Gujarat High Court
Mount Carmel High School vs State Of Gujarat on 23 January, 2025
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Reserved On : 28/10/2024
Pronounced On : 23/01/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8081 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8159 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8159 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8160 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8233 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8233 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8231 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8163 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8163 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8166 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8167 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8196 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8168 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8170 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8172 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8172 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8241 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8235 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8234 of 2021
Page 1 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8234 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8173 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8236 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8199 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8199 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8202 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8206 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8209 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8238 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 1328 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 8227 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8227 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8225 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8223 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8229 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8229 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8239 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8360 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8360 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8366 of 2021
With
Page 2 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8366 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8363 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8372 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8372 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8368 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8368 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8358 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8358 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 10302 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 10302 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8379 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8379 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 10303 of 2021
With
CIVIL APPLICATION (FOR AMMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 10303 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8374 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 10260 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 10260 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8424 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8426 of 2021
With
Page 3 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
R/SPECIAL CIVIL APPLICATION NO. 8376 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8428 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8896 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8552 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8552 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8555 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8555 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 11144 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 11144 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8708 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8708 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8551 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8551 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8553 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 10258 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8557 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8710 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8713 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8713 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8653 of 2021
With
Page 4 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8653 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8651 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8651 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8647 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8647 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 11108 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8655 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8655 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8658 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8658 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 11175 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 9439 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8701 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8703 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8704 of 2021
With
CIVIL APPLICATION (FOR AMMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8704 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8715 of 2021
With
CIVIL APPLICATION (FOR AMMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8715 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8706 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8716 of 2021
Page 5 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
With
R/SPECIAL CIVIL APPLICATION NO. 8718 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8718 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8720 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8723 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8725 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8728 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8865 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8873 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8873 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8880 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 11131 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 11131 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 1326 of 2022
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 1326 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 8870 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8867 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8876 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8876 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8877 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8877 of 2021
Page 6 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
With
R/SPECIAL CIVIL APPLICATION NO. 8871 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 8871 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 8869 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 9679 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 11132 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 11132 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 10299 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 9124 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 9267 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 9268 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 9268 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 9269 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 9325 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 9329 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 9329 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 9263 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 11133 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 11133 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 9332 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 9333 of 2021
With
Page 7 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 9333 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 10261 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 9630 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 9716 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 9719 of 2021
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 9719 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 9717 of 2021
With
CIVIL APPLICATION (FOR AMMENDMENT) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 9717 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 10315 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 1325 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 10582 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 10562 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 12921 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 16584 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 1324 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
=============================================
Approved for Reporting Yes No
✔
=============================================
MOUNT CARMEL HIGH SCHOOL & ANR.
Versus
STATE OF GUJARAT & ORS.
=============================================
Page 8 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Appearance:
MR. MIHIR THAKORE, LD. SR. ADV WITH MR. PARITOSH GUPTA, MS.
AISHWARYA REDDY WITH MR. DARSHAN PARIKH WITH MR. YASH MODI
WITH MS. PARINAZ V. FANIBANDA, LD. ADVOCATES FOR THE PETITIONERS
IN SCA NO.8081/2021 AND OTHER CONCERNED MATTERS.
MR. MIHIR JOSHI, LD. ADV. WITH MR. ISA HAKIM, LD. ADV. FOR THE
PETITIONERS IN SCA NO. 12921/2021
MR. SHALIN MEHTA, SENIOR ADVOCATE WITH MR. HEMANG SHAH FOR
PETITIONERS IN SCA NO. 8896/2021.
MR ABHISHEK M MEHTA FOR THE PETITIONERS IN SCA NO.9679/2021
MR SAQUIB S. ANSARI FOR THE PETITIONERS IN SCA NO.10582/2021
MR KALPANA K RAVAL AND MR NIKUNT K RAVAL FOR THE PETITIONERS IN
SCA NO.10562/2021
MR. N.K.MAJMUDAR, LD. ADV. FOR THE PETITIONERS IN SCA
NO.16584/2022
MR.KAMAL TRIVEDI, ADVOCATE GENERAL WITH MR. VINAY B. VISHEN, AGP
WITH ANKEETA RAJPUT, ADVOCATE AND MS HETAL PATEL, AGP for the
STATE RESPONDENTS
MR. A.D. OZA, ADVOCATE WITH MR. MEET SHAH, ADVOCATE FOR THE
RESPONDENT(S) NO. 2
MS GARIMA MALHOTRA FOR THE RESPONDENT(S) NO. 4 (SCA
NO.8081/2021)
=============================================
CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE
MRS. JUSTICE SUNITA AGARWAL)
1. For the convenience of readers, the judgment is divided
into parts as indicated in the table of contents, given
hereinbelow :-
Page 9 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Table of contents
Sl. No. Subject Page
Nos.
A Prologue 12
B Statutory Scheme 13
C Constitutional Protection 47
D Judicial Precedents and the arguments of
the learned counsels for the petitioners on 48
the Constitutional Principles enshrined in
Article 30:-
______
(a) State of Kerala v. Very Rev. Mother 49
Provincial;
______
(b) Ahmedabad St. Xavier’s College 50
Society v. State of Gujarat;
______
(c) N. Ammad v. Emjay High School; 61
______
(d) Board of Secondary Education and
Teachers Training v. Jt. Director of
Public Instructions; 62
______
(e) T.M.A. Pai Foundation & Ors. vs.
State of Karnataka & Ors:- 62
______
(f) Secy., Malankara Syrian Catholic
College v. T. Jose 73
______
83
(NCT of Delhi)
______
(h) Chandana Das (Malakar) v. State of
W.B. 90
______
(i) S.K. Mohd. Rafique v. Contai
Rahamania High Madrasah 98
(i) Summary of arguments of Mr. Mihir
Thakore, the learned Senior advocate. 100
(ii) Summary of arguments of Mr. Shalin
N. Mehta, the learned Senior advocate. 105
Page 10 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
(iii) Summary of arguments of Mr. Mihir 112
Joshi, the learned Senior advocate. ______
(iv) Summary of the arguments of Mr.N.K. 130
Majmudar, the learned advocate,
______
(v) Further arguments
132
E Arguments of the Learned Advocate
General for the State respondents 135
F Discussion And Analysis 158
(i) The Equality Principle 160
(A) Rev. Father W. Proost 160
(B) Ahmedabad St. Xavier’s 161
(ii) The Autonomy of recognized
175
institutions: Aided and Unaided.
(a) Ahmedabad St. Xavier’s 175
(iii) Standards/Excellence of Education
vis-a-vis freedom to administer 182
(b) T.M. A. Pai Foundation 189
(iv) Test of reasonableness and being
191
rationale; Permissible fetters by the
State regulations
(v) Right to Administer: Right to choose 193
Principals/Teachers
Decisions in Pre-TMA Pai Regime – 199
Judgement following Ahmedabad St.
Xavier’s
Ratio of the Decisions In Post TMA Pai 206
Regime
G Findings and conclusion on the impugned 222
Provisions
Page 11 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
A. PROLOGUE
2. In this bunch of Writ petitions, the recognised and aided
minority institutions (both religious and linguistic)
registered by the State of Gujarat are seeking to
challenge the validity of Section 40-A of the Gujarat
Secondary & Higher Secondary Education Act, 1972 (in
short as “the Act’ 1972”), amended by the Gujarat
Secondary and Higher Secondary Education
(Amendment Act) 2021 (Act No. 16 of 2021) (in short as
“the Amendment Act of 2021”), came into force with
effect from 23.03.2021, on the ground that it offends the
fundamental rights of the minorities guaranteed under
Articles 29 and 30 of the Constitution of India to
establish and administer educational institutions of their
choice. Further prayer is to hold the rules, namely,
“Principal in the Registered Private Secondary and
Higher Secondary Minority Schools (Procedure for
Selection) Rules, 2021” (in short as the “Principal
Selection Rules’ 2021”) and “the Teachers in Registered
Private Secondary and Higher Secondary Minority
Schools (Procedure for Selection) Rules, 2021” (in short
as the “Teachers Selection Rules’ 2021), framed in
exercise of the powers conferred under Section 35 of the
Act’ 1972 as ultra vires. Further prayer is in the nature
of a Writ of prohibition, prohibiting the respondent
authorities from applying the provisions of Section
17(26), Section 34(2) and Section 35 of the Act’ 1972 in
relation to the affairs of the minority institutions such as
the petitioners herein.
Page 12 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
3. An inter-departmental communication dated 04.06.2021
addressed by the Joint Director of Education,
Gandhinagar to the District Education Officers of the
State, informing them about the procedure to be
adopted in the matter of recruitment of
Principals/teachers in the secondary education
institutions is also subject matter of challenge herein.
B. STATUTORY SCHEME
4. Before delving into the controversy at hand, at the
beginning, it would be apt to set out the relevant
statutory provisions, pre and post amendment. The
original section 40-A of the Act’ 1972 as was inserted by
the Gujarat Act No. 25 of 1973 with effect from
08.11.1973, the Principal Act, reads as under :-
“40-A. Savings
Nothing contained in clause (26) of Sec. 17, Secs.
34 & 35, and clause (b) of sub-section (1) and sub-
secs. (2), (3), (4) and (5) of Sec 36 shall apply to
any educational institution established and
administered by a minority. whether based on
religion or language.”
Section 17(26) provides that :-
“Section 17. Powers and Duties of the Board. –
Subject to the provisions of this Act, the powers
and duties of the Board shall be as follows,
namely:-
xxx xxx xxx Page 13 of 260 Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025 NEUTRAL CITATION C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025 undefined
(26) to lay down qualifications, methods of
selection except for headmasters and teachers of
registered Government aided private, secondary
and higher secondary schools and conditions of
appointment, promotion and termination of
employment and rules for conduct and discipline of
the headmaster and the teaching & non-teaching
staff of registered private secondary schools and
registered private higher secondary schools.”
Sections 34, 35 and 36 of the Act’ 1972 further read as
under:-
“Section 34. Recruitment and condition of
service of persons appointed in registered
private secondary schools or registered private
higher secondary schools –
(1) Fifteen per cent of vacancies of the teaching
staff of a registered private secondary school and a
registered private Higher Secondary School shall
be filled up by persons belonging to the Scheduled
Castes and Scheduled Tribes.
Provided that where a person belonging to a
Scheduled Caste or Scheduled Tribe is not
available for filling any such vacancy, the vacancy
shall be filled up as otherwise provided in this Act.
