other fundamental rights was to withdraw it
from the reach of the majority. To subject the right today to
regulations dictated by the protean concept of State necessity as D
conceived by the majority would be to subvert the very purpose
for which the right was given.
175. What then are the additional regulations which can legitimately
be imposed upon an educational institution established and
administered by a religious or linguistic minority which imparts E
general secular education and seeks recognition or affiliation?
176. Recognition or affiliation is granted on the basis of the
excellence of an educational institution, namely, that it has reached
the educational standard set up by the university. Recognition or
affiliation is sought for the purpose of enabling the students in an F
educational institution to sit for an examination to be conducted
by the university and to obtain a degree conferred by the university.
For that purpose, the students should have to be coached in such
a manner so as to attain the standard of education prescribed by
the university. Recognition or affiliation creates an interest in the
university to ensure that the educational institution is maintained G
for the purpose intended and any regulation which will subserve
or advance that purpose will be reasonable and no educational
institution established and administered by a religious or linguistic
minority can claim recognition or affiliation without submitting to
those regulations. That is the price of recognition or affiliation: but H
238 SUPREME COURT REPORTS [2020] 1 S.C.R.

A this does not mean that it should submit to a regulation stipulating
for surrender of a right or freedom guaranteed by the Constitution,
which is unrelated to the purpose of recognition or affiliation. In
other words, recognition or affiliation is a facility which the
university grants to an educational institution, for the purpose of
enabling the students there to sit for an examination to be conducted
B
by the university in the prescribed subjects and to obtain the degree
conferred by the university, and therefore, it stands to reason to
hold that no regulation which is unrelated to the purpose can be
imposed. If, besides recognition or affiliation, an educational
institution conducted by a religious minority is granted aid, further
C regulations for ensuring that the aid is utilized for the purpose for
which it is granted will be permissible. The heart of the matter is
that no educational institution established by a religious or linguistic
minority can claim total immunity from regulations by the legislature
or the university if it wants affiliation or recognition; but the
character of the permissible regulations must depend upon their
D
purpose. As we said, such regulations will be permissible if they
are relevant to the purpose of securing or promoting the object of
recognition or affiliation. There will be border line cases where it
is difficult to decide whether a regulation really subserves the
purpose of recognition or affiliation. But that does not affect the
E question of principle. In every case, when the reasonableness of
a regulation comes up for consideration before the Court, the
question to be asked and answered is whether the regulation is
calculated to subserve or will in effect subserve the purpose of
recognition or affiliation, namely, the excellence of the institution
as a vehicle for general secular education to the minority
F
community and to other persons who resort to it. The question
whether a regulation is in the general interest of the public has no
relevance, if it does not advance the excellence of the institution
as a vehicle for general secular education as, exhypothesi, the
only permissible regulations are those which secure the
G effectiveness of the purpose of the facility, namely, the excellence
of the educational institutions in respect of their educational
standards. This is the reason why this Court has time and again
said that the question whether a particular regulation is calculated
to advance the general public interest is of no consequence if it is
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SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI 239
RAHAMANIA HIGH MADRASAH [UDAY UMESH LALIT, J.]

not conducive to the interests of the minority community and those A
persons who resort to it.
… … …
182. It is upon the principal and teachers of a college that the tone
and temper of an educational institution depend. On them would
depend its reputation, the maintenance of discipline and its B
efficiency in teaching. The right to choose the principal and to
have the teaching conducted by teachers appointed by the
management after an overall assessment of their outlook and
philosophy is perhaps the most important facet of the right to
administer an educational institution. We can perceive no reason C
why a representative of the University nominated by the Vice-
Chancellor should be on the Selection Committee for recruiting
the Principal or for the insistence of head of the department besides
the representative of the University being on the Selection
Committee for recruiting the members of the teaching staff. So
long as the persons chosen have the qualifications prescribed by D
the University, the choice must be left to the management. That is
part of the fundamental right of the minorities to administer the
educational institution established by them.”
(Emphasis supplied)
E
22.5 In his concurring opinion, Beg, J. (as the learned Chief Justice
then was) however struck a slightly different chord. At the outset he
stated:-
197. … … I would, however, like to point out that, as rights and
duties are correlative, it follows, from the extent of this wider F
right of a minority under Article 30(1) to impart even general or
non-denominational secular education to those who may not follow
its culture or subscribe to its beliefs, that, when a minority Institution
decides to enter this wider educational sphere of national education,
it, by reason of this free choice itself, could be deemed to opt to
adhere to the needs of the general pattern of such education in G
the country, at least whenever that choice is made in accordance
with statutory provisions. Its choice to impart an education intended
to give a secular orientation or character to its education
necessarily entails its assent to the imperative needs of the choice
made by the State about the kind of “secular” education which
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240 SUPREME COURT REPORTS [2020] 1 S.C.R.

A promotes national integration or the elevating objectives set out in
the preamble to our Constitution, and the best way of giving it. If
it is part of a minority’s rights to make such a choice it should also
be part of its obligations, which necessarily follow from the choice,
to adhere to the general pattern. The logical basis of such a choice
is that the particular minority Institution, which chooses to impart
B
such general secular education, prefers that higher range of
freedom where, according to the poet Rabindranath Tagore, “the
narrow domestic walls” which constitute barriers between various
sections of the nation will crumble and fall. … …”
22.5.1 In his view, third set of provisions namely Sections 51A
C and 52A did not constitute any unreasonable encroachment on the essence
of the rights under Article 30(1) of the Constitution. It was observed:-
“212. Section 51-A of the Act appears to me to lay down general
conditions for the dismissal, removal, reduction in rank and
termination of services of members of the staff of all colleges to
D which it applies. Again, we have not to consider here either the
wisdom or unwisdom of such a provision or the validity of any
part of Section 51-A of the Act on the ground that it violates any
fundamental right other than the ones conferred by Article 30(1)
of the Constitution. If, as I have indicated above, a greater degree
E of interference with the right to administer or manage an institution
can be held to be permissible as a logical consequence of the
exercise of an option of a minority for an institution governed by a
statute, with all its benefits as well as disadvantages, it seems to
me that provisions of Section 51-A do not constitute an
unreasonable encroachment on the essence of rights of a minority
F institution protected by Article 30(1) of the Constitution which
consists of freedom of choice. For similar reasons, I do not think
that Section 52-A of the Act constitutes an infringement of the
special minority rights under Article 30(1) of the Constitution when
the institution opts for a statutory right which necessarily involves
G statutory restrictions. Of course, if these provisions could be held
to be invalid on any grounds as against all affiliated colleges,
whether they are administered by minorities or majorities in a
State, they could be held to be invalid against the petitioning College
too on those grounds. But, as I have already said, we are not
concerned here with such grounds or questions at all.”
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SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI 241
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22.5.2 Beg, J., then considered all previous decisions of this Court A
and made following observations:-
“221. Evidently, what was meant was that the right to exclusive
management of the institution is separable from the right to
determine the character of education and its standards. This may
explain why “standards” of education were spoken as “not part B
of management” at all. It meant that the right to manage, having
been conferred in absolute terms, could not be interfered with at
all although the object of that management could be determined
by a general pattern to be laid down by the State which could
prescribe the syllabi and standards of education. Speaking for
myself, I find it very difficult to separate the objects and standards C
of teaching from a right to determine who should teach and what
their qualifications should be. Moreover, if the “standards of
education” are not part of management, it is difficult to see how
they are exceptions to the principle of freedom of management
from control. Again, if what is aimed at directly is to be distinguished D
from an indirect effect of it, the security of tenure of teachers and
provisions intended to ensure fair and equitable treatment for them
by the management of an institution would also not be directly
aimed at interference with its management. They could more
properly be viewed as designed to improve and ensure the
excellence of teachers available at the institution, and, therefore, E
to raise the general standard of education. I think that it is enough
for us to distinguish this case on the ground that the provisions to
be interpreted by us are different, although, speaking for myself, I
feel bound to say, with great respect, that I am unable to accept
every proposition found stated there as correct. In that case, the F
provisions of the Kerala University Act 9 of 1969, considered
there were inescapable for the minority institutions which claimed
the right to be free from their operation. As I have already
observed, in the case before us, Section 38-B of the Act provides
the petitioning College before us with a practically certain mode
of escape from the compulsiveness of provisions other than G
Sections 5, 40 and 41 of the Act if claims made on its behalf are
correct.
… … …

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242 SUPREME COURT REPORTS [2020] 1 S.C.R.

A 229. It may be that Article 30(1) of the Constitution is a natural
result of the feeling of insecurity entertained by the minorities
which had to be dispelled by a guarantee which could not be
reduced to a “teasing illusion”. But, is it anything more than an
illusion to view the choice of a minority as to what it does with its
educational institution as a matter of unconcern and indifference
B
to the whole organised society which the State represents?”
… … …
232. Even if Article 30(1) of the Constitution is held to confer
absolute and unfettered rights of management upon minority
C institutions, subject only to absolutely minimal and negative controls
in the interests of health and law and order, it could not be meant
to exclude a greater degree of regulation and control when a
minority institution enters the wider sphere of general secular and
non-denominational education, largely employs teachers who are
not members of the particular minority concerned, and when it
D derives large parts of its income from the fees paid by those who
are not members of the particular minority in question. Such greater
degree of control could be justified by the need to secure the
interests of those who are affected by the management of the
minority institution and the education it imparts but who are not
E members of the minority in management. In other words, the
degree of reasonably permissible control must vary from situation
to situation. For the reasons already given above, I think that,
apart from Sections 5, 40 and 41 of the Act, which directly and
unreasonably impinge upon the rights of the petitioning minority
managed college, protected by Article 30(1) of the Constitution, I
F do not think that the other provisions have that effect. On the
situation under consideration before us, the minority institution
affected by the enactment has, upon the claims put forward on its
behalf, a means of escape from the impugned provisions other
than Sections 5, 40 and 41 of the Act by resorting to Section 38-B
G of the Act.”
22.6 In his dissenting view, Dwivedi, J. expressed with regard to
the extent of regulatory power as under:-
“266. The extent of regulatory power of the State would vary
according to various types of educational institutions established
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RAHAMANIA HIGH MADRASAH [UDAY UMESH LALIT, J.]

by religious and linguistic minorities. Educational institutions may A
be classified in several ways: (1) According to the nature of
instruction which is being imparted by the minorities. It may be
religious, cultural and linguistic instruction or secular general
education or mixed; (2) According to grant of aid and recognition
by the State. Some institutions may receive aid; the others may
B
not. Similarly, some institutions may receive recognition; the others
may not. There may be some others which may receive both aid
and recognition; some others may receive neither aid nor
recognition. (3) According to the standard of secular general
education which is being imparted in the institutions — primary,
secondary and higher. (4) According to the nature of education C
such as military academy, marine engineering in which the State
is vitally interested for various reasons.
267. The extent of regulatory power may vary from class to class
as well as within a class. For instance, institutions receiving aid
and recognition may be subject to greater regulation than those D
which receive neither. Similarly, institutions imparting secular
general education may be subject to greater regulation than those
which are imparting religious, cultural and linguistic instruction
solely.
268. An educational institution would consist of: (1) the managing E
body of the institution, (2) teaching staff, (3) non-teaching staff,
(4) students; and (5) property of various kinds. Here again, the
extent of the regulatory power may vary from one constituent to
another. For instance, the teaching staff and property may be
subject to greater regulation than the composition of the managing
body. Plainly, no minority educational institution can be singled out F
for treatment different from one meted out to the majority
educational institution. A regulation meeting out such a
discriminatory treatment will be obnoxious to Article 30(1).”
22.7 The operative part of the Order passed by this Court was:-
G
“304. By majority Sections 33-A, 40, 41, 51-A(1)(b), 51-A(2)(b)
and 52-A of the Gujarat University Act, 1949 as amended do not
apply to institutions established and administered by linguistic and
religious minorities. … … …”

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244 SUPREME COURT REPORTS [2020] 1 S.C.R.

A 23. In The Gandhi Faiz-e-am College, Shahjahanpur v.
University of Agra and Another 13, a Bench of three Judges of this
Court considered whether Statute 14A framed by University of Agra
infringed fundamental rights of the minority community under Article 30
of the Constitution. The facts as set out in para 3 were as under:-
B “3. The appellant is a registered society formed by the members
of the Muslim community at Shahjahanpur. Indubitably, the
community ranks as a minority in the country and the educational
institution run by it has been found to be what may loosely be
called a “minority institution”, within the constitutional compass
of Article 30. The earlier history of the institution need not detain
C us and a rapid glance at its evolution is enough. The A.V. Middle
School was the offspring of the effort of the Muslim minority
resident in Shahjahanpur district. It, later became a high school
and afterwards attained the status of an Intermediate college.
Eventually it blossomed into a degree college affiliated to the
D University of Agra. In 1948, on the assassination of the Father of
the Nation, this college was commemoratively renamed as Gandhi
Faiz-e-am College. In August 1964, an application was made on
behalf of the college management to the University for permission
to start teaching in courses of study including Sociology, Sanskrit,
Arabic, Military Studies, Drawing and Painting. The University
E entertained the thought that a new organisational discipline must
be brought into the institution and insisted, as a condition of
recognition of these additional subjects as course of study, on certain
mutations in the administrative body of the college. The bone of
contention before us, as was before the High Court, is that this
F prescription by the University, in tune with Statute 14A framed by
it, is an invasion of the fundamental right guaranteed to the minority
community under Article 30 of the Constitution of India. The High
Court has negatived the plea of the management and the appeal
issues from that decision.”
G 23.1 Statute 14A as quoted in para 6 was to the following effect:-
“14A. Each college, already affiliated or when affiliated, which is
not maintained exclusively by Government must be under the
Management of a regular constituted Governing body (which term

13
(1975) 2 SCC 283
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RAHAMANIA HIGH MADRASAH [UDAY UMESH LALIT, J.]

includes Managing Committee) on which the staff of the college A
shall be represented by the Principal of the college and at least
one representative of the teachers of the college to be appointed
by rotation in order of seniority determined by length of service in
the college, who shall hold office for one academic year.”
23.2 Krishna Iyer, J. speaking for himself and Gupta, J. found the B
provision calculated to promote excellence of the Institution and therefore
rejected the challenge. The relevant observations were:-
“16. The discussion throws us back to a closer study of Statute
14A to see if it cuts into the flesh of the management’s right or
merely tones up its health and habits. The two requirements the C
University asks for are that the managing body (whatever its name)
must take in (a) the Principal of the College; (b) its seniormost
teacher. Is this desideratum dismissible as biting into the autonomy
of management or tenable as ensuring the excellence of the
institution without injuring the essence of the right? On a careful
reflection and conscious of the constitutional dilemma, we are D
inclined to the view that this case falls on the valid side of the
delicate line. Regulation which restricts is bad; but regulation which
facilitates is good. Where does this fine distinction lie? No rigid
formula is possible but a flexible test is feasible. Where the object
and effect is to improve the tone and temper of the administration E
without forcing on it a stranger, however superb his virtues be,
where the directive is not to restructure the governing body but to
better its performance by a marginal catalytic induction, where
no external authority’s fiat or approval or outside nominee is made
compulsory to validate the Management Board but inclusion of
an internal key functionary appointed by the autonomous F
management alone is asked for, the provision is salutary and saved,
being not a diktat eroding the freedom of the freedom.
… … …
24. In all these cases administrative autonomy is imperilled G
transgressing purely regulatory limits. In our case autonomy is
virtually left intact and refurbishing, not restructuring, is prescribed.
The core of the right is not gouged out at all and the regulation is
at once reasonable and calculated to promote excellence of the
institution — a text book instance of constitutional conditions.”
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246 SUPREME COURT REPORTS [2020] 1 S.C.R.

