Holding

Section 12 of the Delhi School Education Act is void to the extent it makes Sections 8‑11 inapplicable to unaided minority schools (except Section 8(2)), and the remaining provisions of Chapter IV are a permissible regulation that does not violate Article 30(1).

Summary

The Frank Anthony Public School Employees Association filed a writ petition under Article 32 seeking equalisation of pay and service conditions with government schools and a declaration that Section 12 of the Delhi School Education Act, which exempted unaided minority schools from Chapters IV and V, violated Articles 14, 21 and 23. The Court examined whether the exemption infringed the minority right under Article 30(1) to administer educational institutions. It held that Section 12 was discriminatory because it made Sections 8‑11 inapplicable to unaided minority schools, except for Section 8(2) which was also struck down. The Court declared Section 12 void to that extent, directed enforcement of Chapter IV (except Section 8(2)) on the Frank Anthony Public School, and set aside the suspension orders against four teachers. The petition was allowed.

Issues considered

Whether Section 12 of the Delhi School Education Act violates Articles 14, 21 and 23 of the Constitution.
Whether Sections 8‑11, particularly the equal‑pay provision (Section 10) and the prior‑approval and appeal provisions (Section 8), infringe the minority right under Article 30(1).
Whether the exemption of unaided minority schools from regulatory provisions is discriminatory.
Whether the suspension orders issued against staff members are valid in view of the statutory scheme.

Legislation cited

Delhi School Education Acts. 10, s. 11, s. 12, s. 13, s. 14, s. 15, s. 8, s. 9

Subjects

equal payminority educational institutionArticle 30discriminationDelhi School Education Actunaided minority schoolemployment conditionsconstitutional validityArticle 14Article 21Article 23suspension orders

Judgment

FRANK ANTHONY PUBLIC SCHOOL EMPLOYEES
A
ASSOCIATION
v.
UNION OF INDIA & ORS.

NOVEMBER 17, 1986
B
[O. CHINNAPPA REDDY AND G.L. OZA, JJ.]

Equal pay for equal work, principle as envisaged in section JO of ~
the Delhi School Education Act made inapplicable to an unaided
minority school by section 12, thereof-Whether section 12 is hit by
c Articles I4, 2I and 23 of the Constitlltion-Whether sections 8 to I I -'"'{-
impinge on the right of the minorities to administer educational institu-
tions of their choice envisaged in Articie 30 of the Constitution.
.
--
Chapter IV of the Delhi School Education Act, comprising of
sections 8 to 12 deal with "Terms and conditions of service of employees
D of recognised private schools". Chapter V consisting of sections 13 to 15
contains "the provisions applicable to unaided minority schools". Sec-
tion lil( I) specifically requires that, "the scales of pay and allowances,
medical facilities, pension, gratuity, provident fund and other pres-
cribed benefits of the employees of a recognised private school shall not
be less than those of the employees of the corresponding status in
E schools run by the appr;,priale authority". But section l2 provides,
"Nothing contained in this Chapter shall apply to an unaided minority
school." Chapter V contains certain provisions relating to unaided
minority schools.

F
The effect of section 12 of the Act is to make sections 8. 9. I0 and I I
inapplicable to unaided minority schools: First, the Administrator may
not make rules regulating the conditions of service of employees of
-
unaided minority schools. But so far as the minimum qualifications for
recruitment of employees are concerned, Section 13 enables the
Administrator to make regulations even in respect of_ unaided minority i. -
· schools. Second, ti.~ prior approval of the Director need not be obtained
G for the dismissal, removal. reduc:tion in rank or termination of service
otherwise than hy dismissal or removal of an employee of an unaided
minority sc'iool. Third. against such dismissal, removal or reduction in
rank, there is to be no appeal. Fourth, neither prior nor subsequent
approval of the Director need be obtained to suspend any of the emp-
loyees of an unaided minority school. Fifth, the scales of pay and allo-
H wances, medical facilities, pension, gratuity, provident fund and other

238
F.A. PUBLIC SCHOOL v. UNION OF INDIA 239

benefits which may be given to employees are subject to no regulation A
except that they should be contained in a written contract of service and
need not conform to the scales of 11ay and _allowances etc. of the em-
ployees of the corresponding status in schools run hy the appropriate
authority as in the case of other recognised private schools.

Frank Anthony Public School is a recognised unaided minority B
school within the meaning ofsections 2(x) read with 2(e), 2(o) and 2(1) of
the. Act. In the matter of emoluments and conditions of service such as
leave etc., teachers and employees of the Frank Anthony Public School
lag far behind the teachers and employees of Government schools.
}-·several other conditions of service of teac~ers and employees also com-
• are unfavourably with the conditions of service of teachers and emp- c
loyees of Government Schools. But for section 12 and if sections 8 to 11
were applicable to them, they would at least be as well off as teachers
and other employees of Government Schools. The Petitioner associa-
tion, therefore, has filed the writ petition under Article 32 of the
Constitution, seeking equalisation of their pay scales and conditions of
service with those of their counterparts in Government Schools and for D
a declaration that section 12 of the Act is void and constitutionally
invalid as offending Articles 14, 21 and 23 of the Constitution.

Sometime after the filing of the writ petition and before the pre-
liminary hearing of the writ petitions, some developments took place. ·
On May 9, 19!!6 at 10.30 A.M. during the daily school break between 10 E
A.M. and 10.40 A.M. the teaching staff other than one or two teachers
who are required to be on duty, took out a .. silent march" which was
joined by the Class IV Staff also. Except those on duty, all the others
took part in the "silent march". Classes were resumed al 10.40 A.M.
and were not affected in any manner. There were no speeches, no
, --;-.\ shouting of slogans, no violence and no disruption of studies., But even F
) · so a notice was i.Sued by the principal on April 10, 1986 warning the
· J. members of the staff. Despite the warning a similar silent march was
' taken out on April 10, 1986 also. The management issued orders of
suspension against Mrs. Malik, Mrs. Dhar, Mrs. Balman and Mr.
Bush. The Petitioner Association ·challenged the said suspension orders
as well and sought stay of the operation of the orders of suspension of G
the four teachers.

The respondents in response to the "Rule Nisi" contended; (i)
that the classification made by section 12 was perfectly valid; (ii) that
but for section 12, sections 8 to 11 would have to be held to interfere
with the right guaranteed by Article 30 of the Constitution to religious H
240 ' SUPREME COURT REPORTS [1487] I S.C.R.

A and ·linguistic minorities to administer educational institutions of their
choice; (iii) the petitioner school was an educational institution of great
repute whose excellence spoke for itself and therefore it did not necessi-
tate any regulation by any other authority; (iv) that the scale of fee
should continue to be low so that it may be within the reach of the
ordinary people whom it was intended to reach. It was because of this
B desire of the management to keep the scale of fee low that the manage-
ment could not pay higher salaries and allowances; and (v) that if
section l 2 was struck down and the management was compelled to pay
the same scale of salary and allowances as was paid to employees of
Government schools, the Frank Anthony Public School would have to , J
be closed down. ' l
c
Allowing the writ petition, the Court,

HELD: l. Section 12 of the Delhi School Education Act which
makes the provisions of Chapter IV inapplicable to minority institutions
. is discriminatory· and void not only because it makes section I0 inappli-
D cable to minority institutions, but also because it makes sections 8( I),
8(3), 8(4), 8(5), 9 and l 1 inapplicable tu unaided minority institutions.
That the Parliament did not understand sections 8 to I l as offending the
fundamental right guaranteed to the minorities under Article 30( l) is
evident from the fact that Chapter IV applies to aided minor;ty institu-
tions and it cannot for a moment he suggested that surrender of the ·
E right under Article 30( l) is the price which the aided minority institu-
tions have to pay to obtain aid from the Government. [2nG-273AI

2. l From the decided cases, it is clear, that there is a general and
broad consensus about the content and dimension of the Fundamental
Right guaranteed by Article 30( l) of the Constitution. The right
F guaranteed to religious and linguistic minorities by Article 30( I ) is two
fold, to establish and to administer educational institutions of their
choice. The key to the Article lies in the words "of their own choice".
These words indicate that the extent of the right is to be determined, not
with reference to any concept of State necessity and general societal
interest but with reference to the educational institutions themselves,
G that is, with reference to the goal of making the institutions "effective
vehicles of education for the minority community or other persons who
resort to them". It follows that regulatory measures which are designed
towards the achievement of the goal of making the minority educational
institutions effective instruments for imparting education cannot be
considered to impinge upon the right guaranteed by" Article 30( I) of the
H Constitution. The question in eacH case is whether the particular mea-
F.A. PUBLIC SCHOOL v. UNION OF INDIA 24 l

sure, it in the ultimate analysis, designed to achieve such goal, without A
of course nullifying any part of the right of management in substantial
measure. [267C-E]

In re Kerala Education Bill, 1957 [1958] SCR 995; Rev. Sidha·
jbhai School and Ors., v. State of Bombay and Anr., [1963] 3 SCR 837;
State of Kera/a etc v. Mother Provincial etc, [1971] l SCR 734; The B
> Ahmedabad St. Xaviors College Society & Anr., v. State of Gujarat and
Anr., [ 1975] I SCR 173; All Saints High School etc., v. The Govern·
ment of Andhra Pradesh AIR 1960 SC 1042 discussed.