Explanation. – In this sub-section,-
(a) “Scheduled Castes” means such castes, races or
tribes, or parts of, or groups within, such castes,
races or tribes as are deemed to be Scheduled
Castes in relation to the State of Gujarat under
Article 341 of the Constitution of India
(b) “Scheduled Tribes” means such tribes or tribal
communities or parts of, or groups within, such
tribes of tribal communities as are deemed to be
Scheduled Tribes in relation to the State of Gujarat
under Article 342 of the Constitution of India
Page 14 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
(2) Subject to sub-sec. (1), the Board shall by
regulations regulate the recruitment (except for
headmasters and teachers of registered
Government aided private secondary and higher
secondary schools) and conditions of service
including conduct and discipline of persons
appointed as headmaster, teachers and members of
non-teaching staff of registered private secondary
schools and registered private higher secondary
schools in the State:
Provided that the conditions of service applicable
immediately before the appointed day to the
guaranteed staff shall not be varied to their
disadvantage except with the previous approval of
the State Govt.:
Provided further that it shall be lawful for any
registered private secondary school or registered
private higher secondary school imparting post
basic education to make, with the previous
approval of the Board, additional regulations,
consistent with the basic nature and concept of
post basic education and not inconsistent with the
regulations made by the Board for regulating the
conditions of service of persons appointed as head-
master, teachers and members of non-teaching
staff of that school.”
Section 35. Selection of Teachers and
Headmasters, etc. – The procedure for selection
of teachers and headmasters of registered private
secondary and higher secondary schools shall be
such as may be notified by the State Government
by rules from time to time.”
Section 36. Dismissal, removal and reduction
in rank of certain persons. – (1) No person who
is appointed as a head-master, a teacher or a
member of non-teaching staff of a registered
private secondary school or registered Private
Higher Secondary School shall be dismissed orPage 15 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
removed or reduced in rank nor shall his service be
otherwise terminated by the manager until –
(a) he has been given by the manager a reasonable
opportunity of showing cause against the action
proposed to be taken in regard to him, and
(b) the action proposed to be taken in regard to
him, has been proved in writing by an officer
authorized in this behalf by the Board:
Provided that nothing in this sub-section shall
apply to any person who is appointed for a
temporary period only.
(2) The officer referred to in clause (b) of sub-sec.
(1) shall communicate his decision within a period
of forty-five days, from the date of receipt by him of
the proposal under the said clause (b) and if such
decision is not communicated to the manager by
the said officer within such period the action
proposed to be taken under the said clause (b) shall
be deemed to have been approved by the said
officer.
(3) Where a head master, a teacher or a member
of non-teaching staff of a registered private
secondary school or registered Private Higher
Secondary School is suspended by the manager of
the school pending any inquiry proposed to be held
against him, the fact of such suspension together
with the grounds therefor, shall be immediately
communicated by the manager to an officer
authorized in this behalf by the Board, and such
suspension shall be subject to ratification by the
said officer within a period of forty-five days from
the date of the receipt of the communication in this
behalf by such officer and if such ratification is not
communicated to the manager by the said officer
within such period, the suspension under reference
shall cease to have effect on the expiry of such
period.
Page 16 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
(4) Where a head-master, a teacher or a member of
the non-teaching staff of a registered private
secondary school or registered Private Higher
Secondary School desires to submit his resignation,
the resignation shall be tendered by him in person
to the District Education Officer concerned and
shall not be accepted by the manager unless it is so
tendered and forwarded to him by such officer duly
endorsed. The acceptance of any such resignation
tendered in contravention of this sub-section shall
be ineffective.
(5) Any person aggrieved by an order of the
authorized officer under clause (b) of sub-sec. (1)
may make an appeal to the Tribunal within a period
of thirty days from the date of the decision of the
authorized officer.”
5. We may note with the enactment of the Gujarat Act No.5
of 2014, with effect from 07.06.2014, the Gujarat State
School Service Commission Act, 2013 came to be
enacted to establish a State School Service Commission
to undertake recruitment of teachers and headmasters
in the registered private secondary and higher
secondary schools including primary schools receiving
grant-in-aid from the State Government. The said Act,
however, has never come into force.
6. The offending provision of the amended Section 40-A of
the Act’ 1972 came to be inserted by the Gujarat
Secondary and Higher Secondary Education
(Amendment) Act, 2021 with effect from 23.03.2021.
The amended Section 40-A inserted by the Act’ 2021
reads as under :-
Page 17 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
“40A. Savings
Notwithstanding anything contained in this Act,
sub- section (1) of section 34, and clause (b) of sub-
section (1) and sub-sections (2), (3), (4) and (5) of
section 36 shall not apply to any educational
institutions established and administered by a
minority, whether based on religion or language.”
The Statement of Object and Reasons of the Amendment
Act of 2021 reads that :-
“STATEMENT OF OBJECTS AND REASONS
As per the provisions of the Gujarat Secondary and
Higher Secondary Education Act, 1972 (Guj. 18 of
1973), the Gujarat Secondary and Higher
Secondary Education Board is constituted so as to
regulate the Secondary and Higher Secondary
Education in the State. The Board conducts the
certificate examination for both the Secondary
School (i.e. 10th standard) and Higher Secondary
School (i.e. 12th standard). The Board grants
registration to the schools and grants permission to
open new school in the State also. Moreover, the
Board enjoys the powers and performs the duties
as enumerated in section 17 and section 18 of the
said Act.
Clause (q) of section 2 of the said Act provides for
the definition of “recoginsed school” which means a
secondary school or a post basic school recognized
by the Director of Education, Gujarat State
amongst others. Nowadays, new schools are
opened by the Education Department as also by the
other Departments such as the Social Justice and
Empowerment Department, the Tribal
Development Department, Samagra Shikshan
Abhiyan in the State. Therefore, a suitable
amendment is proposed in said clause (q). Clause 2
of the Bill provides for the same.
The Gujarat State Legislature has enacted the
Page 18 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Gujarat Educational Institutions Services Tribunal
Act, 2006 (Guj. 20 of 2013) so as to bring about
uniformity amongst all laws relating to the
Educational Tribunals and to provide for the
constitution of a tribunal i.e. the Gujarat
Educational Institutions Services Tribunal for the
purpose of determining disputes relating to
conditions of service of the members of the
teaching and non-teaching staff of the educational
institutions in the State. Existing section 36 of the
said Act of 1973 provides for the procedure for
dismissal, removal and reduction in rank of certain
persons of the registered private Secondary School
or registered private Higher Secondary School and
also provides for an appeal against the order of the
authorised officer to the Tribunal by the aggrieved
person under sub-section (5) of said section 36.
Now, as the Gujarat Educational Institutions
Services Tribunal has already been constituted
under section 3 of the said Act of 2013, it is,
therefore, considered necessary to make suitable
amendment in sub-section (5) of section 36 of the
said Act of 1973. Clause 3 of the Bill provides for
the same.
The Supreme Court in the matter of T.M.A. Pai
Foundation & Ors vs. State of Karnataka & Ors
2002 (8) SCC 481 has held that so far as minority
institutions are concerned, the academic standard
cannot be lowered in any manner. Regulations can
be framed governing service conditions for
teaching and other staff of minority educational
institutions where the aid is provided by the State
without interfering with overall administrative
control of the management over the staff.
Accordingly, section 40A of the said Act is
proposed to be substituted. Clause 4 of the Bill
provides for the same.
This Bill seeks to amend the said Act to achieve the
aforesaid objects.”
7. With the enforcement of the Amendment Act of 2021,
Page 19 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
original Section 40-A came to be substituted resulting in
applying the earlier excluded provisions of Section
17(26), 34(2) and Section 35 of the Act, 1972 to the
educational institutions established and administered by
the minorities (both religious and linguistic) in the State
of Gujarat.
8. With the application of the aforesaid provisions, by
virtue of Section 34(2) power has been conferred upon
the Board, viz. Gujarat Secondary and Higher Secondary
Education Board, established under the Act’ 1972 to lay
down qualifications, method of selection, and conditions
of appointment, promotion and termination of
employment as also the rules for conduct and discipline
of the headmaster, teaching and non-teaching staff of
registered private secondary and higher secondary
schools.
The second proviso to sub-section (2) of Section 34
empowers a registered private secondary or higher
secondary school imparting post basic education to
make additional regulations with the previous approval
of the Board, consistent with the basic nature and
concept of the post basic education and not inconsistent
with the regulations made by the Board for regulating
the conditions of service of persons appointed as
headmaster, teacher and members of non-teaching staff
of that school.
9. Section 35 empowers the State Government to frame
rules providing procedure for selection of teachers and
Page 20 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Head-master of registered private secondary and higher
secondary schools.
10. Special Civil Application No. 8081 of 2021 came to be
filed on 11.06.2021 challenging the amended Section 40-
A on the ground of it being ultra vires Articles 29 and 30
of the Constitution of India on the premise that the
power conferred upon the Board/State Government to
lay down the qualifications, method of selection,
conditions of appointment, promotion, termination of
employment, rules for conduct and discipline of
teachers/employees, as may be set out, would infringe
the rights of the minorities to administer and manage
their institutions. Similar other writ petitions were filed
and were entertained by this Court.
11. During the pendency of the Writ petitions, the “Principal
and Teachers Procedure for Selection Rules, 2021” came
into force on 18.10.2021 to facilitate the process of
selection of principal and teachers of minority
institutions. The said rules enacted by the State
Government in exercise of the power under Section 35 of
the Act’ 1972 are applicable to minority institutions,
which are registered private secondary and higher
secondary schools having been granted the status of
minority (religious or linguistic) under the law for the
time being in force and receiving grant-in-aid from the
State Government. Separate rules for recruitment of
Principal and teachers have been framed and notified on
the same date, i.e. 18.10.2021 providing for constitution
Page 21 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
of Scrutiny Committee; Minority school selection
committee; eligibility qualifications; selection procedure;
selection criteria, allocation of marks for preparation of
merit list.
12. Relevant provision of both the Rules are extracted
hereinunder for ready reference :-
The Principal in the Registered Private Secondary
and Higher Secondary Minority Schools
(Procedure for Selection) Rules, 2021
3. Constitution of Scrutiny Committee for Minority
Schools. – (1) There shall be constituted a Scrutiny
Committee for Minority Schools to be known as “The
Gujarat State Scrutiny Committee for Recruitment of
Principal in the Registered Private Secondary and
Higher Secondary Minority School.”
(2) The Scrutiny Committee for Minority Schools shall
consist of the following members, namely:-
Sr. Designation
No.
(1) Director of Schools, Gujarat State, Chairman
Gandhinagar
(2) Secretary, Gujarat Secondary and Member Ex-
Higher Secondary Education Board, officio
Gandhinagar
(3) A senior Government Officer, not Member
below the rank of Deputy Secretary,
to be appointed by the Government
(4) Two eminent educationists, to be Member
nominated by the Government
(5) Five representatives from minority Member
School managements to be nominated
by the Government.