A 23.3. Mathew, J. authored a dissenting opinion. Relying upon
various views expressed in Ahmedabad St. Xavier’s College5 including
one rendered by the learned Judge himself, it was observed :-
“41. The determination of the composition of the body to administer
the educational institution established by a religious minority must
B be left to the minority as that is the core of the right to administer.
Regulations to prevent maladministration by that body are
permissible. As the right to determine the composition of the body
which will administer the educational institution is the very essence
of the right to administer guaranteed to the religious or linguistic
minority under Article 30(1), any interference in that area by an
C outside authority cannot be anything but an abridgment of that
right. The religious or linguistic minority must be given the freedom
to constitute the agency through which it proposes to administer
the educational institution established by it as that is what Article
30(1) guarantees. The right to shape its creation is one thing: the
D right to regulate the manner in which it would function after it has
come into being is another. Regulations are permissible to prevent
maladministration but they can only relate to the manner of
administration after the body which is to administer has come into
being.
E 42. The provisions of Statute 14A are in pari materia with those
of Section 33-A(1)(a) of the Act which fell for consideration in
Ahmedabad St. Xavier’s College case (supra) except that only
the principal and the seniormost member of the staff alone are
required to be included in the managing committee of the college
in question here. But, in principle, that makes no difference. The
F principle, as I said, is that the minority community has the exclusive
right to vest the administration of the college in a body of its own
choice, and any compulsion from an outside authority to include
any other person in that body is an abridgment of its fundamental
right to administer the educational institution.”
G 23.4 In terms of the decision of the majority, the challenge was
negated and Statute 14A was not found to be vulnerable or void.
24. In Lily Kurian v. Sr. Lewina and Others14, a Bench of five
Judges of this Court was called upon to consider whether the appellate
14
H (1979) 2 SCC 124
SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI 247
RAHAMANIA HIGH MADRASAH [UDAY UMESH LALIT, J.]

power conferred upon the Vice Chancellor of the University15 would A
encroach upon the rights of a minority institution to enforce and ensure
discipline over its teachers.
The matter was considered by this Court as under:-
“51. An analysis of the judgments in St. Xaviers College case
clearly shows that seven out of nine judges held that the provisions B
contained in clause (b) of sub-sections (1) and (2) of Section 51-
A of the Act were not applicable to an educational institution
established and managed by religious or linguistic minority as they
interfere with the disciplinary control of the management over the
staff of its educational institutions. The reasons given by the C
majority were that the power of the management to terminate the
services of any member of the teaching or other academic and
non-academic staff was based on the relationship between an
employer and his employees and no encroachment could be made
on this right to dispense with their services under the contract of
employment, which was an integral part of the right to administer, D
and that these provisions conferred on the Vice-Chancellor or
any other officer of the University authorised by him, uncanalised,
unguided and unlimited power to veto the actions of the
management. According to the majority view, the conferral of
such blanket power on the Vice-Chancellor and his nominee was E
an infringement of the right of administration guaranteed under
Article 30(1) to the minority institutions, religious and linguistic.
The majority was accordingly of the view that the provisions
contained in clause (b) of sub-sections (1) and (2) of Section 51-
A of the Act had the effect of destroying the minority institution’s
disciplinary control over the teaching and non-teaching staff of F
the college as no punishment could be inflicted by the management
on a member of the staff unless it gets approval from an outside
authority like the Vice-Chancellor or an officer of the University
authorised by him. On the contrary, the two dissenting Judges
were of the view that these provisions were permissive regulatory G
measures.
52. The power of appeal conferred on the Vice-Chancellor under
Ordinance 33(4) is not only a grave encroachment on the
15
By Ordinance 33 against any order passed by the Management taking disciplinary
action against a teacher. H
248 SUPREME COURT REPORTS [2020] 1 S.C.R.

A institution’s right to enforce and ensure discipline in its
administrative affairs but it is uncanalised and unguided in the
sense that no restrictions are placed on the exercise of the power.
The extent of the appellate power of the Vice-Chancellor is not
defined, and, indeed, his powers are unlimited. The grounds on
which the Vice-Chancellor can interfere in such appeals are also
B
not defined. He may not only set aside an order of dismissal of a
teacher and order his reinstatement, but may also interfere with
any of the punishments enumerated in Items (ii) to (v) of Ordinance
33(2), that is to say, he can even interfere against the infliction of
minor punishments. In the absence of any guide-lines, it cannot
C be held that the power of the Vice-Chancellor under Ordinance
33(4) was merely a check on maladministration.
53. As laid down by the majority in St. Xaviers College case,
such a blanket power directly interferes with the disciplinary control
of the managing body of a minority educational institution over its
D teachers. The majority decision in St. Xaviers College case
squarely applies to the facts of the present case and accordingly
it must be held that the impugned Ordinance 33(4) of the University
of Kerala is violative of Article 30(1) of the Constitution. If the
conferral of such power on an outside authority like the Vice-
Chancellor, which while maintaining the formal character of a
E minority institution destroys the power of administration, that is,
its disciplinary control, is held justifiable because it is in the public
and national interest, though not in its interest as an educational
institution, the right guaranteed by Article 30(1) will be, to use the
well-known expression, a “teasing illusion”, a “promise of
F unreality”.
25. In All Saints High School, Hyderabad and Others v.
Government of Andhra Pradesh and Others16, the question that arose
for consideration before a Bench of three Judges of this Court, was
whether certain provisions of Andhra Pradesh Recognised Private
G Educational Institutions (Control) Act, 1975 offended fundamental rights
conferred on minorities by Article 30(1). In terms of Sections 3(1) and
3(2), no teacher employed in any private educational institution could be
dismissed or removed or reduced in rank except with the prior approval
of the competent authority; and in terms of Section 3(2) such approval
16
H (1980) 2 SCC 478
SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI 249
RAHAMANIA HIGH MADRASAH [UDAY UMESH LALIT, J.]

could be granted if the competent authority was satisfied that there A
were adequate and reasonable grounds. Section 3(3)(a) provided that
no teacher could be placed under suspension except when an enquiry
into the gross misconduct of such teacher was contemplated and as per
terms of Section 3(3)(b), no suspension could remain in force for more
than two months if the enquiry was not completed within that period.
B
25.1. Chandrachud, C.J. agreed with Fazal Ali, J. that Sections
3(1) and 3(2) would offend Article 30(1) and as such could not be applied
to minority institutions. The learned Chief Justice however did not agree
with Faizal Ali, J. insofar as Sections 3(3)(a) and 3(3)(b) but agreed with
Kailasam, J. to hold that those provisions did not offend Article 30(1).
Faizal Ali, J. had found all the provisions to be invalid while Kailasam, J. C
had found the concerned provisions to be valid and not violative of Article
30(1) of the Constitution.
26. In Frank Anthony Public School Employees’ Assoication
v. Union of India and others17 validity of Section 12 of Delhi School
Education Act on the strength of which certain provisions of said Act D
would not apply to an unaided minority school, was under challenge. It
was submitted by the petitioners that the teachers and other employees
working in an unaided school were entitled to same pay-scale, allowances
and benefits as were enjoyed by persons employed in schools governed
by the provisions of said Act and to the extent Section 12 excluded E
applicability of some of the provisions of the Act, said Section was hit by
Article 14 of the Constitution. The argument raised on behalf of the
institution was :-
“14. … …the right to appoint members of staff being an undoubted
right of the management and the right to stipulate their salaries F
and allowances etc. being part of their right to appoint, such right
could not be taken away from the management of a minority
institution.”
26.1 While allowing the petition this Court observed:
“16. The excellence of the instruction provided by an institution G
would depend directly on the excellence of the teaching staff, and
in turn, that would depend on the quality and the contentment of
the teachers. Conditions of service pertaining to minimum
qualifications of teachers, their salaries, allowances and other
17
(1986) 4 SCC 707 H
250 SUPREME COURT REPORTS [2020] 1 S.C.R.

A conditions of service which ensure security, contentment and
decent living standards to teachers and which will consequently
enable them to render better service to the institution and the
pupils cannot surely be said to be violative of the fundamental
right guaranteed by Article 30(1) of the Constitution. The
management of a minority Educational Institution cannot be
B
permitted under the guise of the fundamental right guaranteed by
Article 30(1) of the Constitution, to oppress or exploit its employees
any more than any other private employee. Oppression or
exploitation of the teaching staff of an educational institution is
bound to lead, inevitably, to discontent and deterioration of the
C standard of instruction imparted in the institution affecting adversely
the object of making the institution an effective vehicle of education
for the minority community or other persons who resort to it. The
management of minority institution cannot complain of invasion
of the fundamental right to administer the institution when it denies
the members of its staff the opportunity to achieve the very object
D
of Article 30(1) which is to make the institution an effective vehicle
of education.
(Emphasis supplied)
… … …
E 23. We must refer to the submissions of Mr Frank Anthony
regarding the excellence of the institution and the fear that the
institution may have to close down if they have to pay higher
scales of salary and allowances to the members of the staff. As
we said earlier the excellence of the institution is largely dependent
F on the excellence of the teachers and it is no answer to the demand
of the teachers for higher salaries to say that in view of the high
reputation enjoyed by the institution for its excellence, it is
unnecessary to seek to apply provisions like Section 10 of the
Delhi School Education Act to the Frank Anthony Public School.
On the other hand, we should think that the very contribution made
G by the teachers to earn for the institution the high reputation that
it enjoys should spur the management to adopt at least the same
scales of pay as the other institutions to which Section 10 applies.
Regarding the fear expressed by Shri Frank Anthony that the
institution may have to close down we can only hope that the
H management will do nothing to the nose to spite the face, merely
SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI 251
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to “put the teachers in their proper place”. The fear expressed by A
the management here has the same ring as the fear expressed
invariably by the management of every industry that disastrous
results would follow which may even lead to the closing down of
the industry if wage scales are revised.”
27. In Bihar State Madarasa Education Board, Patna v. B
Madarasa Hanfia Arabic College, Jamalia and others 18 the
declaration by the High Court that Section 7(2)(n) was unconstitutional
as it conferred power on the Board to dissolve the Managing Committee
of a Madarasa, was under challenge. The decision was upheld by this
Court observing as under:
C
“6. The question which arises for consideration is whether Section
7(2)(n) which confers power on the Board to dissolve the
Managing Committee of an aided and recognised Madarasa
institution violates the minorities constitutional right to administer
its educational institution according to their choice. This Court
has all along held that though the minorities have right to establish D
and administer educational institution of their own choice but they
have no right to maladminister and the State has power to regulate
management and administration of such institutions in the interest
of educational need and discipline of the institution. Such regulation
may have indirect effect on the absolute right of minorities but E
that would not violate Article 30(1) of the Constitution as it is the
duty of the State to ensure efficiency in educational institutions.
The State has, however, no power to completely take over the
management of a minority institution. Under the guise of regulating
the educational standards to secure efficiency in institution, the
State is not entitled to frame rules or regulations compelling the F
management to surrender its right of administration. In State of
Kerala v. Very Rev. Mother Provincial, Section 63(1) of the
Kerala University Act, 1969 which conferred power on the
government to take over the management of a minority institution
on its default in carrying out the directions of the State Government G
was declared ultra vires on the ground that the provisions interfered
with the constitutional right of a minority to administer its institution.
Minority institutions cannot be allowed to fall below the standard
of excellence on the pretext of their exclusive right of management
18
(1990) 1 SCC 428 H
252 SUPREME COURT REPORTS [2020] 1 S.C.R.

A but at the same time their constitutional right to administer their
institutions cannot be completely taken away by superseding or
dissolving Managing Committee or by appointing ad hoc
committees in place thereof. In the instant case Section 7(2)(n) is
clearly violative of constitutional right of minorities under Article
30(1) of the Constitution insofar as it provides for dissolution of
B
Managing Committee of a Madarasa. We agree with the view
taken by the High Court.”
28. In St. Stephen’s College vs. University of Delhi19 a Bench
of five Judges of this Court had an occasion to consider the admission
process adopted by two aided minority institutions viz. St. Stephen’s
C College at Delhi and Allahabad Agricultural Institute at Naini. The factual
context as summed-up in the majority judgment authored by Shetty, J.,
was as under:-
“68. It is not in dispute that St. Stephen’s College and Allahabad
Agricultural Institute are receiving grant-in-aid from the
D government. St. Stephen’s College gives preference to Christian
students. The Allahabad Agricultural Institute reserves 50 per cent
of the seats for Christian students. The Christian students admitted
by preference or against the quota reserved are having less merit
in the qualifying examination than the other candidates. The other
E candidsates with more merit are denied admission on the ground
that they are not Christians.
69. It was argued for the University and the Students Union that
since both the institutions are receiving State aid, the institutional
preference for admission based on religion is violative of Article
F 29(2) of the Constitution. The institutions shall not prefer or deny
admission to candidates on ground of religion. For institutions, on
the other hand, it was claimed that any preference given to the
religious minority candidates in their own institutions cannot be a
discrimination falling under Article 29(2). The institutions are
established for the benefit of their community and if they are
G prevented from admitting their community candidates, the purpose
of establishing the institutions would be defeated. The minorities
are entitled to admit their candidates by preference or by
reservation. They are also entitled to admit them to the exclusion

19
(1992) 1 SCC 558
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of all others and that right flows from the right to establish and A
administer educational institutions guaranteed under Article 30(1).”
28.1 The majority judgment dealt with the submissions raised by
the institution as under:-
“80. Equally, it would be difficult to accept the second submission
that the minorities are entitled to establish and administer B
educational institutions for their exclusive benefit. The choice of
institution provided in Article 30(1) does not mean that the
minorities could establish educational institution for the benefit of
their own community people. Indeed, they cannot. It was pointed
out in Re, Kerala Education Bill that the minorities cannot C
establish educational institution only for the benefit of their
community. If such was the aim, Article 30(1) would have been
differently worded and it would have contained the words “for
their own community”. In the absence of such words it is legally
impermissible to construe the article as conferring the right on the
minorities to establish educational institution for their own benefit. D

81. Even in practice, such claims are likely to be met with
considerable hostility. It may not be conducive to have a relatively
homogeneous society. It may lead to religious bigotry which is the
bane of mankind. In the nation building with secular character
sectarian schools or colleges, segregated faculties or universities E
for imparting general secular education are undesirable and they
may undermine secular democracy. They would be inconsistent
with the central concept of secularism and equality embedded in
the Constitution. Every educational institution irrespective of
community to which it belongs is a ‘melting pot’ in our national F
life. The students and teachers are the critical ingredients. It is
there they develop respect for, and tolerance of, the cultures and
beliefs of others. It is essential therefore, that there should be
proper mix of students of different communities in all educational
institutions.”
G
28.2 The relaxation given by St. Stephen’s College to Christian
students was dealt with as under:-
“50. To Christian students, relaxation up to 10 per cent is given.
The Scheduled Castes/Scheduled Tribes candidates who are having
a minimum of 50 per cent of marks are called for interview for
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254 SUPREME COURT REPORTS [2020] 1 S.C.R.