-· 2.2 What was decided by the Supreme Court in In re Kera/a
Educational Bill, 1957 was that Anglo-Indian Schools which were en-
titled to receive grants under the Constitution and which received no
more aid than that to which they were entitled under the Constitution
c

could not be subjected to stringent terms as fresh or additional condi-
tions precedent to enable them to obtain the grant. Such conditions
would infringe their rights under Article 337 and violate their rights
under Article 30(1). To place an interpretation that any conditions D
imposed for granting recognition to unaided minority educational in·
stitutions would infringe on the right of administration granted to them
by Article 30( l) of tile Constitution would be subversive of the right
guaranteed by Article 30(1) since it would make the extent of the right
depend on the receipt or non-receipt of aid. If one thing is clear, it is this
that the Fundamental Right guaranteed .by Article 30( !) cannot be sur- E
rendered, wholly or partly, and the authorities cannot make the
grant of aid conditional on the surrender of a part of the Fundame,;tal
-- Right. [2530-E]

2.3 Sections 8(1), 8(3), '8(4) and 8(5) do not encroach upon any
right of minorities to administer their educational institutions. Section F
8(2), however does interfere with such right and, therefore, inappli-
cable to minority institutions section 4 is again innocuous since section
9 which applies to unaided minority schools is virtually on the same
lines as sectioq 9. [272F-G]

2.4 Section 8( l) merely empowers the Administrator to make G
rules regulating the minimum qualifications for recruitment, and the
conditions of service of recognised private schools. Section 8(1) is in-
~- micuous and in fact section 13 which applies to unaided minority
schools is almost on the same lines as section 8(1 ). Section 8(2) which
requires the prior approval of the Director for the dismissal, removal,
reduction in rank or other termination of the services of an employee of H
2-12 SUPREME COURT REPORTS [!'187] l_ S.C.R.

a recognised private school is objectionable. Section 8(3) provides for an
A
appeal to the Tribunal constituted under s. II, that is, a Tribunal
;.,
consisting of a person who has hold office as a District Judge or any
equivalent judicial office. The appeal is not to any departmental official
hut to a Tribunal ma.toed by a person who has held office as a District
Judge and who is required to exercise his powers not arbitrarily hut in
B the same manner as a court of appeal under the Code of Civil Proce-
dure. The right of appeal itself is confined to a limited class of cases,
namely, those of dismissal, removal or reduction in rank and not to
every dispute between an employee and the management. The limited
right of appeal, the character of the authority constituted to hear the
appeal and the manner in which tm appellate power is required to he exerci- ~·
sed make the provision for an appeal perfectly reasonable. [270E-G, 27 !D-F)
'
c
2.5 Section 8(4) would he inapplicable to minority institutions ifit
had conferred blanket power on the Director to grant or withhold prior
approval in every ca'!e where a management proposed to suspend an
employee but it is not so. The management has the right to order im-
D mediate suspension of an employee in case of gross misconduct hut in
order to prevent an abuse of power by the management a safeguard is
provided to the employee that approval should he obtained within I5
days. The Director is also hound to accord his approval if there are
adequate and reasonable grounds for such suspension. The provisions is
eminently reasonable and sound. [271H-272B)
E
The Ahmedabad St. Xaviers College Society & Anr. v. State of
Gujarat and Anr., (1975) I SCR 173; All Saints High School etc. v. The
Government of Andhra Pradesh AIR 1%0 SC 1042 referred to.
-~

2.6 The excellence of the instruction provided hy an institution
F would depend directly on the excellence of the teaching staff, and in /'"\
'
turn, that would depend on the quality and the contentment of the t
teacher. Conditions of service pertaining to minimum qualifications of l_
teachers, their salaries, allowances and other conditions of service
which ensure security, contentment and decent living standards to
teachers and which will consequently enable them to render better
G service to the institution and the pupils cannot surely be said to be
violative of the fundamental right guaranteed by Article 30( I) of the
Constitution. The management of a minority Educational institution
cannot be permitted under the guise of the fundamental right guaran-
teed by Article 30(1) of the Constitution, to oppress or exploit its
employees any more than any other private employee. Oppression or
H exploitation of the teaching staff of an educational institution is hound
F.A. PUBLIC SCHOOL v. UNION OF INDIA 243

to lead; inevitably, to discontent and deterioration of the standard of A
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 deniei; the very object of
Article 30(1) which is to make the institution an effective vehicle o~ B
education. Therefore, section JO of the Delhi Education Act which re-
quires that the scales or pay and allowances, medical facilities, pension,
gratuity, provident fund and other prescribed benefits of the employees

r--
,
of a recognised private school shall not be less than those of the emp·
loyees of the corresponding status in schools run by the appropriate
authority and which further prescribes the procedure for enforcement c
of the requirement is a permissible regulation. aimed at attracting com·
petent staff and consequently at the excellence of the educational in-
stitution. It is a permissible regulation which in no way detracts from
the fundamental right guaranteed by Article 30( I) to the minority in-
stitution to administer their educational institutions. Therefore to the
extent that section 12 makes section IO inapplicahle to unaided minority D
institutions, it is clearly discriminatory. [269B-E, 270C-D I

The Ahmedabad St. Xaviers College Society & Anr:, v. The State
of Gujarat & Anr., (1975) 1 SCR 173; In re Kerala Education Bill,

•
1957, (1958] SCR 995; The State of Kerala v. Mother Provincial (1971)
1 SCR 734; All Saints High Schbol v. Government of Andhra Pradesh E
AIR 1960 SC 1042 relied on~

ORIGINAL JURISDICTION: Writ Petition (Civil) No. 587 of
1986
F
Under Article 32 of the Constitution of India.

C.S. Vaidyanathan, M.K.S. Menon and S.R. Bhatt for the
Petitioner.

G. Ramaswamy, Additional Solicitor General, Miss Sushma G
Relan and R.D. Agarwala for the Responde~t.

... Frank Anthony. Sushi! Kumar and S.P. Mitra for fi.espondent
No.3.
H
The Judgment of the Court was delivered by
244 SUPREME COURT REPORTS [1987] I S.C.R.

A CHINNAPPA REDDY, J. The scales of pay and other conditions
of service of teachers and other employees of the Frank Anthony
Public School New Delhi compare very unfavourably with those of
their counterparts of the Delhi Administration Schools. The scales of
pay of teachers, primary, T.G.T. or middle, and senior or P.G.T. of
Government schools (that is, schools run by the Delhi Administra-
B tion), as of today, are 1200-30-1560-EB-40-2000, 1400-40-1600-50-
2300-EB-60-2600 and 1640-60-2600-EB-75-2900 respectively. Primary
and middle school teachers are entitled to House Rent Allowance of
Rs.250. City Compensatory Allowance of Rs. 75 and .Medical Allo-
wance of Rs.25 while, Senior school teachers are entitled to House
Rent Allowance of Rs.450, City Compensatory Allowance of Rs. 100
and Medical Allowance of Rs.25. At the starting point a primary school
c teacher gets a total sum of Rs. 1540 per month by way of salary and
allowances, a middle school teacher gets a total sum of Rs. 1750 and a
senior school teacher a total sum of Rs.2215. The scales of pay of
primary, middle and senior school teachers of the Frank Anthony
Public School are 275-20-475-25-600-25-725, 300-25-550-30-770-30-850
D and 400-30-700-35-875-35-1050. They get allowances of Rs. 702.50, 715
and 765 respectively. At the starting point the salary and allowances
together come to Rs. 977.50, 1015 and 1165 respectively. In the case of
teachers of Government schools they are entitled to gratuity of 15
days' pay for every year of service, Provident Fund at the rate of
8.33% and Leave Travel Concession once every two years to their
E home town. In the case of teachers of the Frank Anthony Public 1
School there is provision for Contributory Provident Fund and Family \.
Pension only. Teachers of Government schools are entitled to Casual
Leave of 12 days, Earned Leave of IO days, Sick Leave of IO days and
Maternity Leave of 90 days, whereas, teachers of the Frank Anthony
Public School are entitled to Casual Leave of 10 days, no Earned
F Leave, Sick Leave of 14 days and Maternity Leave of 30 days. In the
case of Class IV employees, in Government schools, the scale of pay is
750-8-790-EB-!0-940 with House Rent Allowance of Rs.150, City
Compensatory Allowance of Rs.30 and Medical Allowance of Rs.25.
The scale of pay of Class IV employees of the Frank Anthony Public
School is 70-5-120-7.50-195 with allowances of Rs.473. The total start-
G ing salary and allowances of Class IV employees in Government
Schools and the Frank Anthony Public School are Rs. 955 and Rs.5~3
respectively. It is evident that in the matter of emoluments and condi-
tions of service such as leave etc. teachers and employees of the Frank
Anthony Public School lag far,behind the teachers and employees of
Government schools. There are other conditions of service of teachers
H. and employees of the Frank Anthony Public School which also com-
F.A. PUBLIC SCHOOL v. UNION OF INDIA' (REDDY, J.] 245

pare unfavourably with the conditions of service of teachers and em-
A
ployees of Government Schools. The Frank Anthony Public School
employees Association seeks equalisation of their pay scales and con-
. ditions of service with those of teachers and employees of Government
Schools. Sections 8 to 12 of the Delhi School Education Act together
comprise .Chapter IV of that Act which deals with "Terms and condi-
tions of service of employees of recognised private Schools." If Sec- B
tions 8 to 11 were applicable to the teachers and other employees of
the Frank Anthony Public School, they would at least be as well off as
teachers and other employees of Government Schools. But section 12

-- )--.Provides, "Nothing contained in this Chapter shall apply to an unaided
, minority school." The Frank Anthony Public School is an unaided
minority school. By the force of Section 12 of the Act, the provisions
of Sections 8 to 11 do not apply to the Frank Anthony Public School.
c
Therefore, \he Frank Anthony Public School Employees Association
has sought from this Court a declaration that section 12 of the Delhi
School Education Act is unconstitutional as being violative of Articles
14, 21 and 23 of the Constitution. A similar declaration is sought in
regard to Section 21 of the Act also but Is not pressed before us. A D
direction is also sought to the respondents, the Union of India and the
Delhi Administration to enforce all the provisions of the Delhi ~chool
Education Act, other th'!n Sections 12 and 21, and "to fix the pay,
allowances, benefits etc. to persons employed in the schools governed
by the Act in relation to unaided minority schools at par with the
persons employed in other schools." E

It appears that sometime after the filing of the writ petition and
before the preliminary hearing of the writ petition some developments
took place to which it is necessary to refer here. On May 9, 1986 at
10.30 a.m. the teaching staff other than those on duty took out 'a silent
/""'-\
march' which was joined by the Class IV staff also. The school hours F
have a break between 10.00 a.m. and 10.40 a.m. During the break only
one or two teachers are on duty. Except those on duty, all the others
took part in the 'silent march'. Classes were resumed at 10.40 a.m. and
were not affected in any manner. There were no speeches, no shouting
of slogans, no violence and no disruption of studies. But even so a
notice was issued by the principal on April 10,_ 1986 warning the mem- G
bers of the staff. Despite the warning a similar 'sil~nt march' was taken
out on April 10, 1986 also. The management issued orders of suspen-
sion against Mrs. Malik, Mrs. Dhar, Mrs. Balman and Mr. Bush.
While granting 'Rule Nisi' in the main writ petition, this Court also
granted stay of operation of the orders of suspension of the four
teachers. The inquiries against them were also stayed. H
l
SUPREME COURT REPORTS [ l987] l S.C.R.