(6) The Joint Director of Schools, Gujarat Member
State Gandhinagar Secretary
Page 22 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
(3) The headquarters of the Scrutiny Committee for
Minority Schools shall be at Gandhinagar.
4. Eligibility for appointment of Principal.- To be
eligible for appointment as a Principal, a candidate shall
possess –
(1) requisite educational qualifications in accordance
with the provisions of the Gujarat Secondary and Higher
Secondary Education Act, 1972 and Gujarat Secondary
and Higher Secondary Education Regulations, 1974 as
amended from time to time; and
(2) basic knowledge of computer application as
prescribed in the Gujarat Civil Services Classification
and Recruitment (General) Rules 1967.
5. Selection of Principals.- The Scrutiny Committee
for Minority Schools shall carry out scrutiny of persons
who have applied for appointment on the posts of
Principals in the registered private Secondary and
Higher Secondary Minority Schools in accordance with
the provisions of these Rules and provisions of the
Gujarat Secondary and Higher Secondary Education Act,
1972 and Regulations framed thereunder from time to
time.
6. Duties and functions of the Scrutiny Committee
for Minority Schools.-
The Scrutiny Committee for Minority Schools shall –
(1) ascertain from the District Education Officers, the
number of posts of Principals, for which recruitment is
to be made. However, it shall be incumbent upon the
District Education Officers to send the requisition for
filling up of vacant posts of Principals to the Scrutiny
Committee for Minority Schools after calling upon the
details of vacant posts of principals from management of
the respective minority schools;
(2) invite applications by an advertisement in the widely
circulated Gujarati and English newspapers in the State
of Gujarat;
Page 23 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
(3) scrutinize applications received and prepare the
school wise merit list on the basis of weightage of the
marks secured by the candidate in HMAT and
educational qualification as also the experience, if any,
in the ratio of 60% and 40%, respectively.
(4) The list of first 15 candidates who are in the merit list
as prepared in accordance with Rule 6 (3) above, shall
be sent to the Minority School Selection Committee for
personal interview.
7. Constitution of Minority School Selection
Committee.- (1) The Minority School Selection
Committee shall consist of the following members,
namely:-
Sr.
No. Designation
(1) One of the Trustees nominated by the Chairman
concerned Trust/Management of the
Minority School
(2) An academician outside of the taluka, Member
to be appointed by the District
Education Officer as suggested by the
concerned minority school
Trust/Management
(3) One representative to be nominated by Member
the concerned Minority School
Trust/Management
(4) One Principal of any other Grant-in-aid Member
registered Private School to be
nominated by the concerned
Trust/Management Minority School
(5) The Education Inspector of the Office Member
of District Education Office of the Secretary
concerned districts(1) The quorum for the meeting of the Minority School
Selection Committee shall be three (3) members, in
which presence of District Education Inspector
shall be compulsory.
Page 24 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
(2) The headquarters of the Minority School Selection
Committee shall be at the office of the concerned
District Education Officer, or any other place as
determined by the Minority School Selection
Committee.
(3) The record of selection procedure shall be
maintained by the office of the Director of Schools,
concerned District Education Officer and the
minority school.
8. Preparation of Requisitions.- The
Trust/Management of minority secondary and higher
secondary school shall send a requisition to the District
Education Officer showing total number of vacancy/ies
for the post of Principal resulted on account of any
reason whatsoever except in case of retirement within
30 days from occurrence of such vacancies including
the newly created posts. In case of the vacancy/ies likely
to occur in the next academic year due to retirement of
the Principal, the requisition shall be made at least
before six months’ from the date of such retirement.
9. Application for the post of Principal.- (1) A
candidate who intends to apply for the post of a
Principal in minority school/s shall) submit an
application to the Scrutiny Committee for Minority
Schools in such form, with such fees and within such
time limit as may be specified in the advertisement.
(2) The fees once paid shall not be refunded or held
over for the subsequent selection.
(3) The request for withdrawal of application form and
refund of fees shall not be entertained in any
circumstances.
10. Scrutiny of the Applications.- The application
shall be scrutinized by the Scrutiny Committee for
Minority Schools and the Scrutiny Committee for
Minority Schools may adopt such procedure for such
scrutiny as it deems fit.
Page 25 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
11. Preparation of Merit list for Personal
Interview.- (1)(a) The Scrutiny Committee for Minority
Schools shall prepare a merit list for personal interview
on the basis of weightage of 60% marks of the total
marks secured by the concerned candidate in Head
Master Aptitude Test (HMAT) to be conducted at least
once in a year by the State Examination Board,
Gandhinagar.
(b) The marks secured by the concerned candidate in
HMAT shall be valid for five years from the date of the
result of the HMAT.
(c) The candidate who has secured at least 50% marks
in HMAT shall only be considered as qualified candidate
for HMAT weightage,
(d) Subject to the other provisions of these Rules, a
candidate shall be at liberty to appear in the Head
Master Aptitude Test (HMAT) for more than one time.
However, the score shown in the certificate which has
been produced by the candidate along with the
application shall be considered for preparation of merit
list for personal interview in the manner as specified in
Appendix II;
(2) The weightage of 40% shall be given, out of the
marks secured in the prescribed educational
qualifications for the concerned post (Please see
example in Appendix-II).
(3) The maximum marks for the qualification for the
purpose of weightage of 40% shall be as prescribed in
Appendix I.
(4) The Scrutiny Committee for Minority Schools shall
prepare a school wise merit list for personal interview
of the successful candidates specifying their names,
application numbers and total marks obtained by them
in order of merit on the basis of aggregate marks finally
awarded to each candidate as provided under sub-rules
(1) to (3) above limited to the number of posts
advertised by the Scrutiny Committee for Minority
Schools.
Page 26 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
(5) The Scrutiny Committee for Minority Schools shall
prepare the list of unqualified candidates who are not
included in merit list due to non-fulfillment of
qualification criteria prescribed in above Rule 11(1),
11(2) and 11(3) specifying their names, application
numbers and total marks obtained by them.
(6) The Scrutiny Committee for Minority Schools shall
call the candidate figuring in the merit list for personal
interview to verify the certificates of educational
qualifications, birth date, caste certificate and such
other documents. In case of verification, if the Scrutiny
Committee finds any document/s or/and information
false, fabricated, or concocted, such candidate shall be
disqualified for the appointment of Principal in
accordance with provisions of Rule 17.
(7) Candidate who are included in the merit list for
personal interview prepared under sub-rule (4) above,
shall be allowed to select maximum 07 schools from the
list of all the schools having vacant post of Principal.
(8) The list of first 15 candidates who are in the merit
list as prepared in accordance with sub-Clause (4)
above, shall be sent by the District Education officer to
the Minority School Selection Committee for personal
interview.
12. Verification of Documents.- The concerned
District Education Officer shall verify the certificates of
educational qualifications, birthdate, caste certificate
and such other documents submitted by the concerned
15 candidates before issuance of call letter to such
candidates for personal interview. In case of
verification, if the District Education Officer finds any
document/s or/and- information false, fabricated, or
concocted, such candidate shall not be called for
personal interview for the post of Principal.
13. Selection Procedure.- (1) Subject to provisions of
Rule 12 above, the District Education Officer and
Minority School Trust/Management shall jointly issue
the call letter to such candidates, who are in the merit
Page 27 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
list as prepared in accordance with rules, for personal
interview before the Minority School Selection
Committee.
(2) The Minority School Selection Committee shall give
marks to the candidates out of total 40 marks.
(3) The marks to be given to the candidate by the
Minority School Selection Committee shall be based on
following norms, namely:-
(a) The ability of administration of the educational
activities of the school;
(b) The ability of overall administration of the school;
(c) The ability to bring reform in the quality and
standards of education of the school;
(d) The ability to conduct the extra-curricular activities
of the school to achieve excellence in the education;
(e) The ability of Student management;
(f) Past Educational research;
(g) Knowledge of Curriculum reforms;
(h) Knowledge about Administrative/Executive/
Educational Rules and Regulations;
(i) General Knowledge.
After considering the marks given to candidates in
the personal interview, the final selection list of not
more than three candidates shall be prepared by the
Minority School Selection Committee and recommended
to the minority school Trust/Management for the
appointment. The Minority School Trust/Management
shall issue an order for appointment to the first
candidate out of the final selection list so prepared. If
the first candidate, by whatever reason, does not join
the school to which he is given appointment then in
such a case, rather than initiating the whole process
afresh, the second number candidate of the final
selection list shall be given appointment order and if
under the circumstances, the second number candidate
does not join the school then the minority school Trust/Page 28 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Management shall consider to give an appointment to
the candidate who is at the third number position at the
final selection list prepared by the Minority School
Selection Committee.
19. Medical Examination:-
A candidate selected for appointment shall submit a
medical certificate of fitness as provided in Regulation
21 of the Gujarat Secondary and Higher Secondary
Education Regulations, 1974.
Appendix – I
See Rule 11(3)
No. Qualification Maximum
Marks
1 Graduate Degree (As per Regulation 10
20(1) of the Gujarat Secondary and
Higher Secondary Education
Regulations, 1974)
2 Post Graduate Degree (As per 07
Regulation 20(1) of the Gujarat
Secondary and Higher Secondary
Education Regulations, 1974)
3 Post Graduate Degree (As per 10
Regulation 20(1) of the Gujarat
Secondary and Higher Secondary
Education Regulations, 1974)
4 Post Graduate Degree in Professional 05
Courses (As per Regulation 20(1) of
the Gujarat Secondary and Higher
Secondary Education Regulations,
1974)
5 Experience (As per Regulation 20(1) 05
of the Gujarat Secondary Education
Regulations, 1974)
6 Experience as a principal in 03
Registered Private Secondary and
Higher Secondary School (per year
0.5)
Total 40
Page 29 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Appendix – II
See Rules 11(1)(d) & 11(2)
Example of Calculation of 60% weightage of HMAT and
Calculation of 40% Weightage of qualification
(1) Calculation of 60% Weightage of HMAT
If a candidate has secured 175 marks out of 200 marks
in HMAT conducted by the State Examination Board, for
selection he gets 175* 60/200=52.5 marks
(2) Calculation of 40% weightage for the Post of
Principal
For Example
Percentage Marks eligible on
No Qualification Maximum
secured by the basis of
Marks
the percentage
candidate secured by the
candidate
(col.3xcol.4/100)
1 2 3 4 5
1 Graduate Degree
(As per Regulation
20(1) of the 10 50 5
Secondary Gujarat
and Higher
Secondary
Education
Regulations, 1974)
2 Post Graduate
Degree (As per
Regulation 20(1) of 07 60 4.2
the Secondary
Gujarat 07 and
Higher Secondary
Education
Regulations, 1974)
3. Graduate Degree in
Professional
courses (As per 10 50 5
Regulation 20(1) of
the Gujarat
Secondary and
Higher Secondary
Page 30 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Education
Regulations, 1974)
4. Post Degree
Graduate in
Professional 05 60 3
courses (As per
Regulation 20(1) of
the Gujarat
Secondary and
Higher Secondary
Education
Regulations, 1974)
5. Experience, (As per 12 Years
Regulation 20(1) of [(more than
the Gujarat 05 10 Years), 2 1
Secondary Years
Education and Experience
Secondary Higher is Counter
Regulations, 1974) i.e 2 x 0.5)
(per year 0.5
marks)
6. Experience as 3 years
principal Experience 1.5
Registered 03 as Principal
Secondary a in an: 1.5 (i.e 3
Private and Higher x 0.5)
Secondary School
(per year 0.5
marks)
Total 40 —- 19.70
According to above example the merit number shall be
decided of the candidate for the post of Principal
No. Post Marks Marks obtained Total marks
obtained in in accordance for the merit
HMAT i.e. with in inclusion
out of 60% qualification i.e. in select list
out 40%
1 2 3 4 5
1 Principal 52.5 19.70 72.2
————–
Page 31 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
The Teachers in the Registered Private Secondary
and Higher Secondary Minority Schools
(Procedure for Selection) Rules, 2021
3. Constitution of Scrutiny Committee for Minority
Schools. – (1) There shall be constituted a Scrutiny
Committee for Minority Schools to be known as “The
Gujarat State Scrutiny Committee for Recruitment of
Teachers in the Registered Private Secondary and
Higher Secondary Minority School.”