A selection to Honours courses. For B.A. pass course, a further
concession to them is granted and the qualifying marks are reduced
even below 50 per cent. As far as sportsmen and sportswomen
are concerned, national or State level players are given concession
normally up to 10 per cent and in exceptional cases up to 15 per
cent or even more. However, a Christian student, who is below
B
the cut-off percentage by more than 10 per cent is never called
for interview.
51. The actual working of the concession given by the College
and the result achieved thereon in several years are set out in
Annexure I to Writ Petition No. 1868 of 1980. The Christian
C students who get concession up to 10 per cent and thereby get
preferential admission are only 6 per cent to 10 per cent. They
are also admitted in accordance with the standard prescribed by
the University and none who falls below the standard has ever
been admitted to the College.”
D 28.3 The majority Judgment, then, considered the matter from the
perspective of “Rights of Minorities and Balancing Interest” and
observed:-
“101. Laws carving out the rights of minorities in Article 30(1)
however, must not be arbitrary, invidious or unjustified; they must
E have a reasonable relation between the aim and the means
employed. The individual rights will necessarily have to be balanced
with competing minority interests. In Sidhajbhai case10 the
government order directing the minority run college to reserve 80
per cent of seats for government nominees and permitting only 20
F per cent of seats for the management with a threat to withhold
the grant-in-aid and recognition was struck down by the Court as
infringing the fundamental freedom guaranteed by Article 30(1).
Attention may also be drawn to Article 337 of the Constitution
which provided a special concession to Anglo-Indian community
for ten years from the commencement of the Constitution. Unlike
G Article 30(2) it conferred a positive right on the Anglo-Indian
community to get grants from the government for their educational
institutions, but subject to the condition that at least 40 per cent of
annual admission were made available to members of other
communities.
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RAHAMANIA HIGH MADRASAH [UDAY UMESH LALIT, J.]

102. In the light of all these principles and factors, and in view of A
the importance which the Constitution attaches to protective
measures to minorities under Article 30(1), the minority aided
educational institutions are entitled to prefer their community
candidates to maintain the minority character of the institutions
subject of course to conformity with the University standard. The
B
State may regulate the intake in this category with due regard to
the need of the community in the area which the institution is
intended to serve. But in no case such intake shall exceed 50 per
cent of the annual admission. The minority institutions shall make
available at least 50 per cent of the annual admission to members
of communities other than the minority community. The admission C
of other community candidates shall be done purely on the basis
of merit.”
28.4 It was also observed that regulations which serve the interest
of students and teachers and preserve the uniformity in standards of
education amongst the affiliated institutions could validly be made. The D
relevant discussion in para 59 was as under:-
“59. The need for a detailed study on this aspect is indeed not
necessary. The right to minorities whether religious or linguistic,
to administer educational institutions and the power of the State
to regulate academic matters and management is now fairly well E
settled. The right to administer does not include the right to
maladminister. The State being the controlling authority has right
and duty to regulate all academic matters. Regulations which will
serve the interests of students and teachers, and to preserve the
uniformity in standards of education among the affiliated institutions
could be made. The minority institutions cannot claim immunity F
against such general pattern and standard or against general laws
such as laws relating to law and order, health, hygiene, labour
relations, social welfare legislations, contracts, torts etc. which
are applicable to all communities. So long as the basic right of
minorities to manage educational institution is not taken away, the G
State is competent to make regulatory legislation. Regulations,
however, shall not have the effect of depriving the right of
minorities to educate their children in their own institution. That is
a privilege which is implied in the right conferred by Article 30(1)”.
(Emphasis supplied) H
256 SUPREME COURT REPORTS [2020] 1 S.C.R.

A 28.5 The dissenting opinion of Kasliwal, J. quoted a passage from
the Constituent Assembly Debates (CAD) touching upon the matter in
issue as under :-
“137. These were Articles 23(1) on the one hand and 23(3)(a)
and 23(3)(b) on the other hand in the Draft Constitution. Firstly,
B Dr B.R. Ambedkar said in relation to draft Article 23(2)
corresponding to the present Article 28 of the Constitution that
even in relation to Articles 30 and 29 the State was completely
free to give or not to give aid to the educational institutions of the
religious or linguistic minorities. He said20:
C “Now, with regard to the second clause I think it has not been
sufficiently well understood. We have tried to reconcile the
claim of a community which has started educational institutions
for the advancement of its own children either in education or
in cultural matters, to permit to give religious instruction in such
institutions; notwithstanding the fact that it receives certain aid
D from the State. The State, of course, is free to give aid, is free
not to give aid; the only limitation we have placed is this, that
the State shall not debar the institution from claiming aid under
its grant-in-aid code merely on the ground that it is run and
maintained by a community and not maintained by a public
E body. We have there provided also a further qualification, that
while it is free to give religious instruction in the institution and
the grant made by the State shall not be a bar to the giving of
such instruction, it shall not give instruction to, or make it
compulsory upon, the children belonging to other communities
unless and until they obtain the consent of the parents of these
F children. That, I think, is a salutary provision. It performs two
functions…
Shri H.V. Kamath: On a point of clarification what about
institutions and schools run by a community or a minority for its
own pupils — not a school where all communities are mixed but a
G school run by the community for its own pupils?
The Hon’ble Dr B.R. Ambedkar: If my friend, Mr Kamath will
read the other article he will see that once an institution, whether
maintained by the community or not, gets a grant, the condition is
20
H VII CAD 884
SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI 257
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that it shall keep the school open to all communities. That provision A
he has not read.”
138. He reaffirmed the freedom of the State to give or not to give
aid to these schools when directly referring to draft Article 23
which is the precursor of the present Articles 29 and 30 as
follows21: B
“I think another thing which has to be borne in reading Article
23 is that it does not impose any obligation or burden upon the
State. It does not say that, when for instance the Madras people
come to Bombay, the Bombay Government shall be required
by law to finance any project of giving education either in Tamil C
language or in Andhra language or any other language. There
is no burden cast upon the State. The only limitation that is
imposed by Article 23 is that if there is a cultural minority which
wants to preserve its language, its script and its culture, the
State shall not by law impose upon it any other culture which
may be either local or otherwise.” D

And, went on to observe that once an institution was receiving
aid, “it must abide by the rigor of Article 29(2) in the matter of admission
of students in the college” and “as already held by me, St. Stephen’s
College and Allahabad Agricultural Institute are not entitled to claim any
preferential right or reservation in favour of students of Christian E
community as they are getting grant-in-aid and as such I do not consider
it necessary to labour any more on the question of deciding as to what
percentage can be considered as reasonable”
29. We must also refer to two decisions of this Court after the
decision in Ahmedabad St. Xaviers College5 where the appointment of F
Principal of a minority educational institution was in question.
29.1 In Board of Secondary Education and Teachers Training
v. Jt. Director of Public Instructions, Sagar and others22, a Bench of
two Judges of this Court observed:
G
“3. The decisions of this Court make it clear that in the matter of
appointment of the Principal, the management of a minority
educational institution has a choice. It has been held that one of

21
VII CAD 923
22
(1998) 8 SCC 555 H
258 SUPREME COURT REPORTS [2020] 1 S.C.R.

A the incidents of the right to administer a minority educational
institution is the selection of the Principal. Any rules which take
away this right of the management have been held to be interfering
with the right guaranteed by Article 30 of the Constitution. In this
case, both Julius Prasad selected by the management and the
third respondent are qualified and eligible for appointment as
B
Principal according to rules. The question is whether the
management is not entitled to select a person of their choice. The
decisions of this Court including the decision in State of Kerala v.
Very Rev. Mother Provincial and Ahmedabad St. Xavier’s
College Society v. State of Gujarat make it clear that this right
C of the minority educational institution cannot be taken away by
any rules or regulations or by any enactment made by the State.
We are, therefore, of the opinion that the High Court was not
right in holding otherwise. The State has undoubtedly the power
to regulate the affairs of the minority educational institutions also
in the interest of discipline and excellence. But in that process,
D
the aforesaid right of the management cannot be taken away,
even if the Government is giving hundred per cent grant. We need
not go into any other question in this appeal.”
(Emphasis supplied)
E 29.2 In N. Ammad v. Manager, Emjay High School and others23
a Bench of two Judges of this Court, while dealing with the issue “whether
the management of a minority school was free to choose and appoint
any qualified person as Headmaster” observed as under:
“18. Selection and appointment of Headmaster in a school (or
F Principal of a college) are of prime importance in administration
of that educational institution. The Headmaster is the key post in
the running of the school. He is the hub on which all the spokes of
the school are set around whom they rotate to generate result. A
school is personified through its Headmaster and he is the focal
point on which outsiders look at the school. A bad Headmaster
G can spoil the entire institution, an efficient and honest Headmaster
can improve it by leaps and bounds. The functional efficacy of a
school very much depends upon the efficiency and dedication of
its Headmaster. This pristine precept remains unchanged despite

23
(1998) 6 SCC 674
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many changes taking place in the structural patterns of education A
over the years.
19. How important is the post of Headmaster of a school has
been pithily stated by a Full Bench of the Kerala High Court in
Aldo Maria Patroni v. E.C. Kesavan. Chief Justice M.S. Menon
has, in a style which is inimitable, stated thus: B
“The post of the headmaster is of pivotal importance in the life
of a school. Around him wheels the tone and temper of the
institution; on him depends the continuity of its traditions, the
maintenance of discipline and the efficiency of its teaching.
The right to choose the headmaster is perhaps the most C
important facet of the right to administer a school, and we
must hold that the imposition of any trammel thereon — except
to the extent of prescribing the requisite qualifications and
experience — cannot but be considered as a violation of the
right guaranteed by Article 30(1) of the Constitution. To hold
otherwise will be to make the right ‘a teasing illusion, a promise D
of unreality’.”
20. The importance of the key role which a Headmaster plays in
the school cannot be better delineated than that. The nine-Judge
Bench in the Ahmedabad St. Xavier’s College Society has
highlighted the importance of the role of the Principal of a college. E
In support of majority view in that decision K.K. Mathew, J. has
observed thus: (SCC pp. 815-16, para 182)
“182. It is upon the principal and teachers of a college that the
tone and temper of an educational institution depend. On them
would depend its reputation, the maintenance of discipline and F
its efficiency in teaching. The right to choose the principal and
to have the teaching conducted by teachers appointed by the
management after an overall assessment of their outlook and
philosophy is perhaps the most important facet of the right to
administer an educational institution.” G
21. H.R. Khanna, J. has adopted a still broader view that even
selection of teachers is of great importance in the right to manage
a school. Learned Judge has stated thus: (SCC p. 789, para 103)

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260 SUPREME COURT REPORTS [2020] 1 S.C.R.

A “The selection and appointment of teachers for an educational
institution is one of the essential ingredients of the right to
manage an educational institution and the minorities can plainly
be not denied such right of selection and appointment without
infringing Article 30(1).”
B 22. Krishna Iyer, J. who dissented from the majority view in
Gandhi Faiz-E-Am College v. University of Agra has,
nevertheless, emphasised the importance of the post of the Principal
in the following words: (SCC p. 293, para 21)
“21. An activist principal is an asset in discharging these duties
C which are inextricably interlaced with academic functions. The
principal is an invaluable insider — the Management’s own
choice — not an outsider answerable to the Vice-Chancellor.
He brings into the work of the Managing Committee that
intimate acquaintance with educational operations and that
necessary expression of student-teacher aspirations and
D complaints which are so essential for the minority institution to
achieve a happy marriage between individuality and
excellence.”
23. Whatever is said about the importance of the post of Principal
of a college vis-à-vis the administration of the institution would in
E pari materia apply to the Headmaster of a school with equal force.
24. If management of the school is not given very wide freedom
to choose the personnel for holding such a key post, subject of
course to the restrictions regarding qualifications to be prescribed
by the State, the right to administer the school would get much
F diminished.”
(Emphasis supplied)
B) Decision in TMA Pai Foundation
30. A Bench of Eleven Judges was constituted to consider
G questions touching upon the rights of Minority Educational Institutions
under Articles 29 and 30 of the Constitution. The reasons why the
Bench of that strength was constituted were set out in brief in paragraph
No.3 of the leading Judgment authored by Kirpal, C.J. as under:

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“3. The hearing of these cases has had a chequered history. Writ A
Petition No. 350 of 1993 filed by the Islamic Academy of Education
and connected petitions were placed before a Bench of five Judges.
As the Bench was prima facie of the opinion that Article 30 did
not clothe a minority educational institution with the power to adopt
its own method of selection and the correctness of the decision of
B
this Court in St. Stephen’s College v. University of Delhi was
doubted, it was directed that the questions that arose should be
authoritatively answered by a larger Bench. These cases were
then placed before a Bench of seven Judges. The questions framed
were recast and on 6-2-1997, the Court directed that the matter
be placed before a Bench of at least eleven Judges, as it was felt C
that in view of the Forty-second Amendment to the Constitution,
whereby “education” had been included in Entry 25 of List III of
Seventh Schedule, the question of who would be regarded as a
“minority” was required to be considered because the earlier case-
law related to the pre-amendment era, when education was only
D
in the State List. When the cases came up for hearing before an
eleven-Judge Bench, during the course of hearing on 19-3-1997,
the following order was passed:
“Since a doubt has arisen during the course of our arguments
as to whether this Bench would feel itself bound by the ratio
propounded in — Kerala Education Bill, 1957, In Re and E
Ahmedabad St. Xavier’s College Society v. State of Gujarat
it is clarified that this sized Bench would not feel itself inhibited
by the views expressed in those cases since the present
endeavour is to discern the true scope and interpretation of
Article 30(1) of the Constitution, which being the dominant F
question would require examination in its pristine purity. The
factum is recorded.”
31. The Bench framed 11 questions. For the present discussion
we are principally concerned with discussion relevant to question Nos.4
and 5. Under heading- “3. In case private institutions can be G
governmental regulations and if so, to what extent?”, the discussion
was under various sub-headings. The first sub-heading was “private
unaided non-minority educational institutions”. Under this sub-heading
para 50 of the leading Judgment enumerated what “the right to establish
and administer” comprises of, as under:
H
262 SUPREME COURT REPORTS [2020] 1 S.C.R.