The attack of the petitioner against Section 12 of the Delhi
A Education Act was based on Art. 14 while the provisions were sought
to be sustained by the respondents on the basis of Article 30 of the
Constitution. While it was argued by Mr. Vaidyanathan, learned
counsel for the petitioner that Section 12 was hit by Art. 14 and that
Sections 8 to 11 did not, in any manner, impinge upon Article 30 of the
B Constitution, it was argued, on behalf of the respondents, by the
learned Additional SoliCitor-General and by Shri Frank Anthony, that
the classification made by Section 12 was perfectly valid and that, but
for Section 12, Sections 8 to 11 would have to be held to interfere with
the right guaranteed by Art. 30 to religious and linguistic minorities to.-/
administer educational institutions of thei,r choice and Sections 8 to l I 1
would consequently be inapplicble to such minority educational
--
C institutions.

In order to appreciate the controversy between the parties, it is
necessary to refer to the scheme and the important provisions of the
Delhi School Education Act. The long title of the Act recites that it is
D "An act to provide for better organisation and development of school
education in the Union Territory of Delhi and for matters connected
therewith or incidental thereto." Section 2(d) defines "Aided School"
as meaning "a recognised private school which is receiving aid in the
form of maintenance great from the Central Government, Adminis-
trator or local authority or any other authority designated by the
E Central Government, Administrator or a local authority." "Recog-
nised School" is defined by Section 2(t) to mean "a school recognised
by the appropriate authority." Section 2(e) defines "appropriate
authority" to mean: ·

"(i) in the case of a school recognised or to be recognised / '
F by an authority designated or sponsored by the Central .
Government, that authority;

(ii) in the case of a school recognised or to be recognised
by the Delhi Administration, the Administrator or any
other officer authorised by him in this behalf;
G
(iii) in the case of a school recognised or to be recognised
by the Municipal Corporation of Delhi, that Corporation;"
,
We may state here that in the case of the Frank Anthony Public School
the appropriate authority is the Delhi Administration. Section 2(h)
H defines 'employee' to mean "a teacher and includes every other em-
F.A. PUBLIC SCHOOL v. UNION OF INDIA (REDDY, J.] 247

ployee working in a recognised school". "Minority school" is defined A
by sectiOI) 12( o) to mean "a school established and administered by a
minority having the right to do so under clause (I) of Art. 30 of the
Constitution''. Section 2(x) defines "unaided minority school" to
mean "a recognised minority school which does not receive any aid."
It is undisputed that the Frank Anthony Public School is an unaided
minority school. Chapter II of the Act deals with "establishment, re- B
cognition, management of and aid to schools." Chapter III deals with
school property. Chapter JV consisting of sections 8 to 12, deals with
"Terms and Conditions of service of employees of recognised private
'r-schools". Chapter V, consisting of Sections 13 to 15, contains "the
' provisions applicable to unaided miflority schools." We are concerned
with Chapters IV and V. Chapter VI deals with "admission to schools
and fees", Chapter VII deals with "Taking over the management of
c
schools" and Chapter VIII with miscellaneous provisions. Going back
to Chapter JV, Sections 8( l) empowers the Administrator to make
rules regulating 'the minimum .qualifications for recruitment, and the
. conditions of service, of employees of recognised private schools'. The
first proviso to Section 8( l) stipulates that salary and rights in respect D
of leave of absence, age of retirement and pension of an employee of
an existing school at the commencement of the Act may not thereafter
be varied to his disadvantage. The proviso gives an indication that
salary and rights in respect of leave of absence, age of retirement and
pension of an employee are covered by the expression "the conditions
of-service". We mention this because in the course of the argument it E
was suggested that salary is not a condition of service. Sub-section(2)
of Section 8 stipulates that, subject to any rule that may be made, "no
employee of a recognised private school shall be dismissed, removed
or reduced in rank nor shall his service be otherwise terminated except
, with the prior approval of the Director." Section 8(3) enables an emp-
1 loyee of a recognised private school who is dismissed, removed or F
reduced in rank to prefer an appeal to the Tribunal constituted under
•, Section 11 against the order of such dismissal, removal or reduction in
rank. What is of importance and requires to be noticed is that the prior
approval of the Director contemplated by Section 8(2) and the appeal·
for which provision is made by Section 8(3) are cofin_ed to ·dismissal,
removal and reduction in rank and not to other cases of. disciplinary G
action or other administrative orders of the management. Section 8(2)
~ also provides for the prior ·approval of the Director in the ca~e of
termination of service otherwise then dismissal or removal also. Sec-
tion 8(4) requires the managing committee of a recognised private
school to communicate to the Director and to obtain his prior approval
before suspending any of its employees. However, the provision H
248 SUPREME COURT REPORTS [ 1987] 1 S.C.R.

A ·enables the managing committee to suspend an employee with im-
mediate effect and without the prior approval of the Director if it is
satisfied that such immediate suspension is necessary by reason of the
gross misconduct of the employee, within the meaning of the Code of
Conduct. Such· immediate suspension will cease to have effect after
fifteen days if approval of the Director is not obtained in the mean
B while. Section 8(5) authorises the Director to accord his approval to
suspension of an employee if he is satisfied that there are adequate and
reasonable grounds for such suspension. Section 9 prescribes that
every employee of a recognised school shall be governed by the pre-
scribed Code of Conduct and that the employee shall be liable to th:;-(
prescribed disciplinary action for violation of any provision of Code of
Conduct. Section 10(1) requires that :'the scales of pay and allowan-
C ces, medical facilities, pension, gratuity, provident fund and other
prescribed benefits of the employees of a recognised private school
shall not be less than those of the employees of the corresponding
status in schools run by the appropriate authority." The proviso to
Section IO( 1) requires the appropriate authority to direct in writing the
D managing committee of any recognised private school to bring the
scales of pay and allowances etc. of all the employees of such schools
to the level of those of the employees of the corresponding status in
schools _run by the appropriate authority. A.further proviso to Section
10( 1) contemplates withdrawal of recognition if such direction is not
complied with. Section 10(2) requires the managing committee of ev-
E ery aided school .to deposit every month its share towards pay and
allowances, medical facilities etc.. with the Administrator and requires
the Administrator disburse, or cause to be disbursed, the salaries and
allowances to the employees of aided schools. Section 11 provides for
the constitution of ll Tribunal consisting of one person who shall have I
held the office of a District Judge or any equivalent judicial office. ..J
F Section 11( 6) provides that the Tribunal shall, for the purpose of dis-(
posal of an appeal, have the same powers as are vested in a court of
appeal by the Code of Civil Procedure. Then comes Section 12 which
says "Nothing contained in this Chapter shall apply to an unaided
minority school." It is because of this provision that Sections 8, 9, 10
and 11 become inapplicable to unaided minority schools. Chapter V
G consists of Section 13 to 15 and these are the provisions of the Act
which are applicable to unaided minority schools .only. Section 13
enables the Administrator to make rules regulating the minimum qual-
ifications for and method of, recruitment of employees of unaided
minority schools. Section 14 prescribes that every employee of an
unaided private school shall be governed by such Code of Conduct as
H may be prescribed. Execpt in the matter of disciplinary acti;,n the
F.A. PUBLIC SCHOOL v. UNION QF INDIA (REDDY, J.l 249

-.._, Code of Conduct prescribed for employees of unaided minority A
schools under Section 14 is virtually the· same as the Code of Conduct
prescribed for all recognised schools under Section .9. Section 15(1)
requires the managing committee of every unaided )Jlinority school to
enter into a written contract of service with every employee of such
school. Section 15(2) provides that a copy of every contract of service
,,.x shall be forwarded by the managing comniittee to the A'dministrator B
who shall, on receipt of such copy register it. Section 15(3) provides
that every contract of service shall provide for "(a) the terms and
conditions of service of the employee, including the scale of pay and
/-cither allowances to which· he shall be entitled; (b) the leave of
· absence, age of retirement, pension and gratuity or-E?ntributory provi-
dent fund in lieu of pension and gratuity, and. medical and other c
benefits to which the employee shall be entitled; (c) the penalties
--j which may be imposed on the employee for the violation of any Code
of Conduct or the breach of any term of the contract entered into by
him; (d) the manner in which disciplinary proceedings in relation to
the employee shall be conducted and procedure which shall be fol-
lowed before any employee is dismissed, removed from service or D
reduced in rank; ( e) arbitration of any dispute arising out of any
breach of contract between the employee and the managing committee
with regard to-(i) the scales of pay and other allowances, (ii) leave of
absence; age of retirement, pension, gratu.ity, provident fund, medical
~· and other benefits, (iii) any disciplinary action leading to the dismissal
or removal from service or reduction in rank of the employee, (f) any E
other matter which, in the opinion of the managing committee, out to
be, or may be, specified in such contract." Section 16, which occurs in
Chapter VI, is applicable to unaided minority schools also and·deals
with admission to recognised schools. Section 17 and 19 are applicable
,-\to both aided and unaided schools. Section 19(1) requires that every
recognised higher secondary school shall be affiliated to one or more F
,
_...., of the Boards or Councils conducting such examination and shall fulfil
the conditions prescribed by the Board or Council. Chapter VII con-
sists of two sections. Section 20 deals with taking over the management
of schools and Section 21 provides that Section 20 shall not apply to a
minority school. As already mentioned by us, though the question of
the vires of Section 21 was also. raised in the petition, the point was not G
pressed before us.
·.~
The effect of Section 12, as already mentioned by us, is to make
Sections 8, 9, 10 and 11 inapplicable to unaided minority schools;
First, the Administrator may not make rules regulating the conditions
of service of empoyees of unaided minority schools. But so far as the H
150 SUPREME COURT REPORTS [ IQ87) I S.C.R.