(2) The Scrutiny Committee for Minority Schools shall
consist of the following members, namely:-
Sr.No. Designation
(1) Director of Schools, Gujarat State, Chairman
Gandhinagar
(2) Secretary, Gujarat Secondary and Member
Higher Secondary Education Board, Ex-officio
Gandhinagar
(3) A senior Government Officer, not below Member
the rank of Deputy Secretary, to be
appointed by the Government
(4) Two eminent educationists, to be Member
nominated by the Government
(5) Five representatives from minority Member
School managements to be nominated
by the Government.
(6) The Joint Director of Schools, Gujarat Member
State Gandhinagar Secretary
(3) The headquarters of the Scrutiny Committee for
Minority Schools shall be at Gandhinagar.
4. Eligibility for appointment of Teacher.- To be
eligible for appointment as a Teacher, a candidate shall
possess –
(1) requisite educational qualifications in accordance
with the provisions of the Gujarat Secondary and Higher
Secondary Education Act, 1972 and Gujarat Secondary
and Higher Secondary Education Regulations, 1974
framed thereto and amended from time to time; and
Page 32 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
(2) basic knowledge of computer application as
prescribed in the Gujarat Civil Services Classification
and Recruitment (General) Rules 1967.
5. Selection of Teachers.- The Scrutiny Committee for
Minority Schools shall carry out scrutiny of persons who
have applied for appointment on the posts of Teachers in
the registered private Secondary and Higher Secondary
Minority Schools in accordance with the provisions of
these Rules and provisions of the Gujarat Secondary and
Higher Secondary Education Act, 1972 and Regulations
framed thereunder from time to time.
6. Duties and functions of the Scrutiny Committee
for Minority Schools.-
The Scrutiny Committee for Minority Schools shall –
(1) ascertain from the District Education Officers, the
number of posts of Teachers, for which recruitment is to
be made. However, it shall be incumbent upon the
District Education Officers to send the requisition for
filling up of vacant posts of Teachers to the Scrutiny
Committee for Minority Schools after calling upon the
details of vacant posts of Teachers from management of
the respective minority schools;
(2) invite applications by an advertisement in the widely
circulated Gujarati and English newspapers in the State
of Gujarat;
(3) scrutinize applications received and prepare the
school and subject wise merit list on the basis of
weightage of the marks secured by the candidate in TAT
and educational qualifications in the ratio of 70% and
30%, respectively.
(4) The list of first 15 candidates who are in the merit list
for personal interview as prepared in accordance with
Rule 6 (3) above, shall be sent to the Minority School
Selection Committee for personal interview.
Page 33 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
7. Constitution of Minority School Selection
Committee.- (1) The Minority School Selection
Committee shall consist of the following members,
namely:-
Sr.No. Designation
(1) One of the Trustees nominated by Chairman
the concerned Trust/Management of
the Minority School
(2) An academician outside of the Member
taluka, to be appointed by the
District Education Officer as
suggested by the concerned minority
school Trust/Management
(3) One representative to be nominated Member
by the concerned Minority School
Trust/Management
(4) Principal/in-charge Principal of the Member
concerned minority school
(5) The Education Inspector of the Office Member
of District Education Office of the Secretary
concerned districts
(2) The quorum for the meeting of the Minority School
Selection Committee shall be three (3) members, in
which presence of District Education Inspector
shall be compulsory.
(3) The headquarters of the Minority School Selection
Committee shall be at the office of the concerned
District Education Officer, or any other place as
determined by the Minority School Selection
Committee.
(4) The record of selection procedure shall be
maintained by the office of the Director of Schools,
concerned District Education Officer and the
minority school.
8. Preparation of Requisitions.- (1) The
Trust/Management of minority secondary and higher
secondary school shall send a requisition to the District
Education Officer showing total number of vacancy/ies
Page 34 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
for the post of Teacher/s resulted on account of any
reason whatsoever except in case of retirement within
30 days from occurrence of such vacancies including
the newly created posts. In case of the vacancy/ies likely
to occur in the next academic year due to retirement of
the Teacher/s, the requisition shall be made at least
before six months’ from the date of such retirement.
(2) While calculating the number of vacancies the
number of posts to be filled up by the appointment of
old teacher or Shikshan Sahayak shall be considered.
9. Application for the post of Teacher.- (1) A
candidate who intends to apply for the post of a Teacher
in minority school/s shall submit an application to the
Scrutiny Committee for Minority Schools in such form,
with such fees and within such time limit as may be
specified in the advertisement.
(2) The fees once paid shall not be refunded or held
over for the subsequent selection.
(3) The request for withdrawal of application form and
refund of fees shall not be entertained in any
circumstances.
10. Scrutiny of the Applications.- The application
shall be scrutinized by the Scrutiny Committee for
Minority Schools and the Scrutiny Committee for
Minority Schools may adopt such procedure for such
scrutiny as it deems fit.
11. Preparation of Merit list for Personal
Interview.- (1)(a) The Scrutiny Committee for Minority
Schools shall prepare a merit list for personal interview
on the basis of weightage of 70% marks of the total
marks secured by the concerned candidate in Teachers
Aptitude Test (TAT) to be conducted at least once in a
year by the State Examination Board, Gandhinagar.
(b) The marks secured by the concerned candidate in
TAT shall be valid for five years from the date of the
result of the TAT.
Page 35 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
(c) The candidate who has secured at least 50% marks
in TAT shall only be considered as qualified candidate
for TAT weightage,
(d) Subject to the other provisions of these Rules, a
candidate shall be at liberty to appear in the TAT for
more than one time. However, the score shown in the
certificate which has been produced by the candidate
along with the application shall be considered for
preparation of merit list for personal interview in the
manner as specified in Appendix II;
(2) The weightage of 30% shall be given, out of the
marks secured in the prescribed educational
qualifications for the concerned post (Please see
example in Appendix-II).
(3) The maximum marks for the qualification for the
purpose of weightage of 30% shall be as prescribed in
Appendix I.
(4) The Scrutiny Committee for Minority Schools shall
prepare a school wise and subject wise merit list for
personal interview on the basis of marks secured by the
concerned candidate as provided in sub-rules 1(a) and 2
above.
(5) The Scrutiny Committee for Minority Schools shall
prepare the merit list of unqualified candidates who are
not included in merit list due to non- fulfillment of
qualification criteria prescribed in above Rule 11(1),
11(2) and 11(3) specifying their names, application
numbers and total marks obtained by them.
(6) The Scrutiny Committee for Minority Schools shill
prepare the list of unqualified candidates who are not
included in merit list due to non fulfillment of
qualification criteria prescribed in above Rule 11(1),
11(2) and 11(3) specifying their names, application
numbers and total marks obtained by them.
(7) The Scrutiny Committee for Minority Schools shall
Page 36 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
call the candidate figuring in the merit list for personal
interview to verify the certificates of educational
qualifications, birth date, caste certificate and such
other documents. In case of verification, if the Scrutiny
Committee finds any document/s or/and information
false, fabricated, or concocted, such candidate shall be
disqualified for the appointment of Teacher in
accordance with provisions of Rule 17.
(8) The list of first 15 candidates who are in the nierit
list for personal interview as prepared in accordance
with sub-clauses (4) and (5) above, shall be sent by the
District Education officer to the Minority School
Selection Committee for personal interview.
12. Verification of Documents.- The concerned
District Education Officer shall verify the certificates of
educational qualifications, birth date, caste certificate
and such other documents submitted by the concerned
15 candidates before issuance of call letter to such
candidates for personal interview. In case of
verification, if the District Education Officer finds any
document/s or/and information false, fabricated, or
concocted, such candidate shall not be called for
personal interview for the post of Teacher.
13. Selection Procedure.-(1) Subject to provisions (f
Rule 12 above, the District Education Officer and
Minority School Trust/Management shall jountly issue
the call letter to such candidates, who are in the merit
list as prepared in accordance with Rules, for personal
interview before the Minority School Selection
Committee.
(2) The Minority School Selection Committee shall give
marks to the candidates out of total 10 (ten) marks.
(3) The marks to be given to the candidate by the
Minority School Selection Committee shall be based on
following norms, namely:-
I. The ability of administration of the educational
activities of the school;
Page 37 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
II. The knowledge of concerned subject for which
application is made by the candidate;
III. The ability to bring reform in the quality and
standards of education of the school;
IV. The ability to conduct the extra-curricular activities
of the school to achieve excellence in the education;
V. The methodology to teach the Students;
VI. Past Educational research;
VII. Knowledge of Curriculum reforms.
VIII. General Knowledge,
After considering the marks given to candidates in the
personal interview, the final selection list of not more
than three candidates shall be prepared by the Minority
School Selection Committee and recommended to the
minority school Trust/Management for the appointment.
The Minority School Trust/Management shall issue an
order for appointment to the first candidate out of the
final selection list so prepared. If the first candidate, by
whatever reason, does not join the school to which he is
given appointment then in such a case, rather than
initiating the whole process afresh, the second number
candidate of the final selection list shall be given
appointment order and if under the circumstances, the
second number candidate does not join the school then
the minority school Trust/Management shall consider to
give an appointment to the candidate who is at the third
number position at the final selection list prepared by
the Minority School Selection Committee.