A “50. The right to establish and administer broadly comprises
the following rights:
(a) to admit students;
(b) to set up a reasonable fee structure;
B (c) to constitute a governing body;
(d) to appoint staff (teaching and non-teaching); and
(e) to take action if there is dereliction of duty on the part of
any employees.”
The other sub-headings were “private unaided professional
C
colleges”, “private aided professional institutions (non-minority)” and
“other aided institutions”. Since the discussion under these sub-headings
as well as the next heading does not strictly deal with the matter in the
context of minority educational institutions, we may turn to the next
heading “5. To what extent can the rights of aided private minority
D institutions to administer be regulated?”
31.1. After discussing about the extent of right under Article 30 of
the Constitution, the leading Judgment considered all the relevant cases
on the point. The following paragraphs are noteworthy:
“90. In the exercise of this right to conserve the language, script
E or culture, that section of the society can set up educational
institutions. The right to establish and maintain educational
institutions of its choice is a necessary concomitant to the right
conferred by Article 30. The right under Article 30 is not absolute.
Article 29(2) provides that, where any educational institution is
F maintained by the State or receives aid out of State funds, no
citizen shall be denied admission on the grounds only of religion,
race, caste, language or any of them. The use of the expression
“any educational institution” in Article 29(2) would (sic not) refer
to any educational institution established by anyone, but which is
maintained by the State or receives aid out of State funds. In
G other words, on a plain reading, State-maintained or aided
educational institutions, whether established by the Government
or the majority or a minority community cannot deny admission to
a citizen on the grounds only of religion, race, caste or language.

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93. Can Article 30(1) be so read as to mean that it contains an A
absolute right of the minorities, whether based on religion or
language, to establish and administer educational institutions in
any manner they desire, and without being obliged to comply with
the provisions of any law? Does Article 30(1) give the religious or
linguistic minorities a right to establish an educational institution
B
that propagates religious or racial bigotry or ill will amongst the
people? Can the right under Article 30(1) be so exercised that it is
opposed to public morality or health? In the exercise of its right,
would the minority while establishing educational institutions not
be bound by town planning rules and regulations? Can they
construct and maintain buildings in any manner they desire without C
complying with the provisions of the building bye-laws or health
regulations?
… … …
105. In Rev. Sidhajbhai Sabhai v. State of Bombay this Court
had to consider the validity of an order issued by the Government D
of Bombay whereby from the academic year 1955-56, 80% of
the seats in the training colleges for teachers in non-government
training colleges were to be reserved for the teachers nominated
by the Government. The petitioners, who belonged to the minority
community, were, inter alia, running a training college for teachers, E
as also primary schools. The said primary schools and college
were conducted for the benefit of the religious denomination of
the United Church of Northern India and Indian Christians
generally, though admission was not denied to students belonging
to other communities. The petitioners challenged the government
order requiring 80% of the seats to be filled by nominees of the F
Government, inter alia, on the ground that the petitioners were
members of a religious denomination and that they constituted a
religious minority, and that the educational institutions had been
established primarily for the benefit of the Christian community.
It was the case of the petitioners that the decision of the G
Government violated their fundamental rights guaranteed by
Articles 30(1), 26(a), (b), (c) and (d), and 19(1)(f) and (g). While
interpreting Article 30, it was observed by this Court at SCR pp.
849-50 as under:

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264 SUPREME COURT REPORTS [2020] 1 S.C.R.

A “All minorities, linguistic or religious have by Article 30(1) an
absolute right to establish and administer educational institutions
of their choice; and any law or executive direction which seeks
to infringe the substance of that right under Article 30(1) would
to that extent be void. This, however, is not to say that it is not
open to the State to impose regulations upon the exercise of
B
this right. The fundamental freedom is to establish and to
administer educational institutions: it is a right to establish and
administer what are in truth educational institutions, institutions
which cater to the educational needs of the citizens, or sections
thereof. Regulation made in the true interests of efficiency of
C instruction, discipline, health, sanitation, morality, public order
and the like may undoubtedly be imposed. Such regulations
are not restrictions on the substance of the right which is
guaranteed: they secure the proper functioning of the institution,
in matters educational.”
D 106. While coming to the conclusion that the right of the private
training colleges to admit students of their choice was severely
restricted, this Court referred to the opinion in Kerala Education
Bill, 1957 case but distinguished it by observing that the Court
did not, in that case, lay down any test of reasonableness of the
regulation. No general principle on which the reasonableness of a
E regulation may be tested was sought to be laid down in Kerala
Education Bill, 1957 case and, therefore, it was held in
Sidhajbhai Sabhai case that the opinion in that case was not an
authority for the proposition that all regulative measures, which
were not destructive or annihilative of the character of the institution
F established by the minority, provided the regulations were in the
national or public interest, were valid. In this connection it was
further held at SCR pp. 856-57, as follows:
“The right established by Article 30(1) is a fundamental right
declared in terms absolute. Unlike the fundamental freedoms
G guaranteed by Article 19, it is not subject to reasonable
restrictions. It is intended to be a real right for the protection of
the minorities in the matter of setting up of educational
institutions of their own choice. The right is intended to be
effective and is not to be whittled down by so-called regulative
measures conceived in the interest not of the minority
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educational institution, but of the public or the nation as a whole. A
If every order which while maintaining the formal character
of a minority institution destroys the power of administration is
held justifiable because it is in the public or national interest,
though not in its interest as an educational institution, the right
guaranteed by Article 30(1) will be but a ‘teasing illusion’, a
B
promise of unreality. Regulations which may lawfully be
imposed either by legislative or executive action as a condition
of receiving grant or of recognition must be directed to making
the institution while retaining its character as a minority institution
effective as an educational institution. Such regulation must
satisfy a dual test — the test of reasonableness, and the test C
that it is regulative of the educational character of the institution
and is conducive to making the institution an effective vehicle
of education for the minority community or other persons who
resort to it.”
107. The aforesaid decision does indicate that the right under D
Article 30(1) is not so absolute as to prevent the Government
from making any regulation whatsoever. As already noted
hereinabove, in Sidhajbhai Sabhai case it was laid down that
regulations made in the true interests of efficiency of instruction,
discipline, health, sanitation, morality and public order could be
imposed. If this is so, it is difficult to appreciate how the E
Government can be prevented from framing regulations that are
in the national interest, as it seems to be indicated in the passage
quoted hereinabove. Any regulation framed in the national interest
must necessarily apply to all educational institutions, whether run
by the majority or the minority. Such a limitation must necessarily F
be read into Article 30. The right under Article 30(1) cannot be
such as to override the national interest or to prevent the
Government from framing regulations in that behalf. It is, of course,
true that government regulations cannot destroy the minority
character of the institution or make the right to establish and
administer a mere illusion; but the right under Article 30 is not so G
absolute as to be above the law. It will further be seen that in
Sidhajbhai Sabhai case no reference was made to Article 29(2)
of the Constitution. This decision, therefore, cannot be an authority
for the proposition canvassed before us.”
(Emphasis supplied) H
266 SUPREME COURT REPORTS [2020] 1 S.C.R.

A 31.2. The leading Judgment thereafter considered the decision
of this Court in Ahmedabad St. Xavier’s College5, and while quoting
certain passages therefrom, it was observed:
“119. In a concurrent judgment, while noting (at SCC p. 770,
para 73) that “clause (2) of Article 29 forbids the denial of
B admission to citizens into any educational institution
maintained by the State or receiving aid out of State funds on
grounds only of religion, race, caste, language or any of
them”, Khanna, J. then examined Article 30, and observed at SCR
p. 222, as follows: (SCC p. 770, para 74)
C “74. Clause (1) of Article 30 gives right to all minorities, whether
based on religion or language, to establish and administer
educational institutions of their choice. Analysing that clause it
would follow that the right which has been conferred by the
clause is on two types of minorities. Those minorities may be
based either on religion or on language. The right conferred
D upon the said minorities is to establish and administer educational
institutions of their choice. The word ‘establish’ indicates the
right to bring into existence, while the right to administer an
institution means the right to effectively manage and conduct
the affairs of the institution. Administration connotes
E management of the affairs of the institution. The management
must be free of control so that the founders or their nominees
can mould the institution as they think fit and in accordance
with their ideas of how the interest of the community in general
and the institution in particular will be best served. The words
‘of their choice’ qualify the educational institutions and show
F that the educational institutions established and administered
by the minorities need not be of some particular class; the
minorities have the right and freedom to establish and administer
such educational institutions as they choose. Clause (2) of
Article 30 prevents the State from making discrimination in
G the matter of grant of aid to any educational institution on the
ground that the institution is under the management of a minority,
whether based on religion or language.”
120. Explaining the rationale behind Article 30, it was observed at
SCR p. 224, as follows: (SCC p. 772, para 77)
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“77. The idea of giving some special rights to the minorities is A
not to have a kind of a privileged or pampered section of the
population but to give to the minorities a sense of security and
a feeling of confidence. The great leaders of India since time
immemorial had preached the doctrine of tolerance and
catholicity of outlook. Those noble ideas were enshrined in the
B
Constitution. Special rights for minorities were designed not to
create inequality. Their real effect was to bring about equality
by ensuring the preservation of the minority institutions and by
guaranteeing to the minorities autonomy in the matter of the
administration of those institutions. The differential treatment
for the minorities by giving them special rights is intended to C
bring about an equilibrium, so that the ideal of equality may not
be reduced to a mere abstract idea but should become a living
reality and result in true, genuine equality, an equality not merely
in theory but also in fact.”
121. While advocating that provisions of the Constitution should D
be construed according to the liberal, generous and sympathetic
approach, and after considering the principles which could be
discerned by him from the earlier decisions of this Court, Khanna,
J., observed at SCR p. 234, as follows: (SCC p. 781, para 89)
“The minorities are as much children of the soil as the majority E
and the approach has been to ensure that nothing should be
done as might deprive the minorities of a sense of belonging,
of a feeling of security, of a consciousness of equality and of
the awareness that the conservation of their religion, culture,
language and script as also the protection of their educational
institutions is a fundamental right enshrined in the Constitution. F
The same generous, liberal and sympathetic approach should
weigh with the courts in construing Articles 29 and 30 as
marked the deliberations of the Constitution-makers in drafting
those articles and making them part of the fundamental rights.
The safeguarding of the interest of the minorities amongst G
sections of population is as important as the protection of the
interest amongst individuals of persons who are below the age
of majority or are otherwise suffering from some kind of
infirmity. The Constitution and the laws made by civilized
nations, therefore, generally contain provisions for the protection
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268 SUPREME COURT REPORTS [2020] 1 S.C.R.

A of those interests. It can, indeed, be said to be an index of the
level of civilization and catholicity of a nation as to how far
their minorities feel secure and are not subject to any
discrimination or suppression.”
122. The learned Judge then observed that the right of the minorities
B to administer educational institutions did not prevent the making
of reasonable regulations in respect of these institutions.
Recognizing that the right to administer educational institutions
could not include the right to maladminister, it was held that
regulations could be lawfully imposed, for the receiving of grants
and recognition, while permitting the institution to retain its
C character as a minority institution. The regulation “must satisfy a
dual test — the test of reasonableness, and the test that it is
regulative of the educational character of the institution and
is conducive to making the institution an effective vehicle of
education for the minority community or other persons who
D resort to it”. (SCC p. 783, para 92) It was permissible for the
authorities to prescribe regulations, which must be complied with,
before a minority institution could seek or retain affiliation and
recognition. But it was also stated that the regulations made by
the authority should not impinge upon the minority character of
the institution. Therefore, a balance has to be kept between the
E two objectives — that of ensuring the standard of excellence of
the institution, and that of preserving the right of the minorities to
establish and administer their educational institutions. Regulations
that embraced and reconciled the two objectives could be
considered to be reasonable. This, in our view, is the correct
F approach to the problem.
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
G over teachers and other members 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 for their educational institutions, the State would have
H no right to veto the selection of those teachers. The selection and
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appointment of teachers for an educational institution was regarded A
as one of the essential ingredients under Article 30(1). The Court’s
attention was drawn to the fact that in Kerala 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
B
that no teacher of an aided school could be dismissed, removed or
reduced in rank without the previous sanction of the authorized
officer. At SCC p. 792, Khanna, J., observed that in cases
subsequent to the opinion in Kerala Education Bill, 1957 case9
this Court had held similar provisions as clause 11 and clause 12
to be violative of Article 30(1) (sic in the case) of the minority C
institutions. He then observed as follows: (SCC p. 792, para 109)
“The opinion expressed by this Court in Re Kerala Education
Bill, 1957 was of an advisory character and though great
weight should be attached to it because of its persuasive value,
the said opinion cannot override the opinion subsequently D
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 preceding sentence indicate that the view expressed
by this Court in Re Kerala Education Bill, 1957 in this respect
was hesitant and tentative and not a final view in the matter.” E

(Emphasis supplied)
31.3. After considering all the decisions, the matter was
summed up as under:
“135. We agree with the contention of the learned Solicitor-General F
that the Constitution in Part III does not contain or give any absolute
right. All rights conferred in Part III of the Constitution are subject
to at least other provisions of the said Part. It is difficult to
comprehend that the framers of the Constitution would have given
such an absolute right to the religious or linguistic minorities, which G
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
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. H
270 SUPREME COURT REPORTS [2020] 1 S.C.R.

A 137. It follows from the aforesaid decisions that even 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, and we reiterate the same. By the same
B
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 Article 30(1).
C 138. As we look at it, Article 30(1) is a sort of guarantee or
assurance to the linguistic and religious minority institutions of
their right to establish and administer educational institutions of
their choice. Secularism and equality being two of the basic features
of the Constitution, Article 30(1) ensures protection to the linguistic
D and religious minorities, thereby preserving the secularism of the
country. Furthermore, the principles of equality must necessarily
apply to the enjoyment of such rights. No law can be framed that
will discriminate against such minorities with regard to the
establishment and administration of educational institutions vis-à-
vis other educational institutions. Any law or rule or regulation
E that would put the educational institutions run by the minorities at
a disadvantage when compared to the institutions run by the others
will have to be struck down. At the same time, there also cannot
be any reverse discrimination. It was observed in St. Xavier’s
College case5 at SCR p. 192 that : (SCC p. 743, para 9)
F “The whole object of conferring the right on minorities
under Article 30 is to ensure that there will be equality
between the majority and the minority. If the minorities do
not have such special protection they will be denied
equality.”
G In other words, the essence of Article 30(1) is to ensure equal
treatment between the majority and the minority institutions. No
one type or category of institution should be disfavoured or, for
that matter, receive more favourable treatment than another. Laws
of the land, including rules and regulations, must apply equally to
H the majority institutions as well as to the minority institutions. The
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minority institutions must be allowed to do what the non-minority A
institutions are permitted to do.
139. Like any other private unaided institutions, similar unaided
educational institutions administered by linguistic or religious
minorities are assured maximum autonomy in relation thereto; e.g.
method of recruitment of teachers, charging of fees and admission B
of students. They will have to comply with the conditions of
recognition, which cannot be such as to whittle down the right
under Article 30.”
(Emphasis supplied)
31.4. The matter was then considered in the context where aid C
was being received by the concerned minority institution and to what
extent its autonomy in administration, could be curtailed or regulated. It
was observed:
“144. It cannot be argued that no conditions can be imposed while
giving aid to a minority institution. Whether it is an institution run D
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 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 E
educational institution cannot be discriminated against, if other
educational institutions are entitled to receive aid. The 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 F
of the Constitution comes into play. When an educational institution
is maintained out of State funds, no religious instruction can be
provided therein. Article 28(1) does not state that it applies only to
educational institutions that are not established or maintained by
religious or linguistic minorities. Furthermore, upon the receipt of G
aid, the provisions of Article 28(3) would apply to all educational
institutions whether run by the minorities or the non-minorities.
Article 28(3) is the right of a person studying in a State-recognized
institution or in an educational institution receiving aid from State
funds, not to take part in any religious instruction, if imparted by
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272 SUPREME COURT REPORTS [2020] 1 S.C.R.