A minimum qualifications for recruitment of employees are concel'!Jed,
Section 13 enables the Administrator to make regulations even in
iespect of unaided minority schools. Second, the prior approval of the
Director need not be obtained for the dimissal, removal, reduction in
rank or termination of service otherwise then by dismissal or removal
of an employee of an unaided minority school. Third, against such
8 dismissal, removal or reduction in rank, there is to be no appeal.
Fourth, neither piror nor subsequent approval of the Director need be
obtained to suspend any of the employees of an unaided minority
/ school. Fifth, the scales of pay and allowance, medical facilities, pen- .
sion, gratuity, provident fund and other benefits which may be given--(
to employees are subject to no regulation except that they should be
c contained in a written contract of service and need not conform to the
scales of pay and allowances etc. of the employees of the correspow.l-
ing status in schools run by the appropriate authority as.in the case of
other reoognised private schools.

To recall the contentions of the learned counsel for either side,
D on the one hand it was submitted by Shri C.S. Vaidyanathan, learned
counsel for the petitioner that these drastic departures which result
from giving effect to s. 12, make Section 12 discriminatory and offen-
sive to Art. 14 of the Constitution. The provisions which are made
inapplicable to aided minority institutions because of Section 12 are no
more than regulatory measures aimed at the excellence of the institu- "1'
E tion and in no way impinge on the Fundamental Right of the minori-
ties, -religious or· linguistic, to administer educatio<1al institutions of
their choice. On the other hand, it was the contention of the learned
Additional Solicitor General that these provisions are inapplicable to
minority institutions since they interfere with the right of management
F vested in the minorities. According to him, payment of salary, allo-(-'
wances etc. is part of the right of the management to appoint members ·
of the staff. The economics of an unaided institution is entirely in the \.
hands of its management and the right of the management to pay such
salaries and allowances as the management deems fit is a part and
parcel of the right to administer the institution. More so the right to,
take disciplinary action which cannot be the subject of any supervision
G by any other authority. But for Section 12, Sections 8 to 11 would
impinge on the right of the minorities to administer Educational
Institutions of their choice and would therefore, be inapplicable to -4
minority Educational Institutions. Shri Frank Anthony made submis-
sions on the same lines as the learned Additional Solicitor General and
in addition pointed out that the Frank Anthony Public School was an
H Educational Institution of great repute and that the excellence of the
F.A. PUBLIC SCHOOL v. UNION OF INDIA (REDDY, J.) 251

institution was such that it did not necessitate any regulation by any A
other authority. The excellence of the institution spoke for itself. He
submitted that the scale of fee charged by the institution was low
compared with other private institutions and it was the desire of the
management that the scale of fee should continue to be low so that it
may be within the reach of the ordinary people whom it was intended
to reach. It was because of this desire of the management to keep the B
scale of fee low that the management could not pay higher salaries and
allowances and we were repeatedly iold that if Section 12 was struck
down and the management was compelled to pay the same scale of
salary and allowances a~ was paid ·to employees of Government
_J_ )-Schools, the Frank Anthony Public School would have to be closed
' down.
c
At this juncture, we may refer to Art. 30( 1) and 30(2) of the
Constitution which are as follows:-

"30(1) All minorities, whether based on religion or lan-
guage, shall have the right to establish and administer edu- D
cational institutions of their choice.

(IA) ............................................... .

(2) The State shall not, in granting aid to educational

- institutions, discriminate against any educational insti-
tution on the ground that it is under the management of a
minority, whether based on religion or language."
E.

- The content of the Fundamental Right guranteed by Art. 30( 1)
of the Constitution has been the subject of several decisi•;>ns of this
~ Court. The leading case is that a Constitution bench of seven judges, F
! In re The Kera/a Education Bill [ 1957] SCR 995. In an oft quoted
.( passage S.R. Das, Chief Justice, explained the content of Art. 30( 1) as
,-. . follows:

"The first point to note is that the article gives certain
rights not only to r~ligious minorities but also to linguistic· G
minorities. In the next place, the right conferred on such
minorities is to establish educational institutions of their
choice. It does not say that minorities based on religion
should establish educational institutions for teaching reli-
gion only, or that linguistic minorities should have the right
to establish educational institutions for teaching their H
SUPREME COURT REPORTS . ( 1987] I S.C. R.

language only. What the article says and means is that the
A
religious and the linguistic minorities should have the right y-
to establish educational institutions of their choice.
•
There is no limitation placed on the subjects to be taught in
such educational institutions. As such minorities will ordi-
B narily desire that their children should be brought up prop-
erly and efficiently and be eligible for higher university
education and go out in the world fully equipped with such
intellectual attainments as will make them fit for entering
the public services, educational institutions of their choice
will necessarily include institutions imparting general secu:-f'
Jar education also. In other words, the article leaves it to
c their choice to establish such educational institutions as will
serve both purposes, namely, the purpose of conserving
their religion, language or culture. and also the purpose of
givi)lg a thorough, good general education to their chil-
dren. The next thing to note is that the article, in terms,
D gives all minorities whether based on religiun or language,
two rights. namely. the right to establish and the right to
administer educational institutions of their choice. The key
to the understanding of the true meaning and implication
of the article under consideration are the words "of their
own choice ... It is said that the dominant words is "choice ..
E and the content of that article is as wide as the choice of the
particular minority community may make it. The ambit of
the rights coferrred by Art. 30( l) has, therefore. to be
determined on a consideration of the matter from the
points ofview of the educational institutions themsevles ...

F Educational Institutions, it was said, could be classified into(~'
three categories( I) those which did not seek aid or recognition from
the State (2) those whic.hd sought aiddand (3h) those which wanted re- ~.
cogmtion only but not ai . 1t was sat that t e mstitutions of the first
category were outside the scope of the Kerala Education Bill the ques-
tion of vi res of whose provisions was referred to the , court in the
G reference. In the second category of schools, it was pointed out, there
were two classes. those entitled to receive grants under the Constitu-
tion and those which were not entitled to any grant under any provi- ·
sion of the. Constitution. but, nevertheless, sought aid. Under Art. 337 --C
of the Constitution. Anglo-Indian Schools which were receiving the
grant upto March. 31. 1948 were entitled to receive the grants for a
H period of ten years subject to a graded triennial diminution. Anglo-
F.A. PUBLIC SCHOOL v. UNION OF INDIA [REDDY. J.l 253

Indian Schools which were receiving grants, but not more than what A
----.. they were entitled to receive under Art. 337 of the Constitution. came
within the first class of the second category and it was held that their
Constitutional right to receive the grant could not be subjected to any
restrictions as those sought to be imposed by the provisions of the
Kerala Education Bill. Any attempt to impose any such restrictions on
Anglo-Indian Schools which received no more aid than that to which B
1.-· they were entitled to receive under the Constitution would infringe
~

their rights under Art. 337 and under Art. 30( l) of the Constitution.'
We may straight away mention here that the period of ten years
stipulated by Art. 337 having expired there is now no question of
~ rAnglo-lndian Schools being entitled to any special protectiol). Shri
Frank Anthony sought to argue that what was truly decided by the c
Court was that any condition imposed for granting recognition to
unaided minority Educational Institutions would infringe on the right of
-f. administration granted to them by Art. 30( I) of the Constitution. We
do not read the decision as laying down any such proposition. What ·
was decided was that Anglo-Indian Schools which ;.,,ere entitled to
receive grants under the Constitution and which received no more aid' D
than that to which they were entitled under the Constitution could not
be subjected to stringent terms as fresh or additional conditions prece-
dent to enable then to obtain the grant. Such conditions would infringe
their rights under Art. 337 and violate their rights under Art. 30( I). To
place an interpretation as _that suggested by Shri Anthony would be
subversive of the right guaranteed by Art. 30( I) since it would make E
the extent of the right depend on the receipt or non-receipt of aid. If
one thing is clear. it is this that the Fundamental Right guaranteed by

- ?-,
Art. 30( I) cannot be surrendered. wholly or.partly. and the authorities
cannot make the grant of aid conditional on the surrender of a part of
the Fundamen!:il Right. In the very case it was observed:
F
/
I t "Recognition and grant of aid. says Shri G.S. Pathak. is the
governmental function and. therefore. the State cannot im-
pose terms as condition precedent to the grant of recogni-
tion or aid which wili be violative of Art. 30( I). According
to the statement of case filed by the State of Kerala. every
Christian school in the State is aided by the State. There- G
fore. the conditions imposed by the said Bill on aided in-
stitutions established and administered by minority com-
munities. like the Christians. including the Anglo-Indian
community. will lead to the closing down of all these aided
schools unless they are agreeable to surrender their funda-.
mental right of management. No educational institution H
15-l SUPREME COURT REPORTS [1987] I S.C.R.

can in actual practice be carried on without aid from the
A State and if they will not get it unless they surrender their
rights they will, by compulsion of financial necessities, be
compelled to give up their rights under Art. 30( \). The
legislative powers conferred on the legis\ati~e of the States
by Arts. 245 and 246 are subject to the other provisions of
B the Constitution and certainly to the provisions of Part III
which confers fundamental rights which are, therefore.
binding on the State legislature. The State legislature can-
not, it is clear, disregard or override those provisions
merely by employing indirect methods of achieving exactly

c
the same result. ·Even the Legislature cannot do indirectly--(
what it certainly cannot do directly." -
The learned Chief Justice then proceeded to consider the case of the
Anglo-Indian Schools which received aid in excess of that granted by ::.-
Art. 337 ;ind the other minority schools which received aid from the
Government. One of the principal submissions there was that the gist
D of tht right of administration of a school was the power of appoint-
ment, control and dismissal of teachers and other staff and that under
the Kerala Education Bill such power of management was practically
taken away. Dealing with the submission the learned Chief Justice
observed,

E "The right to administer cannot obviously include the right
to maladmiriister. The minority cannot surely ask for aid or
recognition for an educational institution run by them in
unhealthy surroundings, without any compentent 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 ,,-_
I .
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 order to grant aid the State may prescribe
reasonable regulations to ensure the excellence of the
G institutions to be aided".