19. Medical Examination:-
A candidate selected for appointment shall submit a
medical certificate of fitness as provided in Regulation
21 of the Gujarat Secondary and Higher Secondary
Education Regulations, 1974.
Page 38 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Appendix – I
See Rule 11(3)
(1) For the post of Higher Secondary Teacher :-
No. Qualification Maximum
Marks
1 Graduate degree in concerned 10
subject.
2 Post Graduate degree in concerned 10
subject.
3 Graduate degree in professional 05
subject i.e. B.Ed./B.P.Ed. etc.
4 Post Graduate degree in 05
professional subject i.e.
M.Ed./M.P.Ed. etc.
Total 30
(2) For the post of Secondary Teacher :-
No. Qualification Maximum
Marks
1 Graduate degree in concerned 10
subject.
2 Post Graduate degree in concerned 10
subject.(if possesses)
3 Graduate degree in professional 05
subject i.e. B.Ed./B.P.Ed. etc.
4 Post Graduate degree in professional 05
subject i.e. M.Ed./M.P.Ed. etc.(if
possesses)
Total 30
(3) For the post of Special Teacher :-
(i) Drawing Teacher :-
No. Qualification Maximum
Marks
1 Graduate degree in Fine Arts (B.F.A.) 30
OR
Page 39 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
1 Diploma in Fine Arts (5 years 30
integrated course)
OR
1 Art Teacher Diploma (A.T.D.) after 30
Higher Secondary School Certificate
(H.S.C.)
OR
1 Drawing Master (D.M.) after Higher 30
Secondary School Certificate (H.S.C.)
(ii) Music Teacher :-
No. Qualification Maximum
Marks
1 H.S.C. 15
2. Graduate degree in music 15
Total 30
(iii) Physical Education Teacher:-
(a) Secondary Teacher :-
No. Qualification Maximum
Marks
1 Graduate in any branch of Arts, 10
commerce and science
2. Post Graduate in any branch of Arts, 10
commerce and science (If possess)
3. Bachelor in professional subject 05
(B.P.Ed./D.P.Ed.)
4. Master's in professional subject 05
(M.P.Ed.) (if possesses)
Total 30
OR
Page 40 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
No. Qualification Maximum
Marks
1 Degree of Bachelor of Physical 10
Education (B.P.E) awarded at the
end of the three or more years
course.
2. Degree of M.P.E. with Degree of 10
Bachelor of Physical Education
(B.P.E) awarded at the end of the five
or more years course (If possesses)
3. Bachelor in professional subject 05
(B.P.Ed./D.P.Ed./B.Ed.)
4. Master's in professional subject 05
(M.P.Ed/M.Ed.) (if possesses)
Total 30
(b) Higher Secondary Teacher :-
No. Qualification Maximum
Marks
1 Graduate in any branch of Arts, 10
commerce and science
2. Post Graduate in any branch of Arts, 10
commerce and science
3. Bachelor in professional subject 05
(B.P.Ed./D.P.Ed.)
4. Master's in professional subject 05
(M.P.Ed.) (if possesses)
Total 30
OR
No. Qualification Maximum
Marks
1 Degree of Bachelor of Physical 10
Education (B.P.E) awarded at the
end of the three or more years
course.
2. Degree of M.P.E. with Degree of 10
Bachelor of Physical Education
(B.P.E) awarded at the end of the five
or more years course.
3. Bachelor in professional subject 05
(B.P.Ed./D.P.Ed./B.Ed.)
Page 41 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
4. Master's in professional subject 05
(M.P.Ed/M.Ed.) (if possesses)
Total 30
(iv) Craft and Industry Teacher:-
No. Qualification Maximum
Marks
1. H.S.C. 10
2. Diploma in Engineering in subject 10
concerned.
3. Graduate degree in Engineering in 10
concerned subject.
Total 30
Appendix - II
See Rule No. 11(1)(d) & 11(2)
Example of Calculation of 70% weightage of TAT and
Calculation of 30% Weightage of qualification
(1) Calculation of 70% Weightage
If a candidate has secured 175 marks out of 200 marks
in TAT conducted by the Board, for selection he gets
175* 70/250=49 marks
(2) Calculation of 30% weightage
(1) For the post of Higher Secondary Teacher:
For Example
Perce Marks eligible
No Qualification Maxim ntage on the basis of
um secur percentage
Mark ed by secured by the
s the candidate
candi (col.3xcol.4/10
date 0)
1 2 3 4 5
1 Graduate Degree in
concerned subject 10 70 7.0
2 Post Graduate Degree
in concerned subjectPage 42 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
10 60 6.0
3. Graduate Degree in
professional subject
i.e. B.Ed/ B.P.Ed. 05 80 4.0
4. Post Degree Graduate
in Professional subject
i.e. M.P.Ed/ M.Ed. etc. 05 60 3.0
Total 30 —- 20(2) For the post of Secondary Teacher:
No. Qualification Maximum Percentag Marks eligible
for e secured on the basis
Example by the of secured by
candidate the candidate
(col.3 x col.
4/100)
1 2 3 4 5
1 Graduate Degree in 10 60 6.0
concerned subject2 Post Graduate 10 80 8.0
Degree in concerned
Subject (if
possesses)
3 Graduate Degree in 05 60 3.0
professional subject
i.e. B.Ed/B.P.Ed. etc.
4 Post Graduate 05 60 3.0
Degree in
professional subject
i.e. M.Ed/ M.P.Ed.
etc. (if possesses)
30 20
For the post of Special Teacher
(i) Drawing Teacher
No. Qualification Maxi For example
mum Percentage Marks eligible
secured by on the basis of
the percentage
candidate secured by the
candidate (col.
3x col.4/100)
1 2 3 4 5
1 Graduate Degree in 30 60 18
Fine Arts (B.F.A.) OR
Page 43 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Diploma in Fine Arts
(Five Years Integrated
course) OR Art Teacher
Diploma after Higher
Secondary School
Certificate (H.S.C.) OR
Drawing Master after
Higher Secondary
School Certificate
(H.S.C.)
Total 30 18
(ii) Music Teacher
No. Qualification Maximum Marks
1 H.S.C. 15
2 Graduate degree in Music 15
Total 30
(iii) Physical Education Teacher:
No. Qualification Maximu For example
m marks Percentage Marks eligible
secured by on the basis of
the percentage
candidate secured by the
candidate
(col.3 x
col.4/100)
1 2 3 4 51 Graduate in any 10 60 6.0
subject related to
Secondary/Higher
Secondary Level
2 Post Graduate in 10 80 8.0
the same subject
as graduation
3 Graduate degree 05 60 3.0
in professional
subject (B.P.Ed./
D.P.Ed)
4 Post Graduate 05 60 3.0
Degree in
professionalPage 44 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
subject (M.P.Ed.)
30 20OR
No. Qualification Maximum For Example
marks
Percentag Marks eligible
e secured on the basis of
by the percentage
candidate secured by the
candidate
(col.3 x
col.4/100)1 2 3 4 5
1 Degree of Bachelor 20 60 12
of Physical
Education (B.P.E.)
awarded at the end
of the three / four
year course of
NCTE accredited
college after
H.S.C.2 Master of Physical 10 70 07
Education (M.P.E./
M.P.Ed.) with
Degree of Bachelor
of Physical
Education (B.P.E.)
awarded at the end
of three/four year
course of NCTE
accredited college
after H.S.C.30 19
(iv) Craft and Industry Teacher:
No. Qualification Maximu For Example
Page 45 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
m Marks Percentage Marks eligible
secured by on the basis of
the the percentage
candidate secured by the
candidate (col.
3 x col.4/100)
1 2 3 4 5
1 H.S.C. 10 70 7.0
2 Diploma in 10 60 6.0
Engineering in
subject concerned
3 Graduate Degree 10 50 5.0
in Engineering in
concerned subject
(if possesses)
30 18.0According to the above example the merit number will
be decided Of the candidate for the post of TeachersNo. Post Marks Marks Total Marks
obtained obtained in for the merit
in TAT i.e. accordance in inclusion in
out of 70% with the select list
qualificatio
n i.e. out of
30%
1 2 3 4 5
1 Higher Secondary 49 20 69
Teacher
2 Secondary 49 20 69
Teacher
3 Special Teacher
(i)Drawing 49 16.5 65.5
Teacher
(ii) Music Teacher 49 18 67
(iii)Physical 49 20 69
Education Teacher
(iv) Craft and 49 20 69
Industry Teacher
13. The petitioners are challenging the validity of the
amended Section 40-A being ultra vires Articles 29 and
30 of the Constitution of India on the ground that with
the application of Sections 17(26), 34(2) and 35 of thePage 46 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Act’ 1972 to the minority institutions and consequent
upon framing of the Rules 2021 for selection of principal
and teachers of recognised aided minority institutions,
there is an invasion into the freedom of choice of
minorities to establish and administer their educational
institutions. The fundamental rights guaranteed under
Articles 29 and 30 of the Constitution have been
infringed as the selection and appointment of teachers
for educational institutions by religious and linguistic
minority management, is one of the essential ingredients
of their right to manage/administer an educational
institution.
14. We are, therefore, required to deliberate on the scope
and rights of the minorities guaranteed under Article 30
of the Constitution to establish and administer
educational institution of their choice.
C. CONSTITUTIONAL PROTECTION
15. At this stage, Articles 29 and 30 of the Constitution of
India are set out for ready reference :-
“29. Protection of interests of minorities.- (1)
Any section of the citizens residing in the territory
of India or any part thereof having a distinct
language, script or culture of its own shall have the
right to conserve the same.
(2) No citizen shall be denied admission into any
educational institution maintained by the State or
receiving aid out of State funds on grounds only of
religion, race, caste, language or any of them.
Page 47 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
30. Right of minorities to establish and
administer educational institutions.- (1) All
minorities, whether based on religion or language,
shall have the right to establish and administer
educational institutions of their choice.
[(1A) In making any law providing for the
compulsory acquisition of any property of an
educational institution established and
administered by a minority referred to in clause
(1), the State shall ensure that the amount fixed by
or determined under such law for the acquisition of
such property is such as would not restrict or
abrogate the right guaranteed under that clause.
(2) The State shall not, in granting aid to
educational institutions, discriminate against any
educational institution on the ground that it is
under the management of a minority, whether
based on religion or language.”
D. Judicial Precedents and the arguments of the
learned Counsels for the petitioners on the
Constitutional Principles under Article 30 :-
16. Mr. Mihir Thakore, learned Senior counsel appearing for
the petitioners has taken us through the concept of the
constitutional protection of the rights of minorities with
the aid of the decisions of the Apex Court beginning
from 1970 onwards; the law laid down wherein is to be
noted hereinunder.