A such institution, without his/her consent (or his/her guardian’s
consent if such a person is a minor). Just as Articles 28(1) and (3)
become applicable the moment any educational institution takes
aid, likewise, Article 29(2) would also be attracted and become
applicable to an educational institution maintained by the State or
receiving aid out of State funds. It was strenuously contended
B
that the right to give admission is one 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 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,
C 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 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 Article 28(1) and Article 28(3) would
D
be applicable to an aided minority institution. It is true that 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
E to grant 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 Article 29(2), no citizen can be denied admission by
an aided minority institution on the grounds only of religion, race,
F
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 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
G instruction — this right is taken away by Article 28(1), if that
minority institution is maintained wholly out of State funds. Similarly
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
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receiving aid or being wholly maintained out of State funds as A
provided by Article 28 is valid, there is no reason why Article
29(2) should not be held to be applicable. There is nothing in the
language of Articles 28(1) and (3), Article 29(2) and Article 30 to
suggest that, on receiving aid, Articles 28(1) and (3) will apply, but
Article 29(2) will not. Therefore, the contention that the institutions
B
covered by Article 30 are outside the injunction of Article 29(2)
cannot be accepted.
… … …
151. The right of the aided minority institution to preferably admit
students of its community, when Article 29(2) was applicable, has C
been clarified by this Court over a decade ago in St. Stephen’s
College case. While upholding the procedure for admitting
students, this Court also held that aided minority educational
institutions were entitled to preferably admit their community
candidates so as to maintain the minority character of the institution,
and that the State may regulate the intake in this category with D
due regard to the area that the institution was intended to serve,
but that this intake should not be more than 50% in any case.
Thus, St. Stephen’s endeavoured to strike a balance between the
two articles. Though we accept the ratio of St. Stephen’s which
has held the field for over a decade, we have compelling E
reservations in accepting the rigid percentage stipulated therein.
As Article 29 and Article 30 apply not only to institutions of higher
education but also to schools, a ceiling of 50% would not be proper.
It will be more appropriate that, depending upon the level of the
institution, whether it be a primary or secondary or high school or
a college, professional or otherwise, and on the population and F
educational needs of the area in which the institution is to be
located, the State properly balances the interests of all by providing
for such a percentage of students of the minority community to
be admitted, so as to adequately serve the interest of the community
for which the institution was established. G
152. At the same time, the admissions to aided institutions, whether
awarded to minority or non-minority students, cannot be at the
absolute sweet will and pleasure of the management of minority
educational institutions. As the regulations to promote academic
excellence and standards do not encroach upon the guaranteed H
274 SUPREME COURT REPORTS [2020] 1 S.C.R.

A rights under Article 30, the aided minority educational institutions
can be required to observe inter se merit amongst the eligible
minority applicants and passage of common entrance test by the
candidates, where there is one, with regard to admissions in
professional and non-professional colleges. If there is no such
test, a rational method of assessing comparative merit has to be
B
evolved. As regards the non-minority segment, admission may be
on the basis of the common entrance test and counselling by a
State agency. In the courses for which such a test and counselling
are not in vogue, admission can be on the basis of relevant criteria
for the determination of merit. It would be open to the State
C authorities to insist on allocating a certain percentage of seats to
those belonging to weaker sections of society, from amongst the
non-minority seats.”
(Emphasis supplied)
31.5. Finally, as regards Question No.5(c), the leading judgment
D gave its answer as under:-
“Q. 5. (c) Whether the statutory provisions which regulate the
facets of administration like control over educational agencies,
control over governing bodies, conditions of affiliation including
recognition/withdrawal thereof, and appointment of staff,
E employees, teachers and principals including their service conditions
and regulation of fees, etc. would interfere with the right of
administration of minorities?
A. So far as the statutory provisions regulating the facets of
administration are concerned, in case of an unaided minority
F educational institution, the regulatory measure of 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
G control over them, the 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.
For redressing the grievances of employees of aided and unaided
institutions who are subjected to punishment or termination from
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service, a mechanism will have to be evolved, and in our opinion, A
appropriate tribunals could be constituted, and till then, such
tribunals could be presided over by a judicial officer of the rank of
District Judge.
The State or other controlling authorities, however, can always
prescribe the minimum qualification, experience and other B
conditions bearing on the merit of an individual for being appointed
as a teacher or a principal of any educational institution.
“Regulations can be framed governing service conditions for
teaching and other staff for whom aid is provided by the State,
without interfering with the overall administrative control of the C
management over the staff.
Fees to be charged by unaided institutions cannot be regulated
but no institution should charge capitation fee.”
C) Decisions after TMA Pai Foundation
D
32. In Brahmo Samaj Education Society vs. State of West
Bengal24, a Bench of two Judges dealt with the issue that arose as
under:-
“5. The main question for consideration is, whether the appointment
of teachers through the selection of the College Service
E
Commission is permissible or not, in other words, to decipher the
role of the State in the matter of appointment of teachers. To
establish and administer an educational institution is held to be a
right coming under Article 19(1)(g) of the Constitution as
enunciated in T.M.A. Pai Foundation v. State of Karnataka8.
According to Article 19(6) of the Constitution, the right to establish F
and maintain an educational institution is subject to the reasonable
restrictions imposed by the State in the interest of general public.
At the same time, subject to public order, morality and health,
every religious denomination or any section thereof can establish
and maintain educational institutions under Article 26(a) of the
G
Constitution. Reading Article 19(1)(g) and Article 26(a) of the
Constitution together, the petitioners have a right to establish and
maintain educational institutions and hence we do not think it is
ne7cessary to decide the issue of minority/denominational status
24
(2004) 6 SCC 224
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276 SUPREME COURT REPORTS [2020] 1 S.C.R.

A of Brahmo Samaj to decide the issue in hand. In our view, this
issue does not arise in the context of the present case.
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
B a reasonable restriction in the 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. Of
course the State can impose such conditions as are necessary for
C the proper maintenance of standards of education and to check
maladministration. It is stated in T.M.A. Pai8 that:
“71. While giving aid to professional institutions, it would be
permissible for the authority giving aid to prescribe by rules or
regulations, the conditions on the basis of which admission will
D be granted to different aided colleges by virtue of merit, coupled
with the reservation policy of the State. The merit may be
determined either through a common entrance test conducted
by the university or the Government followed by counselling,
or on the basis of an entrance test conducted by individual
E institutions — the method to be followed is for the university
or the Government to decide. The authority may also devise
other means to ensure that admission is granted to an aided
professional institution on the basis of merit. In the case of
such institutions, it will be permissible for the Government or
the university to provide that consideration should be shown to
F the weaker sections of the society. (SCC at p. 550, para 71)
72. Once aid is granted to a private professional educational
institution, the Government or the State agency, as a condition
of the grant of aid, can put fetters on the freedom in the matter
of administration and management of the institution. The State,
G which gives aid to an educational institution, can impose such
conditions as are necessary for the proper maintenance of the
high standards of education as the financial burden is shared
by the State. The State would also be under an obligation to
protect the interest of the teaching and non-teaching staff. In
H many States, there are various statutory provisions to regulate
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the functioning of such educational institutions where the States A
give, as a grant or aid, a substantial proportion of the revenue
expenditure including salary, pay and allowances of teaching
and non-teaching staff. It would be its responsibility to ensure
that the teachers working in those institutions are governed by
proper service conditions. The State, in the case of such aided
B
institutions, has ample power to regulate the method of selection
and appointment of teachers after prescribing requisite
qualifications for the same. Ever since in Kerala Education
Bill, 1957, Re9 this Court has upheld, in the case of aided
institutions, those regulations that served the interests of students
and teachers. Checks on the administration may be necessary C
in order to ensure that the administration is efficient and sound
and will serve the academic needs of the institutions. In other
words, rules and regulations that promote good administration
and prevent maladministration can be formulated so as to
promote the efficiency of teachers, discipline and fairness in
D
administration and to preserve harmony among affiliated
institutions. At the same time it has to be ensured that even an
aided institution does not become a government-owned and
controlled institution. Normally, the aid that is granted is relatable
to the pay and allowances of the teaching staff. In addition,
the management of the private aided institutions has to incur E
revenue and capital expenses. Such aided institutions cannot
obtain that extent of autonomy in relation to management and
administration as would be available to a private unaided
institution, but at the same time, it cannot also be treated as an
educational institution departmentally run by Government or
F
as a wholly owned and controlled government institution and
interfere with constitution of the governing bodies or thrusting
the staff without reference to management.
73. There are a large number of educational institutions, like
schools and non-professional colleges, which cannot operate
without the support of aid from the State. Although these G
institutions may have been established by philanthropists or
other public-spirited persons, it becomes necessary, in order to
provide inexpensive education to the students, to seek aid from
the State. In such cases, as those of the professional aided
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278 SUPREME COURT REPORTS [2020] 1 S.C.R.

A institutions referred to hereinabove, the Government would be
entitled to make regulations relating to the terms and conditions
of employment of the teaching and non-teaching staff whenever
the aid for the posts is given by the State as well as admission
procedures. Such rules and regulations can also provide for
the reasons and the manner in which a teacher or any other
B
member of the staff can be removed. In other words, the
autonomy of a private aided institution would be less than that
of an unaided institution.
… … …
C 10. When a larger Bench consisting of eleven Judges of this Court
in T.M.A. Pai has declared what the law on the matter is, we do
not want to dilute the effect of the same by analysing various
statements made therein or indulge in any dissection of the
principles underlying it. We would rather state that the State
Government shall take note of the declarations of law made by
D this Court in this regard and make suitable amendments to their
laws, rules and regulations to bring them in conformity with the
principles set out therein.”
33. In P.A. Inamdar and others v. State of Maharashtra and
others25 a Bench of Seven Judges of this Court culled out the issues
E which arose for its consideration as under:
“26. These matters have been directed to be placed for hearing
before a Bench of seven Judges under orders of the Chief Justice
of India pursuant to the order dated 15-7-2004 in P.A. Inamdar v.
State of Maharashtra26 and order dated 29-7-2004 in Pushpagiri
F Medical Society v. State of Kerala27. The aggrieved persons
before us are again classifiable in one class, that is, unaided minority
and non-minority institutions imparting professional education. The
issues arising for decision before us are only three:
(i) the fixation of “quota” of admissions/students in respect of
G unaided professional institutions;
(ii) the holding of examinations for admissions to such colleges,
that is, who will hold the entrance tests; and
25
(2005) 6 SCC 537
26
(2004) 8 SCC 139
27
H (2004) 8 SCC 135
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(iii) the fee structure. A
The questions spelled out by orders of reference
27. In the light of the two orders of reference, referred to
hereinabove, we propose to confine our discussion to the questions
set out hereunder which, according to us, arise for decision:
B
(1) To what extent can the State regulate admissions made by
unaided (minority or non-minority) educational institutions? Can
the State enforce its policy of reservation and/or appropriate to
itself any quota in admissions to such institutions?
(2) Whether unaided (minority and non-minority) educational C
institutions are free to devise their own admission procedure or
whether the direction made in Islamic Academy28 for compulsorily
holding an entrance test by the State or association of institutions
and to choose therefrom the students entitled to admission in such
institutions, can be sustained in light of the law laid down in Pai
Foundation? D
(3) Whether Islamic Academy could have issued guidelines in
the matter of regulating the fee payable by the students to the
educational institutions?
(4) Can the admission procedure and fee structure be regulated
E
or taken over by the Committees ordered to be constituted by
Islamic Academy?”
33.1. While dealing with real purpose of Article 30 of the
Constitution, it was stated:-
“70. The real purpose of Article 30 is to prevent discrimination F
against members of the minority community and to place them on
an equal footing with non-minority. Reverse discrimination was
not the intention of Article 30. If running of educational institutions
cannot be said to be at a higher plane than the right to carry on
any other business, reasonable restrictions similar to those placed
on the right to carry on business can be placed on educational G
institutions conducting professional courses. For the purpose of
these restrictions both minorities and non-minorities can be treated
at par and there would not be any violation of Article 30(1), which

28
(2003) 6 SCC 697 H
280 SUPREME COURT REPORTS [2020] 1 S.C.R.

A guarantees only protection against oppression and discrimination
of the minority from the majority. Activities of education being
essentially charitable in nature, the educational institutions both of
a non-minority and minority character can be regulated and
controlled so that they do not indulge in selling seats of learning to
make money. They can be allowed to generate such funds as
B
would be reasonably required to run the institute and for its further
growth.”
(Emphasis supplied)
33.2 The discussion shows that the matter was considered in the
C context of the rights of unaided institutions and not with regard to “minority
educational institutions receiving State aid” as is evident from para No.123
of the decision. Para No.103 of the decision shows that minority
educational institutions were classified in three categories and para No.104
onwards points difference between professional and non-professional
educational institutions. Paragraph Nos.104 to 107 were as under:
D
“Difference between professional and non-professional
educational institutions
104. Article 30(1) speaks of “educational institutions” generally
and so does Article 29(2). These articles do not draw any distinction
E between an educational institution dispensing theological education
or professional or non-professional education. However, the terrain
of thought as has developed through successive judicial
pronouncements culminating in Pai Foundation is that looking at
the concept of education, in the backdrop of the constitutional
provisions, professional educational institutions constitute a class
F by themselves as distinguished from educational institutions
imparting non-professional education. It is not necessary for us to
go deep into this aspect of the issue posed before us inasmuch as
Pai Foundation has clarified that merit and excellence assume
special significance in the context of professional studies. Though
G merit and excellence are not anathema to non-professional
education, yet at that level and due to the nature of education
which is more general, the need for merit and excellence therein
is not of the degree as is called for in the context of professional
education.