Proceeding to consider whether the various clauses of the Bill
merely prescribed reasonable regulations or conditions for the grant of
aid, the Court observed that clauses 7, IO, II(/), 12(/)(2)(3) and (5)
might easily be regarded as reasonable regulations or conditions for the
H grant of a'd. We may mention hefe that Cluase IO of the Bill required
F.A. PUBLIC SCHOOL v. UNION OF INDIA [REDDY, J.] 255'

the Government to prescribe the qualifications to be possessed by A
persons for appointments as teachers in Government schools and in
private schools. The procedure for selection of teachers in Govern-
ment schools and aided schools was laid down in Clause I I. Clause 12
prescribed the conditions of service of the teachers of aided schools,
obviously intended to afford solne security of tenure to t_he teachers of
aided schools. It provided that the scales of pay applicable to the B
teachers of Government schools shall apply to all the teachers of aided
scfjools. Sub-Clause (4) of Cl. 12 which ~as not mentioned by the
Court as a clause which could easily be regarded as reasonable regula-
tion, provided that no teacher of an aided school shall be dismissed,
")-· nmoved, reduced in rank or suspended by the Manager without the
· · :evious sanction of the authorised officer. Clause 11 sub-clause (2) c
.Vas another clause which the court was unable to readily identify as
reasonable. In regard of Clauses 9, J l and 12 the court while holding
that they were 'serious inroads on the right of administration' and that
they came 'perilously near violating their right', nevertheless held, "but
considering that these provisions are applicab_le to all educational in-
stitutions and that the impugned parts of Cls. 9, 11 and 12 are designed D
to give protection and security to the ill paid teachers who are engaged in
rendering service to the nation and protect the backward classes, 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 insiitutions."

In Rev. Sidhajbhai Sabhai and others v. State of Bombay and
another, [1963] 3 SCR 837 the Court summarised the decision in the ·
E

reference in regard to the Kerala Education Bill and proceeded to
observe:

"The right established by Art. 30( l) is a fundamental right F
I declared in terms absolute. Unlike the fundamental free-
I
doms guaranteed by Art. 19, it is not subject to ·reasonable
,...,-. restrictions. It is intended to be a real right for the protec-
tion of the minorities in the matter of setting up of educa-
tional institutions of their own choice. The right is intended
to be effective and is not to be whittled down by so-called G
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 of a minority insiitution destroys the
power of administration is held justifiable because it is in
the public or national interest, though not in its interest as H

."•, '
256 SUPREME COURT REPORTS (1987] l S.C.R.

an educational institution, the right guaranteed by Art.
A
30( l) will be but a "teasing illusion'', a promise of un-
reality. 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
B institution effective as an educational institution. Such
regulation must satisfy a dual test-the test of reasonable-
ness, 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." ~

C In State of Kera/a etc. v. Mother Provincial etc., [1971] I SCR 734. It
was conceded by the petitioners representing the minority commu-
nities (as indeed they were bound to do having regard to the autho-
rities of the Court) that the State or the University to which these
institutions were affiliated may prescribed standards of teaching and
D the Scholastic efficiency expected from colleges. It was also conceded
that to a certain extent conditions of employment of teachers, hygiene
and physical training of students can be regulated. While administra-
tion was explained "management of the affairs" of the institution and
it was said that this management should be free of control so that the
institution could be moulded in accordance with the management's
E · ideas of how the interests of the community in general and the institu-
tion in particular would be .best served. It was pointed out that there
was an exception to this and it was that the standards of education
were not a part of management as such. It was said,
'
"These standards concern the body politic and are dictated
F by considerations of the advancement of the country and its ( ~,
people. Therefore, if universities establish syllabi for ex-
aminations they must be followed, subject however to spe- ~
cial subjects which the institutions may seek to teach. and
to certain extent the State may also regulate the conditions of
employment of teachers and the health and hygiene of stu-
G dents. Such regulations do not bear directly upon manage-
ment as such although they may indirectly affect it. Yet the
right of the State to regulate education. educational stan-
dards and allied matters cannot be denied. The minority ......
institutions cannot be allowed to fall below the standards of
excellence expected of educational institutions, or under
H the guise of exclusive right of management. to decline to
F.A. PUBLIC SCHOOL v. UNION OF INDIA [REDDY, J.] 257

follow the general patt.ern. While the management must be A
left to them, they may be compelled to keep in step with
others."

One of the questions in the case related to the validity of Section 56
sub-sections (2) and (4). Section 56(2) provided that no teacher of a
private college should to dismissed, removed or reduced in rank with- B
-~· out the previous sanction of the Vice-Chancellor or placed under
suspension for a continuous period exceeding fifteen days without su.ch
previous sanction. Section 56( 4) provided that a teacher against whom
disciplinary action was taken shall have a right of appeal to the Syndi-
~
y- cate. It was held that these provisions clearly took away the discipli-
nary action from the governing body and the managing council and c
conferred it on the University. The view of the High Court that Sub-
sections (2) and (4) were ultra "ires Article 30( I) of the Constitutions
-f. in respect of minority institutions was upheld.

The Ahemedabad St. Xaviers College Society & Anr., v. State of
Gujarat & Anr., [1975] I SCR 173 was the decision of a Nine Judge D
Constitution Bench. Ray, C.J. with whom Palekar, J. agreed stated in
his opinion, after referring to the State ofKerala v. Mother Provincial
etc. (supra) as follows:

---
. '
"Affiliation of minority institutions is intended to ensure
the growth and excellence of their children and other stu-
dents in the academic field. Affiliation mainly pertains to
the .academic and educational character of the institution.
t

Therefore, measures which will regulate the courses of
study, the qualifications and appointment of teachers, the
conditions of employment of teachers, the health and
'\ hygiene of students, facilities for libraries and labora- F
tories are all comprised in matters germane to affiliation
...,--'- of minority institutions. These regulatory measures for
affiliation are for uniformity, efficiency and excellence in
educational courses and do not violate any fundamental
right of the minority institutions under Article 30."
G
Section 5 IA of the Act which was impugned in that case provided that
no member of the teaching and non-teaching staff of an affiliated
:>- college shall be dismissed, removed or reduced in rank except with the
approval of the Vice-Chancellor, Ray, C.J. held that the provision
could not be said to be permissive regulatory measure inasmuch it
conferred arbitrary power on the Vice.-Chancellor to take away the H
258 SUPREME COlJRT REPORTS [ 1987) l S.C.R.

right of the minority institutions. It could not, therefore, be applied to
A
minority institutions. Section 52A of the Act contemplated reference
of any dispute connected with the conditions of service, between the
governing body. and any member of the teaching and non-teaching
staff of an affiliated college to an Arbitration Tribunal consisting of
one member nominated by the governing body, one member nomi-
B nated by the affected member and an umpire appointed by the Vice-
Chancellor. This provision was also held to be inapplicable to minority
institutions as the references to arbitration would introduce an area of
litigious controversy in educational institutions and displace the
domestic jurisdiction of the governing body. Jaganmohan Reddy, J.
speaking for himself and Alagiri Swami, J., agreed with the conclu-
sions of Ray, C.J. and made some observations of his own. He
c observed:

"The right under Art. 30 cannot be exercised in vacue. Nor
would it be right to refer to affiliation or recognition as
privileges granted by the State. In a democratic system of
D Government with emphasis an education and enlighten-
ment of its citizens, there must be elements which give
protection to them. The meaningful exercise of the right
under Art. 30(1) would and must necessarily involve re-
cognition of the secular education imparted b.y the minority
institutions without which the right will be a mere husk.
E This Court has so far consistently struck down all attempts
to make affiliation or recognition on terms tentamount to
surrender of its rights under Art. 30( 1) as abridging or
taking away those rights. Again as without affiliation there
can be no meaningful exercise of the right under Art.
30(1), the affiliation to be given should be consistent with
F that right, nor can it indirectly try to achieve what it cannot
directly do."

Khanna, J. pointed out, "The idea of giving special rights to the
minorities is not to have a kind of a privileged or pampered section of
the populfltion but to give to the minorities a sense of security and a
G feeling of confidence." Later dealing with the 'scope' and 'ambit' of
the right guaranteed by Art. 30( 1), he said:

"The clause confers a right qn,all minorities, whether they
are based on religion or language, to establish and adminis-
ter educational institutions of their choice. The right con-
H ferred by the clause is in absolute terms and is not subject
F.A. PUBLIC SCHOOL v. UNION OF INDIA {REDDY, !.] 259

to restrictions as in the case of rights conferred by Article A
19 of the Constitution. The right of the minorities to
administer educational institutions does not, however, pre-
vent the makil)g of reasonable regulations in respect of
those institutions. The regulations have necessarily io be
made in the interest of the institution as a minority educa-
tional institution. They have to be so designed as to make it B
an effective vehicle for imparting educaticm. 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 un-
healthy surroundings as also to prevent the setting up or
continuation of an educational institution without qualified. C
teachers. The State can prescribe regulations to ensure the
excellence of the institution. Prescription of standards for
educational institutions dces not militate .against the right
of the minority to administer the institutions. Regulations
made in the true interests of efficiency of instruction, disci-
pline, health, sanitation, morality, public order and the like D
may undoubtedly be imposed. Such. regulations are not
restrictions on the substance of the right which is guaran-
teed: they secure the proper functioning of the institution,
in matters educational (see observations of Shah J. in Rev.