17. The first decision of the Constitution Bench dated
10.08.1970 on a challenge to the vires of certain
provisions of the Kerala Universities Act, 1969 is:-
Page 48 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
The principles stated by the Apex Court therein are :-
(i) Article 30(1) contemplates two rights which
are separated in point of time. The first right is the
initial right to establish institutions of the minority’s
choice. Establishment means bringing into being of
an institution and it must be by a minority community.
The intention is that the institution must be founded
for the benefit of minority community by a member of
that community though people other than minority
community, i.e. of majority community may also be
benefited of these institutions.
(ii) The next part of the right relates to the
administration of such institution. Administration
means ‘management of the affairs’ of the institution.
This management must be free of control so that
founders or their nominees can mould the institution
as they think fit, and in accordance with their ideas as
to how the interests of the community in general and
the institution in particular will be best served. No
part of this management can be taken away and
vested in another body without an encroachment
upon the guaranteed rights.
(iii) There is an exception to the above proposition
and it is that the standards of education are not a part
of the management as such. These standards concern
1
(1970) 2 SCC 417
Page 49 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
the body politic and are dictated by considerations of
advancement of the country and its people.
(iv) The right of the State to regulate education,
educational standards and allied matters cannot be
denied. The minority institutions cannot be allowed
to fall below the standards of excellence expected of
educational institutions or under the guise of
exclusive right of management to decline to follow
the general pattern. While the management must be
left to them, they may be compelled to keep in step
with others.
(v) It was noted therein that in Rev. Father W.
Proost v. State of Bihar2, it was said that the right
need not be enlarged nor whittled down. The
Constitution speaks of administration and that must
fairly be left to the minority institutions and no more.”
(b)Ahmedabad St. Xavier’s College Society v. State
of Gujarat3 :-
The question before the Constitution Bench therein
was as to the scope and ambit of the rights of the
minorities (religious or linguistic) to establish and
administer educational institutions of their choice
under clause (1) of Article 30 of the Constitution of
India; and whether religious or linguistic minorities
have right to establish and administer educational
2
(1969) 2 SCR 73
3
(1974) 1 SCC 717 : AIR 1974 SC 1389 (1)Page 50 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
institutions for imparting general secular education
within the meaning of Article 30 of the Constitution of
India.
After reading Articles 29 and 30 and deliberating on
the scope of Article 30(1), it was observed therein
that :-
(i) Every section of the public, the majority as
well as minority has rights in respect of religion as
contemplated under Articles 25 and 26 and rights in
respect of language, script, culture as contemplated
in Article 29. The whole object of conferring the
right of minorities under Article 30 is to ensure that
there will be equality between the majority and
minority. If the minorities do not have such special
protection, they will be denied equality.
(ii) The right to administer of the religious and
linguistic minorities to their educational institutions
consists of four principles :-
a) The right to choose its managing or governing
body;
b) The right to choose its teachers;
c) The right not to be compelled to refuse
admission to students;
d) The right to use its properties and assets for the
benefit of its own institution.
Page 51 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
(iii) The whole idea of giving rights to choose its
managing or governing body is that the founders of
the minority institutions have faith and confidence in
their own committee or body consisting of persons
selected by them. Similarly, the right to choose its
teachers is conferred with an idea that the minority
institutions want teachers to have compatibility with
the ideals, aims and aspirations of the institution. The
right not to be compelled to refuse admission to
students is recognition of the right of minority
institutions to have right to admit students of their
choice subject to reasonable regulations about
academic qualifications.
(iv) The right conferred on the religious and
linguistic minorities to administer educational
institutions of their choice is, however, not an
absolute right. This right is not free from regulatory
measures which are necessary to be set in place for
maintaining the educational character and content of
minority institutions as also for ensuring orderly,
efficient and sound administration. The statement of
Das, C.J. in Kerala Education Bill4 case was noted
therein that “the right to administer is not the right to
maladminister”.
(v) Justice H.R. Khanna in his separate judgment
speaking for the Bench, has observed in paragraph
’89’ that a liberal, generous and sympathetic approach
4
AIR 1958 SC 956
Page 52 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
is reflected in the Constitution in the matter of
preservation of the right of minorities so far as their
educational institutions are concerned. The Apex
Court has consistently upheld the rights of minorities
embodied in Articles 29 and 30 and has ensured that
the ambit and scope of the minority rights is not
narrowed down. The broad approach has been to see
that nothing is done to impair the rights of the
minorities in the matter of their educational
institutions and that the width and scope of the
provisions of the Constitution dealing with those rights
are not circumscribed.
(vi) Dealing with the scope and ambit of the rights
guaranteed by clause (1) of Article 30, it is said that
the clause confers a right on all minorities, whether
based on religion or language, to establish and
administer educational institutions of their choice.
The right conferred by the clause is in absolute terms
and is not subject to restrictions as in the case of
rights conferred by Article 19 of the Constitution.
However, rights of the minorities to administer
educational institutions does not prevent the making of
reasonable regulations in respect of those institutions.
The regulations have necessarily to be made in the
interest of the institution as a minority educational
institution.
(vii) On the question whether there is any
limitation in the prescription of regulations of minority
Page 53 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
education institutions, it is said that the authority
prescribing the regulations must bear in mind that the
Constitution has guaranteed a fundamental right to
the minorities for establishing and administering their
educational institutions. Regulations made by the
authority concerned should not impinge upon that
right. Balance has, therefore, to be kept between the
two objectives, that of ensuring the standard of
excellence of the institution and that of preserving the
right of the minorities to establish and administer their
educational institutions. Regulations which embrace
and reconcile the two objectives can be said to be
reasonable.
(viii) Much emphasis has been laid by Mr. Mihir
Thakore, learned Senior counsel for the petitioners on
the observation of the Apex Court in paragraph ‘103’
of this judgment to submit that the choice of selection
and appointment of teachers for an educational
institution is one of the essential ingredients of the
right to manage an educational institution and a law
which interferes with the minority’s choice of qualified
teachers or its disciplinary control over teachers and
other members of the staff of the institution is void as
being violative of Article 30(1). It was argued that
though it is permissible for the State and its
educational authorities to prescribe qualifications of
teachers, but once the teachers possessing the
requisite qualifications are selected by the minorities
Page 54 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
for their educational institutions, the State would have
no right to veto the selection of those teachers.
(ix) We may further note from the observations in
paragraph ‘105’ of the judgment penned by Justice
Khanna (supra) that although disciplinary control over
the teachers of a minority educational institution
would be with the governing council, regulations
however, 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.
(x) A question arose therein that although
religious and linguistic minorities have the
fundamental right to establish and administer
educational institutions of their choice, they have no
right, fundamental or otherwise to get recognition or
affiliation for their educational institution established
by them, unless they submit to the regulations made
by the appropriate authority and applicable alike to
educational institutions established and administered
by the majority as well as to those established and
administered by religious and linguistic minorities.
The argument was that Article 30(1) does not confer
any right to recognition or affiliation and that
recognition or affiliation is a privilege which might be
granted or withheld as the legislature might thing fit.
Answering this issue, it was stated in paragraph ‘176’
as under:-
Page 55 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
“176. Recognition or affiliation is granted on the
basis of the excellence of an educational
institution, namely, that it has reached the
educational standard set up by the university.
Recognition or affiliation is sought for the purpose
of enabling the students in an educational
institution to sit for an examination to be
conducted by the university and to obtain a degree
conferred by the university. For that purpose, the
students should have to be coached in such a
manner so as to attain the standard of education
prescribed by the university. Recognition or
affiliation creates an interest in the university to
ensure that the educational institution is
maintained for the purpose intended and any
regulation which will subserve or advance that
purpose will be reasonable and no educational
institution established and administered by a
religious or linguistic minority can claim
recognition or affiliation without submitting to
those regulations. That is the price of recognition
or affiliation: but this does not mean that it should
submit to a regulation stipulating for surrender of
a right or freedom guaranteed by the Constitution,
which is unrelated to the purpose of recognition or
affiliation. In other words, recognition or affiliation
is a facility which the university grants to an
educational institution, for the purpose of enabling
the students there to sit for an examination to be
conducted by the university in the prescribed
subjects and to obtain the degree conferred by the
university, and therefore, it stands to reason to
hold that no regulation which is unrelated to the
purpose can be imposed. If, besides recognition or
affiliation, an educational institution conducted by
a religious minority is granted aid, further
regulations for ensuring that the aid is utilized for
the purpose for which it is granted will be
permissible. The heart of the matter is that no
educational institution established by a religious
or linguistic minority can claim total immunity
from regulations by the legislature or the
Page 56 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
university if it wants affiliation or recognition; but
the character of the permissible regulations must
depend upon their purpose. As we said, such
regulations will be permissible if they are relevant
to the purpose of securing or promoting the object
of recognition or affiliation. There will be border
line cases where it is difficult to decide whether a
regulation really subserves the purpose of
recognition or affiliation. But that does not affect
the question of principle. In every case, when the
reasonableness of a regulation comes up for
consideration before the Court, the question to be
asked and answered is whether the regulation is
calculated to subserve or will in effect subserve
the purpose of recognition or affiliation, namely,
the excellence of the institution as a vehicle for
general secular education to the minority
community and to other persons who resort to it.
The question whether a regulation is in the
general interest of the public has no relevance, if
it does not advance the excellence of the
institution as a vehicle for general secular
education as, exhypothesi, the only permissible
regulations are those which secure the
effectiveness of the purpose of the facility, namely,
the excellence of the educational institutions in
respect of their educational standards. This is the
reason why this Court has time and again said that
the question whether a particular regulation is
calculated to advance the general public interest is
of no consequence if it is not conducive to the
interests of the minority community and those
persons who resort to it.
(xi) In Ahmedabad St. Xavier’s3, the challenge
was to Section 33A(1)(b) of the Gujarat University Act,
1949 providing for the requirement that a
representative of the University nominated by the Vice
Chancellor should be on the selection committee for
recruiting the principal and the head of the department
Page 57 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
besides the representative of the university being on
the selection committee for recruiting members of the
teaching staff, which was held ultra vires. The
observations in paragraph ‘182’ placed before us by the
learned Senior counsel are to be noted hereinunder :-
“182. It is upon the principal and teachers of a
college that the tone and temper of an educational
institution depend. On them would depend its
reputation, the maintenance of discipline and its
efficiency in teaching. The right to choose the
principal and to have the teaching conducted by
teachers appointed by the management after an
overall assessment of their outlook and philosophy
is perhaps the most important facet of the right to
administer an educational institution. We can
perceive no reason why a representative of the
University nominated by the Vice-Chancellor
should be on the Selection Committee for
recruiting the Principal or for the insistence of
head of the department besides the representative
of the University being on the Selection Committee
for recruiting the members of the teaching staff. So
long as the persons chosen have the qualifications
prescribed by the University, the choice must be
left to the management. That is part of the
fundamental right of the minorities to administer
the educational institution established by them.”