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105. Dealing with unaided minority educational institutions, Pai A
Foundation8 holds that Article 30 does not come in the way of
the State stepping in for the purpose of securing transparency
and recognition of merit in the matter of admissions. Regulatory
measures for ensuring educational standards and maintaining
excellence thereof are no anathema to the protection conferred
B
by Article 30(1). However, a distinction is to be drawn between
unaided minority educational institution of the level of schools and
undergraduate colleges on the one side and institutions of higher
education, in particular, those imparting professional education,
on the other side. In the former, the scope for merit-based selection
is practically nil and hence may not call for regulation. But in the C
case of the latter, transparency and merit have to be unavoidably
taken care of and cannot be compromised. There could be
regulatory measures for ensuring educational standards and
maintaining excellence thereof. (See para 161, answer to Question
4, in Pai Foundation.) The source of this distinction between
D
two types of educational institutions referred to hereinabove is to
be found in the principle that right to administer does not include a
right to maladminister.
106. S.B. Sinha, J. has, in his separate opinion in Islamic Academy
described (in para 199) the situation as a pyramid-like situation
and suggested the right of minority to be read along with the E
fundamental duty. Higher the level of education, lesser are the
seats and higher weighs the consideration for merit. It will,
necessarily, call for more State intervention and lesser say for the
minority.
107. Educational institutions imparting higher education i.e. F
graduate level and above and in particular specialised education
such as technical or professional, constitute a separate class. While
embarking upon resolving issues of constitutional significance,
where the letter of the Constitution is not clear, we have to keep
in view the spirit of the Constitution, as spelt out by its entire G
scheme. Education aimed at imparting professional or technical
qualifications stands on a different footing from other educational
instruction. Apart from other provisions, Article 19(6) is a clear
indicator and so are clauses (h) and (j) of Article 51-A. Education
up to the undergraduate level aims at imparting knowledge just to
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282 SUPREME COURT REPORTS [2020] 1 S.C.R.

A enrich the mind and shape the personality of a student. Graduate-
level study is a doorway to admissions in educational institutions
imparting professional or technical or other higher education and,
therefore, at that level, the considerations akin to those relevant
for professional or technical educational institutions step in and
become relevant. This is in the national interest and strengthening
B
the national wealth, education included. Education up to the
undergraduate level on the one hand and education at the graduate
and postgraduate levels and in professional and technical institutions
on the other are to be treated on different levels inviting not identical
considerations, is a proposition not open to any more debate after
C Pai Foundation. A number of legislations occupying the field of
education whose constitutional validity has been tested and
accepted suggest that while recognition or affiliation may not be a
must for education up to undergraduate level or, even if required,
may be granted as a matter of routine, recognition or affiliation is
a must and subject to rigorous scrutiny when it comes to educational
D
institutions awarding degrees, graduate or postgraduate,
postgraduate diplomas and degrees in technical or professional
disciplines. Some such legislations are found referred in paras 81
and 82 of S.B. Sinha, J.’s opinion in Islamic Academy.”
34. In Kanya Junior High School, Bal Vidya Mandir, Etah,
E U.P. v. U.P. Basic Shiksha Parishad, Allahabd, U.P. and others29
one of the issues that arose was whether the school established and
administered by individuals professing – Jain Religion could be said to be
a Religious Minority Educational Institution in the State of U.P. It was
concluded by this Court that since the school was recognised as a Minority
F Educational Institution by the Division Bench of the High Court of
Judicature at Allahabad, it could not be denied that status and as such
before terminating the services of a teacher, prior approval of the District
Basic Education Officer was not necessary.
35. In Secretary, Malankara Syrian Catholic College v. T.
G Jose and others6 the principal question that arose for consideration was
whether right to choose a Principal is part of the right of a minority
institution under Article 30(1) of the Constitution. This Court considered
the relevant decisions on the point and also quoted para No.16 of the
decision of this Court in Frank Anthony Public School case17. The
29
(2006) 11 SCC 92
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general principles relevant to establishment and administration of A
educational institutions by minorities were summed up as under:-
“19. The general principles relating to establishment and
administration of educational institution by minorities may be
summarised thus:
(i) The right of minorities to establish and administer educational B
institutions of their choice comprises the following rights:
(a) to choose its governing body in whom the founders of the
institution have faith and confidence to conduct and manage
the affairs of the institution;
C
(b) to appoint teaching staff (teachers/lecturers and
Headmasters/Principals) as also non-teaching staff, and to take
action if there is dereliction of duty on the part of any of its
employees;
(c) to admit eligible students of their choice and to set up a D
reasonable fee structure;
(d) to use its properties and assets for the benefit of the
institution.
(ii) The right conferred on minorities under Article 30 is only to
ensure equality with the majority and not intended to place the E
minorities in a more advantageous position vis-à-vis the majority.
There is no reverse discrimination in favour of minorities. The
general laws of the land relating to national interest, national
security, social welfare, public order, morality, health, sanitation,
taxation, etc. applicable to all, will equally apply to minority
F
institutions also.
(iii) The right to establish and administer educational institutions
is not absolute. Nor does it include the right to maladminister.
There can be regulatory measures for ensuring educational
character and standards and maintaining academic excellence.
There can be checks on administration as are necessary to ensure G
that the administration is efficient and sound, so as to serve the
academic needs of the institution. Regulations made by the State
concerning generally the welfare of students and teachers,
regulations laying down eligibility criteria and qualifications for
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284 SUPREME COURT REPORTS [2020] 1 S.C.R.

A appointment, as also conditions of service of employees (both
teaching and non-teaching), regulations to prevent exploitation or
oppression of employees, and regulations prescribing syllabus and
curriculum of study fall under this category. Such regulations do
not in any manner interfere with the right under Article 30(1).
B (iv) Subject to the eligibility conditions/qualifications prescribed
by the State being met, the unaided minority educational institutions
will have the freedom to appoint teachers/lecturers by adopting
any rational procedure of selection.
(v) Extension of aid by the State does not alter the nature and
C character of the minority educational institution. Conditions can
be imposed by the State to ensure proper utilisation of the aid,
without however diluting or abridging the right under Article 30(1).
… … …
D 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:
(i) the minimum qualifications, experience and other criteria bearing
E on merit, for making appointments,
(ii) the service conditions of employees without interfering with
the overall administrative control by the management over the
staff,
(iii) a mechanism for redressal of the grievances of the employees,
F
(iv) the conditions for the proper utilisation of the aid by 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
G to minority educational institutions also. But if any such regulations
interfere with the overall administrative control by the management
over the staff, or abridges/dilutes, in any other manner, the right to

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establish and administer educational institutions, such regulations, A
to that extent, will be inapplicable to minority institutions.”
35.1 As regards freedom to choose the principal, it was observed:-
22. The Principal or Headmaster of an educational institution is
responsible for the functional efficiency of the institution, as also
the quality of education and discipline in the institution. He is also B
responsible for maintaining the philosophy and objects of the
institution.
35.2 It also relied upon the passage from the decision of this Court
in N. Ammad23, as under:-
C
25. In N. Ammad the appellant contended that he being the
seniormost graduate teacher of an aided minority school, he should
be appointed as the Headmaster and none else. He relied on Rule
44-A of the Kerala Education Rules which provided that
appointment of Headmaster shall ordinarily be according to
seniority from the seniority list prepared and maintained under D
clauses (a) and (b) of Rule 34. This Court held: (SCC p. 680,
paras 18-19)
“18. Selection and appointment of Headmaster in a school (or
Principal of a college) are of prime importance in administration
of that educational institution. The Headmaster is the key post in E
the running of the school. He is the hub on which all the spokes of
the school are set around whom they rotate to generate result. A
school is personified through its Headmaster and he is the focal
point on which outsiders look at the school. A bad Headmaster
can spoil the entire institution, an efficient and honest Headmaster F
can improve it by leaps and bounds. The functional efficacy of a
school very much depends upon the efficiency and dedication of
its Headmaster. This pristine precept remains unchanged despite
many changes taking place in the structural patterns of education
over the years.
G
19. How important is the post of Headmaster of a school has
been pithily stated by a Full Bench of the Kerala High Court in
Aldo Maria Patroni v. E.C. Kesavan 30. Chief Justice M.S.
Menon has, in a style which is inimitable, stated thus:
30
AIR 1965 Ker 75 : 1964 KLT 791 (FB) H
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A ‘The post of the headmaster is of pivotal importance in the life
of a school. Around him wheels the tone and temper of the
institution; on him depends the continuity of its traditions, the
maintenance of discipline and the efficiency of its teaching.
The right to choose the headmaster is perhaps the most
important facet of the right to administer a school, and we
B
must hold that the imposition of any trammel thereon—except
to the extent of prescribing the requisite qualifications and
experience—cannot but be considered as a violation of the
right guaranteed by Article 30(1) of the Constitution. To hold
otherwise will be to make the right “a teasing illusion, a promise
C of unreality”.’
Thereafter, this Court concluded that the management of minority
institution is free to find out a qualified person either from the
staff of the same institution or from outside, to fill up the vacancy;
and that the management’s right to choose a qualified person as
D the Headmaster of the school is well insulated by the protective
cover of Article 30(1) of the Constitution and it cannot be chiselled
out through any legislative act or executive rule except for fixing
up the qualifications and conditions of service for the post; and
that any such statutory or executive fiat would be violative of the
fundamental right enshrined in Article 30(1) and would therefore
E be void. This Court further observed that if the management of
the school is not given the wide freedom to choose the person for
holding the key post of Principal subject, of course, to the restriction
regarding qualifications to be prescribed by the State, the right to
administer the school would get much diminished.
F 35.3 It was, thereafter, concluded:-
“27. It is thus clear that the freedom to choose the person to be
appointed as Principal has always been recognised as a vital facet
of the right to administer the educational institution. This has not
been, in any way, diluted or altered by T.M.A. Pai. Having regard
G to the key role played by the Principal in the management and
administration of the educational institution, there can be no doubt
that the right to choose the Principal is an important part of the
right of administration and even if the institution is aided, there
can be no interference with the said right. The fact that the post
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of the Principal/Headmaster is also covered by State aid will make A
no difference.”
36. In Sindhi Education Society and another v. Chief Secretary,
Government of NCT of Delhi and others7 a Bench of two Judges of
this Court considered inter alia whether under Rule 64(1)(b) of the
Delhi School Education Rules, 1973, instructions could be issued to fill in B
the posts of teachers in an aided Minority Educational Institution in
accordance with the policy of reservation by candidates from the
categories of Scheduled Casts and Scheduled Tribes. The ratio of the
cases decided by this Court in Re: The Kerala Education Bill, 19579
and in Ahmedabad St. Xaviers’ College5 was considered as under:
C
“46. 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 has been very
heavily relied upon by the respondents before us, completely puts
an embargo on the appointment of teachers of their choice and D
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 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 E
bad. This was in view of the law stated under the Bill and its
scheme that weighed with the Court to record the findings
aforenoticed.
47. Still another seven-Judge Bench of this Court, in Ahmedabad
St. Xavier’s College Society5 was primarily concerned with the
F
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 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 G
choice to participate in the system of general education and courses
of instructions prescribed by that university, and it agrees to follow
the uniform 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,
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A hygiene of students and the other facilities are germane to affiliation
of minority institutions.
36.1 In the context of the decision in TMA Pai Foundation8, it
was observed:
“55. The respondents have placed reliance upon the law stated
B by the Bench that any regulation framed in the national interest
must necessarily apply to all educational institutions, 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
C framing regulations in that behalf. It is, of course, true that
government regulations cannot destroy the minority character of
the institution or make a right to establish and administer a mere
illusion; but the right under Article 30 is not so absolute as to be
above the law.
D 56. The appellant also seeks 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 vehicle of education consistent with the national
interest. Such general laws of the land would also be applicable to
the minority institutions as well. There is no reason why regulations
E or conditions concerning generally the welfare of the students
and teachers should not be made applicable in order to provide a
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
F 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 not be any reverse
discrimination.
91. In T.M.A. Pai case8 the right to establish an institution is
G 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) thereof. Further, that minority, whether
based on religion or language, however, has a fundamental right

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to establish and administer educational institution of its own choice A
under Article 30(1).
92. The right under clause (1) of Article 30 is not absolute but
subject to reasonable restrictions which, inter alia, may be framed
having regard to the public interest and national interest of the
country. Regulation can also be framed to prevent maladministration B
as well as for laying down standards of education, teaching,
maintenance of discipline, public order, health, morality, etc. It is
also well settled that a minority institution does not cease to be so,
the moment grant-in-aid is received by the institution. An aided
minority educational institution, therefore, would be entitled to have
the right of admission of students belonging to the minority group C
and, at the same time, would be required to admit a reasonable
extent of non-minority students, to the extent, that the right in
Article 30(1) is not substantially impaired and further, the citizen’s
right under Article 29(2) is not infringed.”
36.2 While considering the amplitude of the Rule in question, it D
was observed:
“101. To appoint a teacher is part of the regular administration
and management of the school. Of course, what should be the
qualification or eligibility criteria for a teacher to be appointed can
be defined and, in fact, has been defined by the Government of E
NCT of Delhi and within those specified parameters, the right of
a linguistic minority institution to appoint a teacher cannot be
interfered with. The paramount feature of the above laws was to
bring efficiency and excellence in the field of school education
and, therefore, it is expected of the minority institutions to select F
the best teacher to the faculty. To provide and enforce any
regulation, which will practically defeat this purpose would have
to be avoided. A linguistic minority is entitled to conserve its
language and culture by a constitutional mandate. Thus, it must
select people who satisfy the prescribed criteria, qualification and
eligibility and at the same time ensure better cultural and linguistic G
compatibility to the minority institution.
112. Every linguistic minority may have its own social, economic
and cultural limitations. It has a constitutional right to conserve
such culture and language. Thus, it would have a right to choose
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A teachers, who possess the eligibility and qualifications, as provided,
without really being impressed by the fact of their religion and
community. Its own limitations may not permit, for cultural,
economic or other good reasons, to induct teachers from a
particular class or community. The direction, as contemplated under
Rule 64(1)(b), could be enforced against the general or majority
B
category of the government-aided schools but, it may not be
appropriate to enforce such condition against linguistic minority
schools. This may amount to interference with their right of choice
and, at the same time, may dilute their character of linguistic
minority. It would be impermissible in law to bring such actions
C under the cover of equality which in fact, would diminish the very
essence of their character or status. Linguistic and cultural
compatibility can be legitimately claimed as one of the desirable
features of a linguistic minority in relation to selection of eligible
and qualified teachers.”
D 36.3 It was also observed that despite Rule 64(1)(b), a circular
was issued on 21.03.1986 exempting Minority Institutions from complying
with the requirements of said Rule; and that the subsequent insistence
through circular of September 1989 did not disclose any reason for such
departure and it was, therefore, observed:
E “117. 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 thereof. In its wisdom and
apparently in accordance with law the Government had taken a
F policy decision and issued the Circular dated 21-3-1986 exempting
the minority institutions from complying with the requirements of
Rule 64(1)(b) of the DSE Rules. Despite this and the judgment of
the High Court there was a change of mind by the State that
resulted in issuance of the subsequent Circular of September 1989.
G From the record before us, no reasons have been recorded in
support of the decision superseding the Circular dated 21-3-1986.”
36.4 In the aforesaid circumstances, the appeal was allowed and
it was held that Rule 64(1)(b) and the circular of 1989 would not be
enforceable against Linguistic Minority Schools in the NCT of Delhi.
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37. In Chandana Das (Malakar) vs. State of West Bengal and A
others31 the question that arose was set out in para 6 as under:-
6. … …whether the Institution’s right to select and appoint
teachers is in any way affected by the provisions of the Rules of
Management of Recognised Non-Government Institutions (Aided
and Unaided), 1969 framed under the provisions of the West Bengal B
Board of Secondary Education Act, 1963?”
In terms of Rule 28 teachers on permanent or temporary basis,
against permanent or temporary vacancies, could be appointed only on
the recommendation of the West Bengal Regional School Service
Commission32. However, according to Rule 33, on the application by C
any institution to which the provisions of Articles 26 and 30 of the
Constitution apply, rules could be framed by the State Government.
According to the State, the concerned institution had never claimed
minority status and was never recognised as minority institution. Reliance
was also placed on Rule 8(3) of the Rules for Management of Recognised
Non-Government Institutions (Aided and Unaided), 1969 whereunder D
permission for special constitution was granted to the institution and,
therefore, it was submitted that having accepted the special constitution,
it could not turn around and contend that it was a minority institution as
per special rules framed in terms of Rule 33.
37.1 There was disagreement between the Judges constituting E
the Bench. According to Thakur, J, as the learned Chief Justice then
was, since the institution was set up by Punjabi speaking Sikh community,
a linguistic minority in the State, the mechanism provided for making
appointments under Rule 28 had no application to minority educational
institutions for whom there could be special dispensation under Rule 33. F
During the course of his Judgment, Thakur, J. observed:-
“21. It is unnecessary to multiply decisions on the subject for the
legal position is well settled. Linguistic institution and religious are
entitled to establish and administer their institutions. Such right of
administration includes the right of appointing teachers of its choice G
but does not denude the State of its power to frame regulations
that may prescribe the conditions of eligibility for appointment of
such teachers. The regulations can also prescribe measures to
31
(2015) 12 SCC 140
32
Constituted in forms of 1997 Act – as dealt with in para 6 hereinabove.
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A ensure that the institution is run efficiently for the right to administer
does not include the right to maladministration. While grant-in-aid
is not included in the guarantee contained in the Constitution to
linguistic and religious minorities for establishing and running their
educational institutions, such grant cannot be denied to such
institutions only because the institutions are established by linguistic
B
or religious minority. Grant of aid cannot, however, be made
subservient to conditions which deprive the institution of their
substantive right of administering such institutions. Suffice it to
say that once Respondent 4 Institution is held to be a minority
institution entitled to the protection of Articles 26 and 30 of the
C Constitution of India the right to appoint teachers of its choice
who satisfy the conditions of eligibility prescribed for such
appointments under the relevant rules is implicit in their rights to
administer such institutions. Such rights cannot then be diluted by
the State or its functionaries insisting that the appointment should
be made only with the approval of the Director or by following
D
the mechanism generally prescribed for institutions that do not
enjoy the minority status.”
(Emphasis supplied)
37.2 Banumathi, J., however, found that the concerned institution
E had never claimed to be a minority institution and had, in fact, accepted
the special constitution in terms of Rule 8 (3). It was, therefore, observed:-
“52. The fourth respondent school has accepted the special
constitution and it has not chosen to challenge the same. As rightly
held by the High Court, when the fourth respondent school has
F accepted the special constitution and has not claimed to be a
minority institution, the appellants who are merely employees of
such an institution, cannot contend that the institution was a
minority institution entitled to appoint its own teachers.”
37.3 Because of the disagreement, the matter was directed to be
G placed before a Bench of three Judges of this Court, which has since
then rendered its decision on 25.09.201933. It was noted that Rule 32
specifically declared that nothing in the concerned Rules would apply to
an educational institution established and administered by a minority