-
-~ Sidhajbhai Sabhai, supra p. 850). Further, as observed by
Hidayatullah CJ., in the case of very Rev. Mother provin- E
cial (supra) 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 elcaminations they must be followed, subject
however to special subjects which the institutions may seek
to teach, and to a certain extent the State may also regulate F
·.the conditions of employf[1ent of teachers and the health and
hygiene of students. Such_ regulations do not bear directly
upon management as such although they may indirectly
affeci 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 G
the standards of excellence expected of educational institu- '
·.')..... tions, or under the guise of exclusive right.of management,
>1 to cjecline to follow the general pattern. While the manage-
ment must be left to them, they may be compelled to keep
in· step with others.
H
260 SUPREME COURT REPORTS [ 1987] l S.C.R.

A
It is, in my opinion, pennissible to make regulations
for ensuring the regular payment of salaries before a particu-
lar 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 bettenrtent of the insiitution and not
for extraneous purposes. Regulations may also contain
B provisions to prevent the diversion of funds of institutions
to the pockets of those incharge of management or their
embezzlement in any other manner. Provisions for audit of
the accounts of the institution would be pennissible regula-
tion. Likewise, regulations may provide that no anti- ---.,,-
national activity would be pennitted in the educational
institutions and that those employed as members of the
c staff should not have been guilty of 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 inhibit this vast land
D 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 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 subver-
sive of national interests. Regulations to prevent anti-
E national activities in educational institutions can. there-
fore, be considered to be reasonable.

A regulation which is designed to prevent mal-
administration of an educational institution cannot be said
-
to offend clause ( 1) of article 30. At the same time it has to / ~
F 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 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( l) is intended to be real and
G 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 a regulation. As observed by this Court in
the case of Rev. Sidhajbhai Singh (supra, regulations which
may lawfully be imposed either by legislative or executive
H action as a condition of receiving grant or of recognition
F.A. PUBLIC SCHOOL v. U\'llON OF INDIA (REDDY, J.l 261

must be directed to making the'institution while retaining A
its character as minority institution effective as an educa-
tional 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 condu-
cive to making the institution an effective vehicle of educa-
tion for the minority community or other persons who B
resort to it."

Dealing with the right of the management of a minority educational
"--'-
I . institution to exercise disciplinary control over the teachers, he
observed:
c
"Although disciplinary control over the teachers of a
minority educational institution would be with the govern-
ing council, 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 D
safeguard the interest of teachers would _result in security of
tenure and this inevitably attract competent persons for the
posts of teachers. Such a provision would also eliminate a
potential cause of frustration amongst the teachers. Regu-
lations made for this purpose should be considered to be in
the interest of minority educational institutions and as such E
they would not violate article 30( !). "

However, Khanna, J. held that Section 5 IA which gave blanket power
to the Vice-Chancellor to veto the disciplinary action of the manage-
ment body and section 52A which proyided for the nomination of an
umpire by the Vice-Chancellor were both objectionable. It is im- F
portant to note here that what was considered objectionable in Section
52A was not the provision for an Arbitration Tribunal but the right
given lo the Vice-Chancellor to nominate the Umpire. The Learned
Judge said:

"It may also be stated that there is nothing objectionable to G
selecting the method of arbitration for settling major
disputes connected with conditions of service of staff of
educational institutions. It may indeed be a desideratum.
What is objectionable, apart from what has been men-
tioned above, is the giving of th'e power to the Vice-
Chancellor to nominate tire Umpire. Normally in_ such dis- H
262 SUPREME COURT REPORTS [ 1987] I S.C.R.

putes there would be hardly any agreement between the y-
A
arbitrator nominated by the governing body of the institu-
tion and the one nominated by the concerned member of
the staff. The result would be that the power would vest for
all intents and purposes in the nominee of the Vice-
_Chancellor to decide all disputes between the governing
B body and the member of the staff connected with the lat-
ter's conditions of service. The governing body would thus
be hardly in a position to take any effective disciplinary
action against a member of the staff. This must cause an
inroad in the right of the governing body to administer the --(
institution. Section 52A should, therefore, be held to be
violative of article 30( 1) so far as minority educational in-
c
stitutions are concerned."

Mathew, J. speaking for himself and Chandrachud, J. observed:

"In considering the question whether a regulation imposing
D a condition subserves the purpose for which recognition or
affiliation is granted, it is necessary to have regard to what
regulation the appropriate authority may make and impose
in respect of an educational institution established and
administered by a religious minority and receiving to re-
cognition or aid. Such an institution will, of course, be
E subject to the general laws of the land like the law of taxa-
tion; law relating to sanitation, transfer of property, or
registration of documents, etc., because they are laws
affecting not only educational institutions established by
religious minorities but also all other persons and institu-
tions. It cannot be said that by these general laws, the State 1 -~
F in any way takes away or abridges the right guaranteed '
ubnde r Article 30( 1). Because article 30(1) is couched ip .
a so1ute terms, 1t does not follows that the right guaran-
teed is not subject to regulatory laws which would not
amount to its abridgement. It is a total misconception to
say that because the right is couched in absolute terms, the
.G exercise of the right cannot be regulated or that every regu-
lation of that right would be an abridgement of the right."

Again he said:

"The question to be asked and answered is whether the
H particular mesure is regulatory or whether it crosses the
F.A. PUBLIC SCHOOL v. UNION OF INDIA (REDDY, J.J 263 '

zone of permissible . regulation and enters the forbidden A
territory of restrictions or abridgement. So, even if an edu-
cational institution established by a religious or linguistic
minority does not seek recognition, affiliation or aid, its
activity can be regulated in various ways provided the regu-
lations do not take away or abridge the guaranteed right.
B
Regular tax measures, economic regulations, social welfare
,._~}"r
/egis'lation, wage and hour legislation and similar measures
may, of course have some effect upon the right under article
30(1). But where the burden is the same as that borne by
'!'"' others engaged in, different forms of activity, the similar
impact on the right seems clearly insufficient to constitute
an abridgement, if an educational institution established by c
a religious minority seeks no recognition, affiliation or aid,
""'f the state may have no right to prescribe the curriculum,
syllabi or the qualification of the teachers.

We find it impossible to subscribe to the proposition
D
that State necessity is the criterion for deciding whether a
regulation imposed on an education~! institution takes
away or abridges the right under Article 30( l): If a legisla-
ture can impose any regulation which it thinks necessary to
protect what in its view is in the interest of the State or

r
society, the right under Article 30( l) will cease to be a E
fundamental right. It sounds paradoxical that a right which
the Constitution makers wanted to be absolute can be sub-
jected to regulations which need only satisty the nebulous
and elastic test of state necessity. The very purpose of in-
corporating this right in Part III of the Constitution in abso-
lute terms in marked contrast with the other fundamental
~ rights was i~ withdraw it from the reach of the majority. To
F
subject the right today, to regulations dictated· by the pro-
--'· tean concept of state necessity as conceived by the majority
would be to subvert the very purpose for which the right
was given."

..
G
The learned Judge also pointed out that where besides recognition or
affiliation, an educational institution conducted by a religious minority
is granted aid, further regulations for ensuring that !he aid is utilized
for the purpose for which it is granted would be permissible. "The
heart of the matter" said the learned Judge, "is that no educational
institution established by a religious or linguistic minority can claim H
total immunity from regulations by the legislature or the university if it
264 SUPREME COURT REPORTS [ 1987] 1 S.C.R.

A wants affiliation or recognition; but the character of the permissible
regulations must depend upon their purpose. As we said, such regula-
tions will be permissible if th~y are relevant to the purpose of securing
or promoting the object of recognition or affiliation." Referring to
Section 5 lA Mathew, J. said that uncanalized power without any
guideline to withhold approval would be a direct abridgement of the
B right of the management to dismiss or remove a teacher or inflict any
other penalty after conducting an enquiry. He, however, took care to
point out that it would be open to the State in the exercise of its
regulatory power to require that before the services of a teacher are
teqninated, he should be given an opportunity to be heard in hi&,-·
defence. The objection was to the blanket power given to the Vice-
c Chancellor without any guideline as .to the manner of its exercise.
Referring to Section 52A, the l~amed Judge felt that it subserves no
purpose and would lead to needless interference with the day-to-day
management of the institution. Every petty dispute raised by the
teaching or non-teaching staff would have to be referred to arbitration
if it seemed to touch the service conditions. "Arbitration, not in part-
D ing education, will become the business of educational institutions",
said the learned Judge. Beg, J. and Dwivedi, J. who appeared to
constitute the minority delivered separate opinions and it is sufficient
to say that both of them upheld the vires of Section 5 IA and Section
52-A.

E In All Saints High School etc. v. The Governmeni of Andhra
Pradesh, A.I.R. 1980 SC 1042. Chandrachud, C.J. after referring to
several earlier decisions of the Court said,

These decisions show that while the right of the religious
and linguistic minorities to establish and administer educa-, -\
F tional institutions of their choice cannot be interfered with; ;
restrictions by way of regulations for the purpose of ensur-
ing educational standards and maintaining the excellence 'L
thereof can be validly prescribed. For maintaining educa-
tional standards of an institution, it is necessary to ensure
that it is competently staffed. Coditions of service which
G prescribe minimum qualifications for the staff, their pay
scales their entitlement to other benefits of service and the
laying down of safeguards which must be observed before
they are removed or .dismissed from service or their services
are terminated are all permissible measures of a regulatory
character. ''
H
F.A. PUBLIC SCHOOL v. UNION OF INDIA (REDDY, J.l 265