(xii) It was vehemently argued by the learned
Senior counsel for the petitioners that if the regulations
framed by the State Government, subject matter of
challenge herein are tested on the anvil of the above
test laid down by the Apex Court in this case of
Ahmedabad St. Xavier’s3, the provisions requiring
the Scrutiny committee comprising of the officers of
the State and the selection committee which includes
Page 58 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
members who are outsiders, in the instant case, are to
be held violative of Article 30(1) of the Constitution.
The composition of the Scrutiny committee and the
School level selection committee for recruitment of
principal and teachers in the minority institutions are
hit by Articles 29 and 30 of the Constitution of India.
(xiii) Much emphasis has been laid on the
observations of the Apex court in Ahmedabad St.
Xavier’s3 that the minorities cannot be asked to barter
away their fundamental right guaranteed under Article
30(1) merely for the fact that the State is providing aid
from public fund to them. Permissible regulations
must depend upon their purpose and the most
significant characteristic of the power to impose a
condition is relevancy of the condition to the
attainment of the objective involved in the grant of the
privilege or benefit. A condition may be invalidated on
the ground that denying a benefit or privilege because
of the exercise of a right in effect penalizes its exercise.
It was submitted that the Apex Court therein has noted
that in considering the question whether the regulation
imposing 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 no recognition or aid.
Such an institution will, of course, be subject to the
Page 59 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
general laws of the land like the law of taxation, 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
institutions. It cannot be said that by these general
laws, the State in any way takes away or abridges the
right guaranteed under article 30(1).
(xiv) A law which may not be a direct restriction on
the right but is designed to accomplish another
objective and the impact upon the right is secondary or
indirect, the question to be asked and answered is
whether the particular measure is regulatory or
whether it crosses the zone of permissible regulation
and enters the forbidden territory of restrictions or
abridgment. It was the view of the Court that
regulations which may lawfully be imposed either by
legislative or executive action as a condition of
receiving grant or of recognition must be directed to
making the institution while retaining its character as a
minority institution, effective as an educational
institution and such regulation must satisfy the dual
test – (a) test of reasonableness, viz. the test that it is
regulative of the educational character of the
institution and (b) is conducive to making the
institution an effective vehicle of education for the
minority community or other persons who resort to it.
(xv) The submission is that the impugned Rules’
Page 60 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
2021 for recruitment of principal and teachers of
secondary education institutions herein, cannot
withstand the aforesaid dual test, inasmuch as, they
cannot be said to be regulative of the educational
character of the institution, rather they amount to
denial of fundamental right of petitioner minorities to
administer the institutions established by them under
the guise of regulating the standards of education.
(c) N. Ammad v. Emjay High School5 :-
The Apex Court therein was concerned as to the
freedom of management of a minority school to choose
and appoint a qualified person as headmaster of the
school. Referring to the majority views of K.K.
Mathew, J. and H.R. Khanna, J. of the Nine Judge’s
Bench in Ahmedabad St. Xavier’s3, it was noted
therein that the selection and appointment of teachers
for an educational institution is one of the essential
ingredients of the right to manage an educational
institution and the minorities can plainly be not denied
such right of selection and appointment without
infringing Article 30(1). The right to choose the
principal and to have the teaching conducted by
teachers appointed by the management after an overall
assessment of their outlook and philosophy is perhaps
the most important facet of the right to administer an
educational institution. The Apex Court observed in
paragraph ’24’ in N.Ammad5 that :-
5
(1998) 6 SCC 674
Page 61 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
“24. If management of the school is not given very
wide freedom to choose the personnel for holding
such a key post, subject of course to the
restrictions regarding qualifications to be
prescribed by the State, the right to administer the
school would get much diminished.”
(d)Board of Secondary Education and Teachers
Training v. Jt. Director of Public Instructions6 :-
The question therein was whether the minority
educational institution is entitled to select a person of
their choice as the principal for the school which is
established and is administered by them. The
decisions in the State of Kerala vs. Very Rev.
Mother Provincial1 and the Ahmedabad St.
Xavier’s3 were followed to hold therein that :-
“3…..The State has undoubtedly the power to
regulate the affairs of the minority educational
institutions also in the interest of discipline and
excellence. But in that process, the aforesaid right
of the management cannot be taken away, even if
the Government is giving hundred per cent grant.
(e) T.M.A. Pai Foundation & Ors. vs. State of
Karnataka & Ors.7 :-
(i) The 11 (Eleven) Judge’s Bench was
constituted to consider the doubt raised by a Bench of
5 (five) Judge’s as to the correctness of the decision of
the Apex Court in St. Stephen’s College vs6
(1998) 8 SCC 555
7
(2002) 8 SCC 481Page 62 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
University Of Delhi8. The question as to the
correctness of the decision of the Apex Court in Unni
Krishnan, J.P. And Ors. Etc. vs State Of Andhra
Pradesh9 that it imposed unreasonable restrictions
on the administration of the private educational
institutions and especially in the case of minority
institutions and the right guaranteed to them under
Article 300(1) stood infringed, was also subject mater
of consideration.
(ii) The Apex Court has addressed the question as
to what extent can the rights of aided private minority
institutions to administer be regulated? Previous
decisions in State of Kerala v. Very Rev.Mother
Provincial1, Ahmedabad St. Xavier’s3 were
considered at length to record in paragraphs ‘116’ to
‘120’ as under :-
“116.While considering the right of the religious
and linguistic minorities to administer their
educational institutions, it was observed by Ray,
C.J., at SCR p. 194, as follows : (SCC pp. 745-46,
para 19)“The right to administer is said to consist of
four principal matters. First is the right to
choose its managing or governing body. It is
said that the founders of the minority
institution have faith and confidence in their
own committee or body consisting of persons
elected by them. Second is the right to choose
its teachers. It is said that minority
institutions want teachers to have
8
(1992) 1 SCC 558
9
(1993) 1 SCC 645Page 63 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
compatibility with the ideals, aims and
aspirations of the institution. Third is the
right not to be compelled to refuse admission
to students. In other words, the minority
institutions want to have the right to admit
students of their choice subject to reasonable
regulations about academic qualifications.
Fourth is the right to use its properties and
assets for the benefit of its own institution.”
117. While considering this right to administer, it
was held that the same was not an absolute right
and that the right was not free from regulation.
While referring to the observations of Das, C.J., in
Kerala Education Bill, 1957 case 4 it was reiterated
in St. Xaviers’ College case3 that the right to
administer was not a right to maladminister.
Elaborating the minority’s right to administer at
SCR p. 196, it was observed as follows : (SCC p.
748, para 30)
“The minority institutions have the right to
administer institutions. This right implies the
obligation and duty of the minority
institutions to render the very best to the
students. In the right of administration,
checks and balances in the shape of
regulatory measures are required to ensure
the appointment of good teachers and their
conditions of service. The right to administer
is to be tempered with regulatory measures to
facilitate smooth administration. The best
administration will reveal no trace or colour
of minority. A minority institution should
shine in exemplary eclecticism in the
administration of the institution. The best
compliment that can be paid to a minority
institution is that it does not rest on or
proclaim its minority character.”
118. Ray, C.J., concluded by observing at SCR p.
200, as follows : (SCC p. 752, paras 46-47)
Page 64 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
“The ultimate goal of a minority institution
too imparting general secular education is
advancement of learning. This Court has
consistently held that it is not only
permissible but also desirable to regulate
everything in educational and academic
matters for achieving excellence and
uniformity in standards of education.
In the field of administration it is not
reasonable to claim that minority institutions
will have complete autonomy. Checks on the
administration may be necessary in order to
ensure that the administration is efficient and
sound and will serve the academic needs of
the institution. The right of a minority to
administer its educational institution involves,
as part of it, a correlative duty of good
administration.”
119. In a concurrent judgment, while noting (at
SCC p. 770, para 73) that “clause (2) of Article 29
forbids the denial of admission to citizens into any
educational institution maintained by the State or
receiving aid out of State funds on grounds only of
religion, race, caste, language or any of them”,
Khanna, J. then examined Article 30, and observed
at SCR p. 222, as follows : (SCC p. 770, para 74)
“74. Clause (1) of Article 30 gives right to all
minorities, whether based on religion or
language, to establish and administer
educational institutions of their choice.
Analysing that clause it would follow that the
right which has been conferred by the clause
is on two types of minorities. Those minorities
may be based either on religion or on
language. The right conferred upon the said
minorities is to establish and administer
educational institutions of their choice. The
word ‘establish’ indicates the right to bring
Page 65 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
into existence, while the right to administer
an institution means the right to effectively
manage and conduct the affairs of the
institution. Administration connotes
management of the affairs of the institution.
The management must be free of control so
that the founders or their nominees can
mould the institution as they think fit and in
accordance with their ideas of how the
interest of the community in general and the
institution in particular will be best served.
The words ‘of their choice’ qualify the
educational institutions and show that the
educational institutions established and
administered by the minorities need not be of
some particular class; the minorities have the
right and freedom to establish and administer
such educational institutions as they choose.
Clause (2) of Article 30 prevents the State
from making discrimination in the matter of
grant of aid to any educational institution on
the ground that the institution is under the
management of a minority, whether based on
religion or language.”
120. Explaining the rationale behind Article 30, it
was observed at SCR p. 224, as follows : (SCC p.
772, para 77)
“77………xxx….xxx….xxx….xxx….xxx….xxx……”
(iii) Referring to the opinion of Justice H.R.
Khanna in Ahmedabad St. Xavier’s3 the principles
stated were noted in paragraphs ‘121’ to ‘123’ that :-
“121. While advocating that provisions of the
Constitution should be construed according to the
liberal, generous and sympathetic approach, and
after considering the principles which could be
discerned by him from the earlier decisions of this
Court, Khanna, J., observed at SCR p. 234, as
follows : (SCC p. 781, para 89)Page 66 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
“89. ……xxx……xxx……xxx………xxx……xxx…..”
122. The learned Judge then observed that the
right of the minorities to administer educational
institutions did not prevent the making of
reasonable regulations in respect of these
institutions. Recognizing that the right to
administer educational institutions could not
include the right to maladminister, it was held that
regulations could be lawfully imposed, for the
receiving of grants and recognition, while
permitting the institution to retain its character as
a minority institution. The regulation “must satisfy
a dual test — the test of reasonableness, and the
test that it is regulative of the educational
character of the institution and is conducive to
making the institution an effective vehicle of
education for the minority community or other
persons who resort to it”. (SCC p. 783, para 92) It
was permissible for the authorities to prescribe
regulations, which must be complied with, before a
minority institution could seek or retain affiliation
and recognition. But it was also stated that the
regulations made by the authority should not
impinge upon the minority character of the
institution. Therefore, a balance has to be kept
between the two objectives — that of ensuring the
standard of excellence of the institution, and that of
preserving the right of the minorities to establish
and administer their educational institutions.