33
Reported in 2019 SCC OnLine SC 1253 [Chandana Das (Malakar) vs. State of
H West Bengal and others]
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referred to in clause (c) of Section 2 of the West Bengal Minorities’ A
Commission Act, 1996, which had, in turn, defined expression “minority”
to mean a community based on religion such as Muslim, Christian, Sikh,
Buddhist, or Zorastrian (Parsee). As regards the first question, it was,
therefore, observed in paragraphs 17 to 20 that the Institution was a
minority educational institution. It was also considered whether
B
declaration as to status of the minority institution by the competent
authority was necessary before the institution could claim the status of
being a minority institution. Both the issues which had led to disagreement
between two Judges were thus, squarely answered and the decision of
Thakur, J. was accepted to be the correct view on both counts.
37.4 During the course of its discussion, this Court also considered C
the decision in Ahmedabad St. Xavier’s College5 case and observed:-
“30. A reading of the aforesaid judgment would leave no manner
of doubt that if Respondent No. 4 is a minority institution, Rule 28
of the Rules for Management of Recognized Non-Government
Institutions (Aided and Unaided) 1969, cannot possibly apply as D
there would be a serious infraction of the right of Respondent No.
4 to administer the institution with teachers of its choice.”
DISCUSSION AND CONCLUSION
38. In the backdrop of the decisions of this Court referred to E
hereinabove, we must now consider whether the relevant provisions of
the Commission Act transgress upon the rights of a minority institution
or said provisions can be termed as “tenable as ensuring the excellence
of the institution without injuring the essence of the right”34 of a minority
institution. Right from Re: The Kerala Education Bill9 Case the issue
that has engaged the attention of this Court is about the content of rights F
of minority educational institution and the extent and width of applicability
of regulations and what can be said to be permissible regulations. If the
cases in the first segment i.e. upto the decision in TMA Pai Foundation8
are considered, the following principles emerge:-
A) In Re: The Kerala Education Bill9 Case, Clause 11(2) in G
terms of which the State Public Services Commission was empowered
to select candidates for appointment as teachers in Government and
aided schools, was found to be a permissible regulation. It was observed

34
Expression used by Krishna Iyer J. in the Gandhi Faiz – e-am College case13
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A that such provision, inter alia, was applicable to all educational institutions
and was designed to give protection and security to the teachers engaged
in rendering service to the nation.
B) The decision in Sidhajbhai Sabhai10, however, observed,
“Unlike Art. 19, the fundamental freedom under clause (1) of Art.
B 30, is absolute in terms; it is not made subject to any reasonable
restrictions of the nature the fundamental freedoms enunciated in
Art. 19 may be subjected to.” It went on to add “Regulation made in
the true interests of efficiency of instruction, discipline, health,
sanitation, morality, public order and the like may undoubtedly be
imposed.” It read the decision in Re: The Kerala Education Bill9
C case as “not an authority for the proposition submitted by the
Additional Solicitor General that all regulative measures which are
not destructive or annihilative of the character of the institution
established by the minority, provided the regulations are in the
national or public interest, are valid.” It however laid down a test -
D “Such regulation must satisfy a dual test - the test of reasonableness,
and the test that it is regulative of the educational character of the
institution and is conducive to making the institution an effective
vehicle of education for the minority community or other persons
who resort to it.”
E C) (i) In Ahmedabad St. Xavier ’s College 5 case, while
considering the importance of teachers in an educational institution, Ray
C.J. in his leading judgment observed, “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
F shape of regulatory measures are required to ensure the appointment
of good teachers and their conditions of service.” It was further
stated that “regulations which will serve the interests of the teachers
are of paramount importance in good administration.”
(ii) According to Khanna, J., “The regulations have necessarily
G to be made in the interest of the institution as a minority educational
institution. They have to be so designed as to make it an effective
vehicle for imparting education.”; and “Regulations made in the true
interests of efficiency of instruction, discipline, health, sanitation,
morality, public order and the like may undoubtedly be imposed.” A
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word of caution was also expressed while observing, “The minority A
institutions cannot be allowed to fall below the standards of
excellence expected of educational institutions, or under the guise
of exclusive right of management, to decline to follow the general
pattern. While the management must be left to them, they may be
compelled to keep in step with others.”
B
Khanna, J. then laid down “Balance has, therefore, to be kept
between the two objectives, that of ensuring the standard of
excellence of the institution and that of preserving the right of the
minorities to establish and administer their educational institutions.
Regulations which embrace and reconcile the two objectives can
be considered to be reasonable.”; C

(iii) Mathew, J. however stated, “The question whether a
regulation is in the general interest of the public has no relevance,
if it does not advance the excellence of the institution as a vehicle
for general secular education as, exhypothesi, the only permissible
regulations are those which secure the effectiveness of the purpose D
of the facility, namely, the excellence of the educational institutions
in respect of their educational standards. This is the reason why
this Court has time and again said that the question whether a
particular regulation is calculated to advance the general public
interest is of no consequence if it is not conducive to the interests of E
the minority community and those persons who resort to it.”
D) In Gandhi Faiz-e-am College13, Krishna Iyer, J. found “In
our case autonomy is virtually left intact and refurbishing, not
restructuring, is prescribed. The core of the right is not gouged out
at all and the regulation is at once reasonable and calculated to F
promote excellence of the institution — a text book instance of
constitutional conditions.” The regulation was, however, not found to
be permissible by Mathew, J.
E) In Frank Anthony Public School17 case, it was emphasized,
“The excellence of the instruction provided by an institution would G
depend directly on the excellence of the teaching staff, and in turn,
that would depend on the quality and the contentment of the
teachers.”
39. We now turn to TMA Pai Foundation8 case and consider the
principles that it laid down and whether there was reiteration of the
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A principles laid down in the decisions of this Court in the earlier segment
or whether there was any change or shift in the emphasis.
A) In para 50, five incidents were stated to comprise the “right
to establish and administer” and three of them were stated to be :-
(a) right to admit students;
B
(b) right to appoint staff – teaching and non-teaching; and
(c) right to take disciplinary action against the staff.
The discussion in the leading judgment was under various headings
and the important one being “5. To what extent can the rights of aided
C private minority institutions to administer be regulated?”
B) The earlier decisions of the Court were considered and while
considering the judgment of this Court in Sidhajbhai Sabhai10 case it
was observed:-
“If this is so, it is difficult to appreciate how the Government
D
can be prevented from framing regulations that are in the
national interest, as it seems to be indicated in the passage
quoted hereinabove. Any regulation framed in the national
interest must necessarily apply to all educational institutions,
whether run by the majority or the minority. Such a limitation
E must necessarily be read into Article 30. The right under
Article 30(1) cannot be such as to override the national interest
or to prevent the Government from framing regulations in that
behalf. It is, of course, true that government regulations
cannot destroy the minority character of the institution or
make the right to establish and administer a mere illusion;
F
but the right under Article 30 is not so absolute as to be above
the law.”
C) Thus, the principle laid down in Sidhajbhai Sabhai10 that the
right under Article 30(1) cannot be whittled down by so-called regulative
measures conceived in the interest not of the minority educational
G institution, but of the public or the nation as a whole was not accepted in
TMA Pai Foundation8. The emphasis was clear that any regulation
framed in the national interest must necessarily apply to all educational
institutions, whether run by the majority or the minority and put the matter
beyond any doubt. A caveat was however entered and it was stated that
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the Government regulations cannot destroy the minority character of A
the institution.
D) The leading judgment then observed that the correct approach
would be - what was laid down by Khanna, J. in Ahmedabad St. Xavier’s
College5 case:-
“A balance has to be kept between the two objectives — B
that of ensuring the standard of excellence of the
institution, and that of preserving the right of the minorities
to establish and administer their educational institutions.
Regulations that embraced and reconciled the two
objectives could be considered to be reasonable. This, in C
our view, is the correct approach to the problem.”
E) The majority judgment then summed up the matter and stated:-
“It is difficult to comprehend that the framers of the
Constitution would have given such an absolute right to
the religious or linguistic minorities, which would enable D
them to establish and administer educational institutions
in a manner so as to be in conflict with the other Parts of
the Constitution. ……..
137. …… The right under Article 30(1) has, therefore, not
been held to be absolute or above other provisions of the E
law, 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 F
with the right of administration or management under
Article 30(1).”
It was further laid down :-
“In other words, the essence of Article 30(1) is to ensure
equal treatment between the majority and the minority G
institutions. ….. Laws of the land, including rules and
regulations, must apply equally to the majority institutions
as well as to the minority institutions.”

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A 40. The decision in TMA Pai Foundation8, rendered by Eleven
Judges of this Court, thus put the matter beyond any doubt and clarified
that the right under Article 30(1) is not absolute or above the law and
that conditions concerning the welfare of the students and teachers must
apply in order to provide proper academic atmosphere, so long as the
conditions did not interfere with the right of the administration or
B
management. What was accepted as correct approach was the test laid
down by Khanna, J. in Ahmedabad St. Xavier’s College5 case that a
balance be kept between two objectives - one to ensure the standard of
excellence of the institution and the other preserving the right of the
minorities to establish and administer their educational institutions. The
C essence of Article 30(1) was also stated – “to ensure equal treatment
between the majority and the minority institutions” and that rules
and regulations would apply equally to the majority institutions as well as
to the minority institutions.
41. The decisions of this Court rendered after TMA Pai
D Foundation8 case, may now be considered.
A) In Brahmo Samaj Education Society24, the argument that
the appointment of teachers through College Service Commission would
maintain equal standard of education for all throughout the State was
not accepted and it was observed that the equal standards would be
E maintained by insistence on qualifying tests or examinations. This Court,
however, did not consider whether the Rules in question were valid or
not and left it to the authorities to bring the rules and regulations in
conformity with the principles laid down in TMA Pai Foundation8. It
may be stated here that a review petition has since then been allowed
and the matter now stands referred to a Constitution Bench.35
F
B) The decision of this Court in P.A. Inamdar25 was not directly
concerned with the rights of the minority educational institutions receiving
aid. It, however, dealt with the matter regarding admission of students in
unaided professional educational institutions and observed that the
admission of students in minority unaided professional educational
G institutions must also be governed on the basis of merit. It thus did not
accept the right to admit students to be an unqualified right inhering in a
minority professional educational institution. The discussion in that case
shows that the admissions based on merit in professional educational

35
H As observed in para 41 of Chandana Das – (2019) SCC Online SC 1253
SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI 299
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institutions were found to be in the national interest and strengthening A
the national welfare.
(C) Malankara Syrian Catholic College6 was concerned with
selection and appointment of a Principal in an unaided minority educational
institution. It was stated in para 19 that the right conferred on minorities
under Article 30 was only to ensure equality with majority and was not B
intended to place the minorities in a more advantageous position vis-à-
vis the majority and that there was no reverse discrimination in favour of
minorities and that the general laws of the land relating to national interest,
would equally apply to minority institutions. It was also observed that the
Principal or Headmaster of any educational institution would be
responsible for functional efficiency of the institution and also for the C
quality of education and discipline in the educational institutions as well
as maintaining the philosophy and objects of the institution. On that
premise, the right to choose a Principal was accepted to be part of the
right of a minority educational institution. It also relied upon the decision
in N. Ammad23 case which in turn had relied upon the Full Bench decision D
of the Kerala High Court. It was, therefore, stated that the power to
choose a Headmaster was always recognised as an important facet of
the right to the administer the educational institutions.
(D) Sindhi Education Society7 was concerned with the issue
whether instructions could be issued to fill up the posts of teachers in an E
unaided minority institution in accordance with the principles and policy
of reservation. The concerned rules empowered the authority to issue
such instructions. However, a Circular was issued on 21.03.1986
exempting minority institutions from complying with the said Rule. The
subsequent insistence through Circular of September, 1989, which did
not disclose any reason for departure was not held to be enforceable. F
The discussion in the case undoubtedly deals with the issue whether the
minority educational institutions have a right to choose persons to be
appointed as teachers and could there be any regulations and could that
right be in any way affected by regulations. However, in the context of
a Linguistic Minority Schools it was observed that such institutions must G
have a right to select the best teachers who not only satisfy the prescribed
criteria, qualification and eligibility but also ensure better cultural and
linguistic compatibility. Since, the candidates nominated in terms of
powers conferred by Rule 64(1)(b) and the instructions issued in Circular
of September, 1989 would not satisfy such requirements and ensure
compatibility, the appeal was allowed. H
300 SUPREME COURT REPORTS [2020] 1 S.C.R.