Section 3( 1) of the impugned Act in that case provided that no teacher A
emplqyed in any pri_vate educational institution shall be dismissed,
removed or reduced in rank nor his appointment·otherwise terminated
except with the prior approval ofthe compet!'nt authority. The provi-
sion was struck down on the ground that it gave wide and untrammel-
_led discretion to interfere with the management's right to dismiss,
remove, reduce in rank or otherwise terminate the teacher's services. B
However Section 3(3) (which provided that no teacher shall be placed
under suspension except when an inquiry into the gross misconduct of
such teacher was contemplated) was upheld as not violative of Article
(--- 30( 1) of the Constitutim1. Chandrachud, C.J. observed that the provi-
sion was founded so patently on plain reason that it was impossible to
construe it as an invasion of the right to administer _an institution, ,. C
unless that right carried with it the right to maladminister. Section 4 of
the Act made a provision for an appeal agaist ail order of dismissal,
removal, reduction in rank or otherwise termination of appointment
or alteration to the teacher's disadvantaged of pay or allowances or
any other conditions of service. Tills provision was also struck down as
unconstitutional as it gave a right of appeal both on fact and law D
thereby throwing open the order of the management to the unguided
scrutiny and unlimited review of the appellate authority. Section 6
required the management to obtain prior approval of the competent
authority if retrenchment of teacher rendered necessary by any order

r
of the Government relating to education or course of instruction or ~
any other matter. This provision was upheld as valid. Section 7 which E
provided that the pay and allowances of a teacher shall be paid on or
before such day of a month in such "manner and by or through such
authority as may be prescribed was held to regulatory in character.
Fazal Ali, J. after quoting in extenso from tl)e earlier judgments of the
Court and culling out the principles whi'Ch according to him emerged
from the earlier decisions say, F

"It is, therefore, open to the Government or the University
to frame rules and regulations governing the conditions of
service of teachers in order to secure their tenure of service
and to appoint a high authority armed with sufficient gui-
dance to see that the said rules are not villated or the mem- G
bers of the staff are not arbitrarily treated or innocently
victimised. In such a case the purpose is not to int,erfere
' with the internal administration or autonomy of the institu-
tion but it is merely to improve the excellence and· effi- •
ciency of the education because a really good education can
be received only if the tone and temper of the teachers are · H
266 SUPREME COURT REPORTS [!987] l S.C.R,

so framed as to make them teach the students with devo-
A tion and dedication and put them above all controversy.
But while setting up such an authority care must be taken
to see that the said authority is not given blanket and un-
canalised and arbitrary powers so as to act at their own
sweet will ignoring the very spirit and objective of the
B institution. It would be better if the authority concerned
associtates the members of the governing body or its
nominee in its deliberation so as to instil confidence in the
founders of the institution or the committees constituted by
them." ~

Fazal Ali, J. held that Section 3(2) was violative ot Article 30( 1) of the
c Constitution and would have no application to minority institutions.
He was of the view that Section (3), Sub-section (3), sub-clauses (a)
and (b) were also violative of Article 30( 1) of the Constitution. The
provision for an appeal in Section 4 and the provision against retrench-
ment contained in Section 6 were both held to be inapplicable to
D minority institutions. Section 7 was upheld as innocuous. Kailasam, J.
after referring to the earlier cases stated as follows:-

"A reading of the decisions referred ~o above makes it
clear that while the right to establish and administer a
minority institution cannot be interferred with restrictions
E by way of regulations for the purpose of maintaining the
educational standards of the institution can be validly im-
posed. For maintaining the educational standard of the
institution as a whole it is necessary to ensure that it is
properly staffed. Conditions imposing the minimum qualifi-
cations of the staff, their pay and oth~r benefits, their service
F conditions, the imposition of punishment will all be
covered and regulations of such a nature have been held to
be valid. In the cast! of institutions that receive aid it is the L
duty of the Government who grants aid to see that the
funds are properly utilised. As the Government pays for
the staff it is their bounden duty to see that well-qualified
G persons are selected, their pay and other emoluments are
guaranteed and service conditions secured. So far as the
institutions receiving aid are concerned if the regulations
are made for the purpose of safeguarding the rights of the
staff the validity cannot be questioned as long as the regula-
tions do not discriminate the minority institution on the
H ground of religion or. language."
F.A. PUBLIC SCHOOL v. UNION OF INDIA [REDDY, J.) · · 261

Kailasam, J. was of the view that the whole of section 3 was valid. A
There were sufficient guidelines indicated in the Act for the exercise of
the powers under Section 3( I) and (2). Sections 3(3)(a)(b) and 3(4)
were intended to safeguard the teachers from suspension for unduly
long periods without there being an enquiry into gross misconduct and
could not be said to interfere with the right of administration of the
private institutions. With regard to Section 3(4) the learned Judge said B
it was purely regulatory. Sections 6 and 7 were also upheld.

Thus, there, now, appears to be a general and broad consensus
~-
about the content and dimension of the Fundamental Right guaran-
teed by Article 30( 1) of the Constitution. The right guaranteed to
religious and linguistic minorities by Art. 30( I) is two fold, to establish ('
and to administer educational institutions of their choice. The key to
· the Article lies in the words "of their own choice". These words indi-
cate that the extent of the right is to be determined, not with reference
to any concept of State necessity and general societal interest but with
reference to the educational institutions themselves, that is, with refer-
ence to the goal of making the institutions "effective vehicles of educa- D
tion for the minority community or other persons who resort to them".
It follows that regulatory measures which are designed towards the
achievement of the goal of making the minority educational institu-
tions effective instruments for imparting education cannot be consi-
dered to impinge upon the right guaranteed by Article 30( I) of the
Constitution. The question in each case is whether the particular mea- E
sure is, in the ultimate analysis, designed to achieve such goal, without
of course nullifying any part of the right of management in substantial
measure. The provisions embodied in Sections 8 to 11 of the Delhi
Schools Education Act may now be measured alongside the Funda-
mental Right guaranteed by Article 30(.1) of the Constitution to de-
termine whether any of them impinges on that fundamental right. F
Some like or analogous provisions have been considered in the cases to
whith we have referred. Where a provision has been considered by the
Nine Judge Bench in Ahmedabad Sr. Xaviers College v. Stlite of Gu-
jarat (supra), we will naturally adopt what has been said therein and
where the Nine Judge Bench is silent we will have recourse to the other
decisions. G

The principal controversy between the parties centred around
Section IO which requires that "the scales of pay and allowances,
medical facilities, pension. gratuity. provident fund, and other pre-
scribed benefits of the employees of the recognised private school shall
not be ,less than these of the corresponding status run by the appro- H
•
268 SUPREME COURT REPORTS [1987] l S.C.ll.

A priate authority". The submission on behalf of the respondents was
that the right to appoint members of staff being an undoubted right of
the management and the right to stipulate their salaries and allowances
etc. being part of their right to appoint, such right could not be taken
away from the management of a minority institution. The l~arned
Solicitor-General very fairly stated before us that there was no case in
B
which it had been held that the right to pay whatever salaries and
allowances they liked and stipulate whatever conditions they liked was
part of the right to administer the minority institutions under Article
30( l) of the Constitution. On the other hand as we shall immediately
point out there are observations to the contrary.

c In the Nine Judge Bench case, Ray, CJ. and Palekar, J. as we
have already seen, expressed the view that the conditions of employ-
ment of teachers was a regulatory measure conducive to uniformity,
efficiency and excellence in educational courses and did not violate the
fundamental right of the minority institutions under Article 30.
Jaganmohan Reddy, J. and Alagiriswami, J. who agreed with the con-
D
clusions of Ray, C.J. did not say anything expressly about salary,
allowances and other conditions of employment of teachers. Khanna,
J. expressed the view that to a certain extent the State may also regu-
late the conditions of employment of teachers and added that it would
be permissible to make regulations for ensuring the regular payment of
salaries before a particular date of the month. The latter statement of
E Khanna, J., it was a contended for the respondents, limited the extent
of the right of the State.to regulate the conditions of employment of l
.teachers; We cannot agree with this contention. The statement that
the State may make regulations for ensuring the regular payment of
salaries before a particular date of the month was in addition to what
was said earlier that to a certain extent the State may also regulate the
F conditions of employment of teachers. In fact, while dealing with the
question of disciplinary control, Khanna, J., also said that provisions
calculated to safeguard the interest of teachers would result in security
of the tenure and that would inevitably attract competent persons for
the posts of teachers. The same thing may be said about better scales
of pay and decent conditions of service. Mathew, J. with whom
G Chandrachud, J. agreed also indicated that economic regulations,
social welfare legislation, wage and hour legislation and similar mea-
sures, where the burden was the same as that borne by othe.rs would
not be considered an abridgement of the right guaranteed by Article
30( I). Thus, we see that most of the learned Judges who constituted
H the Nine Judge Bench were inclined to the view that prescription of
conditions of service which would. have the effect of attracting better
F.A. PUBLIC SCHOOL v. UNION OF INDIA [REDDY, J.l 26Q

and oompetent teachers would not be considered violative of the A"
fundamental right guaranteed by Article 30(1) of the Constitution.
That would rightly be so because the mere prescription of scales of pay
and other conditions of service would not jeopardise the.right of the
management of minority institutions to appoint teachers of their
choice. ·
B
The excellence of the instruction provided by an institution
would depend directly on the excellence of the teaching staff, and in
tum, 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 conditions of service
which ensure security, contentment and decent living standards to c
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 Art. 30(1) of the
Constitution. The management of a minority Educational institution ,
cannot be permitted under the guise of the fundamental right guaran-
teed by Art. 30(1) of the Constitution, to oppress or exploit its D
employees any more than any other private employee. Oppression or
exploitation of the teaching staff of an educational in,stitution is !'Dunc!
to lead, inevitably, to discontent .and deterioration of the standard of
instruction imparted in the institution affecting adversely the object of

r
making the institution an effective vehicle .of education for the mino-
rity community or other persons who resort to it. The management of E
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 of Art. 30(1) which is
to make the institution an effective vehicle of education.

;;.----\ Apart from the learned Judges who constituted the Nine Judge F
' ' Bench, other learned Judges have also indicated the same view. In the
~- leading case of the- Kera/a Education BUI, the .Constitution Bench
observed ~hat, as then advised, they were prepared to treat the clauses
which were designed to give protection and security to the ill paid
teachers who were engaged in rendering service to the nation as permis-
sible regulations. The observations were no doubt made in connection G
with the grant of aid to educational institutions but tbat cannot make
any difference since, aid, as we have seen, cannot be made conditional
·)- on the surrender of the right guaranteed by Article 30( 1). In State of
Kera/a v. Mother Provincial, (supra), it was said that to a certain
extent the State may regulate conditions of employm!'nt of teachers.
In All Saints High School. v. Government of Andhra Pradesh, H
270 SUPREME COURT REPORTS (1987] 1 S.C.R.