A (E) In Chandana Das31, the principal issue was whether the
concerned institution was a minority institution or not. On that issue,
there was a disagreement between two Judges of this Court and the
matter was referred to a Bench of three Judges which accepted the
view of Thakur, J. and held that the institution was a minority educational
institution33. The issue arose in the context whether recommendations
B
of the West Bengal School Service Commission as regards appointments
of teachers against permanent or temporary vacancies could be validly
issued in so far as a minority educational institution was concerned. It
may be stated that in terms of Section 15 of 1997 Act, nothing in that Act
would apply to “a School established and administered by a minority
C whether based on religion or language” and as such the
recommendations of the West Bengal School Service Commission could
never apply to a minority institutions. Once the view taken by Thakur, J.
was accepted and it was held that the institution was a minority institution,
by virtue of said Section 15, the West Bengal School Commission could
not be competent to issue any direction.
D
45. Thus, going by the decision of eleven Judges of this Court in
TMA Pai Foundation8, so long as the principles laid down therein (as
culled out in para 40 hereinabove) are satisfied, it is permissible if any
regulations seek to ensure the standard of excellence of the institutions
while preserving the right of the minorities to establish and administer
E their educational institutions.
Out of five incidents which constitute “the right to establish and
administer” an educational institution as noted in para 50 of the leading
judgment in TMA Pai Foundation8, the right to admit students has not
been considered to be an absolute and an unqualified right. The decision
F in P.A. Inamdar25 shows that in professional educational institutions or
those imparting higher education, merit based selection has been taken
to be in the interest of the nation and subserving and strengthening the
national welfare. Selection of meritorious students has been accepted
to be in the national interest. A minority institution cannot in the name of
G right under Article 30(1) of the Constitution, disregard merit or merit-
based selection of students as regards professional and higher education.
The right to take disciplinary action against the staff has also not been
accepted to be an unqualified right. TMA Pai Foundation8 itself lays
down that even in an unaided minority educational institution, a mechanism
must be evolved and appropriate Tribunal must be constituted to consider
H the grievances and till then the Tribunals could be presided over by a
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judicial officer of the rank of a District Judge. To that extent, there was A
a definite departure from the law laid down in Ahmedabad St. Xavier’s
College5 case which had struck down Sections 51-A and 52-A of the
Gujrat University Act, 1949.
46. When it comes to the right to appoint teachers, in terms of law
laid down in TMA Pai Foundation8 a regulation framed in the national B
interest must necessarily apply to all institutions regardless whether they
are run by majority or minority as the essence of Article 30(1) is to
ensure equal treatment between the majority and minority institutions.
An objection can certainly be raised if an unfavourable treatment is
meted out to an educational institution established and administered by
minority. But if ensuring of excellence in educational institutions is the C
underlying principle behind a regulatory regime and the mechanism of
selection of teachers is so designed to achieve excellence in institutions,
the matter may stand on a completely different footing.
47. The test accepted in TMA Pai Foundation8, and the balance
between two objectives can well be considered in the context of two D
categories of institutions; one imparting education which is directly aimed
at or dealing with preservation and protection of the heritage, culture,
script and special characteristics of a religious or a linguistic minority;
while the second category of institutions could be those which are
imparting what is commonly known as secular education. When it comes
to the institutions in the former category, the teachers who believe in the E
religious ideology or in the special characteristics of the concerned minority
would alone be able to imbibe in the students admitted in such educational
institutions, what the minorities would like to preserve, profess and
propagate. But, if the subjects in the curriculum are purely secular in
character, that, is to say, subjects like Arithmetic, Algebra, Physics, F
Chemistry or Geography, the intent must be to impart education availing
the best possible teachers. In the first category, maximum latitude may
be given to the managements of the concerned minority institutions as
they would normally be considered to be the best judges of what would
help them in protecting and preserving the heritage, culture, script or
such special features or characteristics of the concerned minorities. G
However, when it comes to the second category of institutions, the
governing criteria must be to see to it that the most conducive atmosphere
is put in place where the institution achieves excellence and imparts best
possible education.
H
302 SUPREME COURT REPORTS [2020] 1 S.C.R.

A 48. As laid down in the leading judgment in Ahmedabad St.
Xavier’s College5 case, regulations which will serve the interest of the
students so also regulations which will serve the interest of the teachers
are of paramount importance in good administration; that regulations in
the interest of efficiency of teachers are necessary for preserving
harmony amongst the institutions; and that the appointment of teachers
B
is an important part in educational institutions. It is quite natural that
qualitatively better teachers will ensure imparting of education of the
highest standard and will help in achieving excellence. As accepted in
Frank Anthony Public School17 case, the excellence of the instruction
provided by an institution would depend directly on the excellence of the
C teaching staff and would in turn depend inter alia on the quality of
teachers.
49. Thus, if the intent is to achieve excellence in education, would
it be enough if the concerned educational institutions were to employ
teachers with minimum requisite qualifications in the name of exercise
D of Right under Article 30 of the Constitution, while better qualified
teachers are available to impart education in the second category of
institutions as stated hereinabove. For example, if the qualifying percentile
index for a teacher to be appointed in an educational institution, considering
his educational qualifications, experience and research, is required to be
50, and if teachers possessing qualifications far greater and higher than
E this basic index are available, will it be proper exercise for a minority
educational institution to select teachers with lower index disregarding
those who are better qualified? Will that subserve pursuit of excellence
in education? One can understand if under the regulatory regime
candidates who are otherwise less qualified are being nominated in the
minority educational institution and the minority educational institution is
F
forced to accept such less meritorious candidates in preference to better
qualified candidates. In such cases, the minority educational institution
can certainly be within its rights to agitate the issue and claim a right to
choose better teachers. But if the candidates who are selected and
nominated under the regulatory regime to impart education which is purely
G secular in character, are better qualified, would the minority institution
be within its rights to reject such nomination only in the name of exercise
of a right of choice? The choice so exercised would not be in pursuit of
excellence. Can such choice then be accepted?
If the right is taken to be absolute and unqualified, then certainly
H such choice must be recognised and accepted. But, if the right has not
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been accepted to be absolute and unqualified and the national interest A
must always permeate and apply, the excellence and merit must be the
governing criteria. Any departure from the concept of merit and excellence
would not make a minority educational institution an effective vehicle to
achieve what has been contemplated in various decisions of this Court.
Further, if merit is not the sole and governing criteria, the minority
B
institutions may lag behind the non-minority institutions rather than keep
in step with them.
Going back to the example given above, as against index of 50 i.e.
the minimum qualifying index, if a candidate nominated under the
regulatory regime is at an index of 85, selection by a minority educational
institution of a candidate at an index 55 may certainly be above the C
minimum qualifying mark, but in preference to the one at the index of 85
who is otherwise available, the appointment of a person at the index
level of 55, will never give the requisite impetus to achieve excellence.
A meritorious candidate at the index level of 85 in the above example, if
given the requisite posting will not only help in upholding the principle of D
merit but will in turn generate an atmosphere of qualitative progress and
sense of achievement commensurate with societal objectives and ideology
and such posting will, therefore, be in true national interest.
50. At the cost of repetition, it needs to be clarified that if the
minority institution has a better candidate available than the one nominated
under a regulatory regime, the institution would certainly be within its E
rights to reject the nomination made by the authorities but if the person
nominated for imparting education is otherwise better qualified and suitable,
any rejection of such nomination by the minority institution would never
help such institution in achieving excellence and as such, any such
rejection would not be within the true scope of the Right protected under F
Article 30(1) of the Constitution.
51. With these basic principles in mind, we may now consider the
statutory provisions under which the teachers could be nominated under
the Commission Act and see whether the concerned regulations help in
achieving excellence or whether those provisions are violative of the
Rights of the minority institutions. G
52. In terms of Section 4 of the Commission Act, the Commission
is to consist of a Chairman and four Members. The Chairman of the
Commission has to be an eminent educationist having profound knowledge
in Islamic Culture and must be well versed in education with teaching
experience inter alia as a teacher of a University or as a Principal of a H
304 SUPREME COURT REPORTS [2020] 1 S.C.R.

A college, for a period of not less than twelve years. It is true that the
latter part of Section 4(ii) speaks of an officer of the State Government
not below the rank of Joint Secretary who could also be appointed as the
Chairman of the Commission. But in our view, considering the nature of
duties that the Chairman is to discharge, even an officer of the State
Government has to be a person with profound knowledge in Islamic
B
Culture. Apart from the Chairman, there are four Members who are to
be appointed in terms of Section 4(iii) of the Commission Act. Out of
these four Members, one has to be an eminent educationist having
profound knowledge in Islamic Theology and Culture, while the other
two Members must have teaching experience inter alia as a teacher of
C a University, or a Principal of a College for a period of not less than ten
years. The fourth member could be a non-educationist, but he must have
held the position of eminence in public life or in Legal or Administrative
Service. Predominant composition of the Commission is thus of
educationists and two of them have to be persons with profound
knowledge in Islamic Culture and Islamic Theology. The provisions of
D
the Commission Act are thus specially designed for Madrasahs and
Madrasah Education System in the State. Rule 8 of the 2010 Rules
stipulates fair and transparent process of merit based selection and the
statutory mechanism would ensure that only those teachers would be
selected who would be best suited to impart education in Madrasah
E Education System. The State Legislature has taken care to see that the
composition of the Commission would ensure compatability of the
teachers who would be selected to impart education in Madrasah
Education System, which is also emphasized in the Statement of Objects
and Reasons.
53. It is true that the recommendations or nominations of teachers
F
made by the Commission are otherwise binding on the Managing
Committees of concerned Madrasahs, but, in terms of second proviso to
Section 10 of the Commission Act, if there be any error, it is open to the
Managing Committee of the concerned Madrasah to bring it to the notice
of the Commission for removal of such error. The concept of ‘error’ as
G contemplated must also include cases where the concerned Madrasah
could appoint a better qualified teacher than the one nominated by the
Commission. If any such error is pointed out, the Commission will
certainly have to rectify and remove the error. The further protection is
afforded by Section 12 of the Commission Act, under which the
concerned Madrasah could be within its rights to refuse to issue
H
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appointment letter to the candidate recommended by the Commission if A
any better qualified candidate is otherwise available with the managing
committee of the concerned Madrasah. Such refusal may also come
within the expression ‘any reasonable ground’ as contemplated in Section
12(i) of the Act.
The legislature has thus taken due care that the interest of a B
minority institution will always be taken care of by ensuring that i) in
normal circumstances, the best qualified and suitable candidates will be
nominated by the Commission; ii) and in case there be any error on part
of the Commission, the concerned Managing Committee could not only
point out the error which would then be rectified by the Commission but
the Managing Committee may also be within its rights in terms of Section C
12 (i) to refuse the nomination on a reasonable ground.
54. The regime put in place by the State legislature thus ensures
that the Commission comprising of experts in the field would screen the
talent all across the State; will adopt a fair selection procedure and select
the best available talent purely on merit basis; and even while nominating, D
the interest of the minority institution will also be given due weightage
and taken care of. The statutory provisions thus seek to achieve
‘excellence’ in education and also seek to promote the interest of the
minority institutions. The provisions satisfy the test as culled out in the
decision of this Court in TMA Pai Foundation8 case.
55. In our considered view going by the principles laid down in E
the decision in TMA Pai Foundation case8, the concerned provisions
cannot, therefore, be said to be transgressing the rights of the minority
institutions. The selection of the teachers and their nomination by the
Commission constituted under the provisions of the Commission Act
would satisfy the national interest as well as the interest of the minority F
educational institutions and said provisions are not violative of the rights
of the minority educational institutions.
56. The aforesaid conclusions have been arrived at by us in keeping
with the principles laid down by this Court in TMA Pai Foundation8
case.
G
We are aware that in Brahmo Samaj Education Society24,
Sindhi Education Society7 and Chandana Das (Malakar)33, decided
after TMA Pai Foundation8, this Court had also dealt with the question
whether the concerned authorities could validly nominate teachers to be
appointed in minority educational institutions. Brahmo Samaj Education
Society24 did not specifically deal with the question whether rules were H
306 SUPREME COURT REPORTS [2020] 1 S.C.R.

A valid or not and left it to the authorities to bring the rules and regulations
in conformity with the principles in TMA Pai Foundation8 case. Sindhi
Education Society7 dealt with the issue in the context of reservation. It
also found that the teachers nominated by the concerned authorities
would not be compatible to teach in educational institutions run by
linguistic minorities. In Chandana Das (Malakar)33 the basic issue
B was whether the concerned institution was a minority institution or not.
Sindhi Education Society7 and Chandana Das (Malakar)33 dealt with
statutory regimes which did not have any special features or matters
concerning compatibility of teachers which could be required going by
the special characteristics of the minority educational institutions.
C However, the additional feature in the present matter shows that the
composition of the Commission with special emphasis on persons having
profound knowledge in Islamic Culture and Theology, would ensure
that the special needs and requirements of minority educational institutions
will always be taken care of and thus the present case stands on a
different footing.
D We, therefore, have no hesitation in going by the test culled out in
the TMA Pai Foundation8 and hold that the provisions of the Commission
Act are not violative of the rights of the minority educational institutions
on any count.
57. In the premises, while allowing these appeals, we set aside
E the view taken by the Single Judge and the Division Bench of the High
Court and dismiss Writ Petition No.20650(W) of 2013 and other
connected matters. We also hold Sections 8, 10, 11 and 12 of the
Commission Act to be valid and constitutional.
58. In the end, we declare all nominations made by the Commission
in pursuance of the provisions of the Commission Act to be valid and
F operative. However, if after the disposal of the matters by the High
Court any appointments are made by the concerned Madarshas, such
appointments of teachers shall be deemed to be valid for all purposes.
But the Commission shall hereafter be competent to select and nominate
teachers to various Madarshas in accordance with the provisions of the
G Commission Act and the Rules framed thereunder.
59. With the aforesaid observations these appeals are allowed.
No separate orders are required to be passed in respect of Writ Petitions
and contempt petitions which stand disposed of in terms of declaration
as above. No orders as to costs.

H Kalpana K. Tripathy Appeal disposed of.