A Chandrachud, C.J., expressly stated that for the maintenance of edu-
cational standards of an institution it was necessary to ensure that it
was competently staffed and therefore, conditions of service prescrib-
ing minimum qualifications for the staff, their pay-scales, their entitle-
ment other benefits of service and the safeguards which must be
observed before they were removed or dismissed from service or their
B services terminated were permissible measures of a regulatory charac-
ter. Kailasam, J. expressed the same view in almost identical language.
We, therefore, hold that Section 10 of the Delhi Education Act which
requires that the scales of pay and allowances, medical facilities, pen-
sion, gratuity, provident fund and other prescribed benefits of the
employees of a recogllised private school shall not be less than those of '-f
C the employees of the corresponding status in schools run by the
appropriate authority and which further prescribes the procedure for
enforcement of the requirement is a permissible regulation aimed at
attracting competent staff and consequently at the excellence of the
educational fasiitution. It is a permissible regulation which in no way
'detracts from the fundamental right guaranteed by Art. 30(1), to the
D minority institutions to administer their educational institutions.
Therefore, to the extent that Section 12 makes Section 10 inapplicable
to unaided minority institutions, it is clearly discriminatory.

Section 8( 1) merely empowers the Administrator to make rules
regulating the minimum qualifications for recruitment, and the condi.-
E lions of service of recognised private schools. Section 8(1) is innocuous
and in fact Section 13 which applies to unaided minority schools is
almost on the same lines as Section 8( l). The objection of the respon-
dents is really to Section 8(2), 8(3), 8(4) and 8(5) whose effect is (1) to
require the prior approval of the Director for the dismissal, removal,
reduction in rank or other termination of service of an employee of a
F recognised private school, (2) to give a right of appeal to a Tribunal f '
consisting of a single member who shall be a District Judge or who has \
held an equivalent judicial office, (3) to require prior approval of the
Director if it is proposed to suspend an employee unless immediate
suspension is necessary by reason of the gross misconduct of the em-
ployee in which case the suspension shall remain in force for not more
G than 15 days unless approval of the Director is obtained in the mean
while. In the Nine Judge Bench case Ray, C.J. and Palekar, J. took the
view that Section 5 IA of the Gujarat Act which provided that no
member of the staff of an affiliated college shall be dismissed, removed
or reduced in rank except with the approval of the Vice-Chancellor
was violative of Article 30( I) as it coµferred arbitrary power on the
H Vice-Chancellor to take away rights of the minority institutions. Simi-
F.A. PUBLIC SCHOOL v. UNION OF INDIA [REDDY, J.J 271

larly, Section 52A which contemplated reference of any dispute con- A
nected with conditions of service between the governing body and any
member of the staff to an Arbitration Tribunal ccinsisting of one
member nominated by the governing body, one member nominated by
the member of the staff and an umpire appointed by the Vice-
Chancellor was also held to be violative of Article 30( 1). It was said
that this provision would introduce an area of litigious controversy in B
educational institutions and displace the domestic jurisdiction of the
management. Jaganmohan Reddy, J. and Alagiriswami, J., agreed
with the conclusions of Ray, C.J. Khanna, J. thought that the blanket
power given by Section 5 lA to the Vice-Chancellor to veto the disci-
plinary action and the power given by Section 52A to the Vice-
Chancellor to noninate an umpire were both objectionable, though he
c
observed that there was nothing objectionable-in selecting the method
of arbitration for settling major disputes. Mathew, J., also objected to
the blanket power given to the Vice-Chancellor by Section 5 lA. He
also thought that Section 52A was too wide and permitted needless
interference in day-to-day affairs of the in~titution by providing for
arbitration in petty disputes also. Keeping in mind the views of the D
s.everal learned Judges, it becomes clear that Section 8(2) must be held
to be objectionable. Section 8(3) provides for an appeal to the Tri-
bunal constituted under Section 11, that is, a Tribunal consisting of a
person who has held office as a District Judge or any equivalent judi-

r cial office. The appeal is not to any departmental official but to a
Tribunal manned by a person who has held office as a District Judge E
and who is required to exercise his powers not arbitrarily but in the
same manner as a court of appeal under the Code of Civil Procedure.
The right of appeal itself is confined fo a limited class of cases, namely,
those of dismissal, removal or reduction in rank and not to every .
dispute between an employee and the management. The limited right
1 - . of appeal, the character of the authority constituted to hear the appeal F
' and the manner in _which the appellate power is required to be exer-
cised make the provision for an appeal perfectly reasonable, in our
view. The objection to the reference to an Arbitration Tribunal in the
Nine Judge Bench case was to the wide power given to the Tribunal to
entertain any manner ·of dispute and the provision for the appointment
of umpire by the Vice-Chancellor. Those defects have been cured in G
the provisions before us. Similarly, the provision for an appeal to the
..
\ _
1·
Syndicate was considered objectionable in State of Kera/a. v Mother
Provincial, (supra), as it conferr~d the right on the university.

Section 8(4) would be inapplicable to minority institutions if it
had conferred blanket power on _the Director to grant or withhold H.
272 SUPREME COtJRT REPORTS [ 1987] 1 S.C.R.

A prior approval in every case where a management proposed to suspend
an employee but we see that it is not so. The management has the right
to order immediate suspension of an employee ii:i case of gross miscon-
duct but in order to prevent an abuse of power by the management a
safeguard is provided to the employee that approval should be
obtained within 15 days. The Director is also bound to accord his
B approval if there are adequate and reasonable grounds for such sus-
pension. The provision appears to be eminently reasonable and sound )
and the answer to the question in regard to this provision is directly
covered by the decision in All Saints High School, where Chandra-
chud, C.J. and Kailasam, J. upheld Section 3(3) (a) of the Act
.',-/
impugned therein. We may also mention that in that case the right of f

c appeal conferred by Section 4 of the Act was also upheld. How neces-
sary it is to afford some measure of protection to employees, without
interfering with the management's right to take disciplinary action, is
illustrated by the action taken by the management in this very case ~'
against some of the teachers. These teachers took part along with
others in a 'silent march', first on April 9, 1986 and again on April 10,
D 1986, despite warning by the principal. The march was during the
break when there were no classes. There were no speeches, no chant·
ing or shouting of slogans, no violence and no disruption of studies.
The behaviour of the teachers appears to have been orderly and ex-
emplary. One would have thought that the teachers were, by their
silent and dignified protest, setting an example and the soundest of
E precedents to follow to all agitators everywhere. But instead of
sympathy and appreciation they were served with orders of immediate
suspension, something which would have never happened if all the
provisions of Section 8 were applicable to the institution.

Thus, Sections 8(1), 8(3), 8(4) and 8(5) do not encroach upon
F any right of minorities to administer their educational institutions. -.._
Section 8(2), however, must, in view of the authorities, be held to '
interfere with such right and, therefore, inapplicable to minority
institutions. Section 9 is again innocuous since Section 14 which
applies to unaided minority schools is virtually on the same lines as
Section 9 .. We biive already considered Section llwhile dealing with
G Section 8(3). We must, therefore, hold that Section 12 which makes
the provisions of Chapter IV inapplicable to unaided minority schools
is discriminatory not only because it makes Section 10 inapplicable to
minority institutions, but also becuase it ,makes Sections 8( 1), 8(3),
8(4), 8(5), 9 and 11 inapplicable to unaided minority institutions. That
r'
' the Parliament did not understand Sections 8 to 11 as offending the
H fundamental right guaranteed to the minorities under Article 30( l~ is
F.A. PUBLIC SCHOOL v. UNION OF INDIA (REDDY, J.) 273

evident from the fact that Chapter IV applies to aided minority institu-
A
tions and it cannot for a moment be suggested that surrender of the
right under Article 30( l) is the price which the aided minority institu-
tions have to pay to obtain aid from the Government.

The result of our discussion is that Section 12 of the Delhi School
Education Act which makes the provisions of Chapter IV inapplicable B
to unaided minority institutions is discriminatory and void excepi to
the extent that it makes-s_.,ction 8(2) inapplicable to unaided minority
institutions. We, therefore;'gr~nt_a declaration to that effect and direct
.'-'.the Union of India and the Delhi Administration and its officers, to
' enforce the proyisions of Chapter IV (except Section 8(2)) in the man-
ner provided in the Chapter in the case of the Frank Anthony Public
School. The management of the school is directed not to give effect to
c
the orders of suspension passed against the me_mbers of the staff.

After the arguments of both sides were fully heard, Shri Sushi!
Kumar who appeared for the institution along with Mr. Anthony sub-
mitted that according to the instructions of the Council for the Indian D
School Certificate Examination, "the staff must he paid salaries and
allowances not lower than those paid in comparable to Government
schools in the State in which the school is located" and in view of this
instruction it was not necessary for us. to go into the question of the
applicability of Section JO to minority institutions. We do not attach
any significance to this last minute, desperate submission. It is not E

J clear whether- the instruction is a condition imposed by the Council
pursuant to S. 19 of the Delhi School Education Act. There is no w.ay
by which the staff can seek to enforce the instruction. Nor is the
instruction of any relevance since it is not the case of the respondents
tha! the institution is.. paying oris agreeable to pay the scales of pay
(\stipulated in the instruction. F
' .

~ We must refer to the submissions of Mr. Frank Anthony regard-
ing 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 exceU-
.ence of the institution is largely dependent on the excellence of the G
teachers and it is no answer to the demand of the teachers for higher
salaries t'o say that in view of the high reputation enjoyed by the
+- institution for its excellence, it is unnecessary to seek to apply provi-
sions like Section JO of the Delhi School Education Act to the Frank
•

Anthony Public School. On the other hand, we should think that the
very contribution made by the teachers to earn for the institution the H
SUPREME COURT REPORTS [lQ87] l S.C.R.
I
A. 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
IO applies. Regarding the fear expressed by Shri Frank Anthony that
the institution may have to close down we can only hope that the
management will do nothing to the nose to spite the face, merely to
'put the teachers in their proper place'. The fear expressed by the
B 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.

S.R. Petition allowed. H
c

,-.
(