Regulations that embraced and reconciled the two
objectives could be considered to be reasonable.
This, in our view, is the correct approach to the
problem.”
123. After referring to the earlier cases in relation
to the appointment of teachers, it was noted by
Khanna, J., that the conclusion which followed was
that a law which interfered with a minority’s choice
of qualified teachers, or its disciplinary control over
teachers and other members of the staff of the
institution, was void, as it was violative of Article
Page 67 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
30(1). While it was permissible for the State and its
educational authorities to prescribe the
qualifications of teachers, it was held that once the
teachers possessing the requisite qualifications
were selected by the minorities for their
educational institutions, the State would have no
right to veto the selection of those teachers. The
selection and appointment of teachers for an
educational institution was regarded as one of the
essential ingredients under Article 30(1). The
Court’s attention was drawn to the fact that
in Kerala Education Bill, 1957 case 4 this Court had
opined that clauses 11 and 12 made it obligatory
for all aided schools to select teachers from a panel
selected from each district by the Public Service
Commission and that no teacher of an aided school
could be dismissed, removed or reduced in rank
without the previous sanction of the authorized
officer. At SCC p. 792, Khanna, J., observed that in
cases subsequent to the opinion in Kerala
Education Bill, 1957 case4 this Court had held
similar provisions as clause 11 and clause 12 to be
violative of Article 30(1) (sic in the case) of the
minority institutions. He then observed as follows :
(SCC p. 792, para 109)
“The opinion expressed by this Court in Re
Kerala Education Bill, 19574 was of an
advisory character and though great weight
should be attached to it because of its
persuasive value, the said opinion cannot
override the opinion subsequently expressed
by this Court in contested cases. It is the law
declared by this Court in the subsequent
contested cases which would have a binding
effect. The words ‘as at present advised’ as
well as the preceding sentence indicate that
the view expressed by this Court in Re Kerala
Education Bill, 19574 in this respect was
hesitant and tentative and not a final view in
the matter.”
(iv) As stated therein, in paragraph ’92’, the
Page 68 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
rights under Article 30(1) have to be read subject to
the power of the State to regulate education,
educational standards and allied matters. Article
30(1) is a sort of guarantee or assurance to the
linguistic and religious minority institutions of their
right to establish and administer educational
institutions of their choice. The essence of Article
30(1) is to ensure equal treatment between the
majority and the minority institutions. It was held that
laws of the land including rules and regulations must
apply equally to the majority institutions as well as
minority institutions. The minority institutions must
be allowed to do what the non-minority institutions
are permitted to do.
(v)The observations in paragraphs ‘136’ & ‘139’ in this
regard are relevant to be extracted hereunder :-
“136. Decisions of this Court have held that the
right to administer does not include the right to
maladminister. It has also been held that the right
to administer is not absolute, but must be subject
to reasonable regulations for the benefit of the
institutions as the vehicle of education, consistent
with national interest. General laws of the land
applicable to all persons have been held to be
applicable to the minority institutions also — for
example, laws relating to taxation, sanitation,
social welfare, economic regulation, public order
and morality.”
“139. Like any other private unaided institutions,
similar unaided educational institutions
administered by linguistic or religious minorities
are assured maximum autonomy in relationPage 69 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
thereto; e.g. method of recruitment of teachers,
charging of fees and admission of students. They
will have to comply with the conditions of
recognition, which cannot be such as to whittle
down the right under Article 30.”
(vi) In T.M.A. Pai Foundation7 the Apex Court has
also answered the question whether Article 30 gives a
right to ask a grant or aid from the State and that if a
minority institution gets aid, to what extent its
autonomy in administration, specifically in the matter
of admission to the educational institution established
by the community can be curtailed or regulated. While
answering these questions, it was noted that the grant
of aid is not a constitutional imperative. Article 30(1)
would not justify a demand for aid and it cannot be said
that the absence of aid makes the right under Article
30(1) illusory. Article 30(2) only means that a minority
institution shall not be discriminated against where aid
to educational institutions is granted. In other words,
the State cannot, when it chooses to grant aid to
educational institutions, deny aid to a religious or
linguistic minority institution only on the ground that
the management of that institution is with the minority.
It was clarified that if an abject surrender of the right
to management is made as a condition of aid, the denial
of aid would be violative of Article 30(2). However,
conditions of aid that do not involve a surrender of the
substantial right of management would not be
inconsistent with constitutional guarantees, even if
they indirectly impinge upon some facet of
Page 70 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
administration.
(vii) The implication of Article 30(2) is also that it
recognizes that the minority nature of the institution
should continue, notwithstanding the grant of aid. In
other words, when a grant is given to all institutions for
imparting secular education, a minority institution is
also entitled to receive it, subject to the fulfillment of
the requisite criteria and the State gives the grant
knowing that a linguistic or minority educational
institution will also receive the same. It was, thus, held
that though the State cannot be compelled to grant aid,
but the receipt of aid cannot be a reason for altering
the nature or character of the recipient educational
institution. (Reference to be made to Paragraph
Nos.’143′ and ‘144’).
(viii) In T.M.A. Pai Foundation7 it was held that on
receiving aid out of the State fund, Article 28(1) and (3)
became applicable as also Article 29(2), inasmuch as,
the minority institutions receiving aid from the State
fund will not be able to impart religious instructions
and shall have to impart secular education and also
would not be able to deny admission on the grounds of
religion, race, caste, language or any of them, bu0t the
factum of receipt of aid would not result in curtailment
of right of the minority to administer their institutions
and would not result into altering the nature or
character of such educational institutions.
Page 71 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
(ix) We may note that though the Apex court has
drawn a distinction between the minority institutions
receiving aid and educational institutions which are
private unaided minority institutions by applying
Article 29(2) as obligatory to aided minority
institutions, but there is no deviation from the basic
principles stated in the Ahmedabad St. Xavier’s3 that
the minority nature of the institution should continue
and with the grant of aid to the minority institution, the
State cannot have such conditions attached to it, which
will in any way dilute or abridge the rights of the
minority institution to administer that institution. It
was stated by the Apex Court in T.M.A. Pai
Foundation7, that the conditions that can normally be
permitted to be imposed on the educational institutions
receiving the grant must be related to the proper
utilization of the grant and fulfillment of the objectives
of the grant.
(x) Placing the above, it was, thus, argued before us
that the position of law as stated in the Ahmedabad
St. Xavier’s3 that the selection and appointment of
principal and teachers in a minority institutions is one
of the important facet on which the right to administer
the institution is founded, a law which interferes with
the minority’s choice of selection of teachers shall be
violative of Article 30(1) of the Constitution of India. It
was vehemently urged that the statement of law
Page 72 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
therein while holding the provisions of the Gujarat
University Act, subject matter of challenge therein, in
the case of recruitment of the principal and of teachers
of the college by inclusion of the representatives of the
university, nominated by the Vice Chancellor and the
head of the department, would result in impinging the
choice of minorities to administer their institutions
established by them, is a settled position on the
concept of the rights of the minorities under Article 30
of the Constitution.
(f) Secy., Malankara Syrian Catholic College v. T.
Jose10:-
(i) In the said matter, the dispute arose with regard
to the appointment of principal in two aided private
minority institutions affiliated to the Kerala University.
The question arose as to what extent the State can
regulate the rights of the minorities to administer their
educational institutions when such institutions received
aid from the State. The second question was as to
whether the right to choose a principal is part of the
right of minorities under Article 30(1) to establish and
administer educational institutions of their choice.
(ii) The High Court of Kerala, relying on the 11 Judge’s
Bench judgement of the Apex Court in T.M.A. Pai
Foundation7 had held that the receipt of aid by
minority institution removes the protection under
Article 30(1) by taking away its right to claim immunity
10
(2007) 1 SCC 386
Page 73 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
from interference and, therefore, all regulations made
by the State governing the manner of making
appointments and removal, as also the conditions of
service of Principal and lecturers, will be binding on
such aided institutions. The High Court held therein
that aid carries the “price” of surrender of a part of its
freedom and independence in matters of
administration. As a consequence, Section 57(3) of the
Kerala University Act providing that the post of
Principal to be filled by promotion on the seniority-cum-
fitness, was held applicable to the minority
institutions.
(iii) The institutions therein, on the other hand,
contended that the right to appoint principal and
teacher is the most important facet of minorities’ “right
to administer” under Article 30(1) of the Constitution.
The stand was that receipt of aid by minority
institutions does not, in any way, fetter or abridge their
constitutional right to administer educational
institutions and, therefore, Section 57(3) of the Kerala
University Act requiring the appointment of only the
senior-most lecturer as principal was violative of
Article 30(1) of the Constitution.
(iv) On the first question about the extent to which the
State can regulate the right of minorities, the Apex
Court considered the statement of law in Very Rev.
Mother Provincial1 and Ahmedabad St. Xavier’s3, to
lay emphasis on the observation in Very Rev. Mother
Page 74 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Provincial1 that the minority institutions cannot be
allowed to fall below the standards of excellence
expected of educational institutions or under the guise
of exclusive right of management, to decline to follow
the general pattern. While the management must be
left to them, they may be compelled to keep in step
with others. The majority view in Ahmedabad St.
Xavier’s3 was noted to record that the prescription of
conditions of service would attract better and
competent teachers and would not jeopardise the right
of the management of minority institutions to appoint
teachers of their choice.
(v) The Apex Court, entertaining the challenge has,
however, noted therein that the observations made in
paragraphs ’72 and ’73’ of T.M.A. Pai Foundation7
relied by the High Court, were not made with reference
to aided minority educational institutions and the High
Court had misconstrued T.M.A. Pai Foundation7 in
concluding that acceptance of aid by a minority
institution takes away its right to claim immunity from
interference and the State can lay down any regulation
governing the conditions of service of employees of
aided minority institutions ignoring the constitutional
guarantee under Article 30(1). It was clarified by the
Apex Court that the observations in paragraph ’73’ in
T.M.A. Pai Foundation7 were made in the context of
aided non-minority non-professional private
institutions. The position of minority educational
Page 75 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
institutions securing aid from the State or its agencies
was considered in paras ’80 to 155′, wherein it was
clearly held that receipt of State aid does not annihilate
the right guaranteed to minorities to establish and
administer educational institutions of their choice
under Article 30(1).
(vi) The observation in T.M.A. Pai Foundation7 has
been extracted in paragraph ’18’ while laying emphasis
on the following :-
“141…..However, conditions of aid that do not
involve a surrender of the substantial right of
management would not be inconsistent with
constitutional guarantees, even if they indirectly
impinge upon some facet of administration.”
It was clarified that among the questions formulated
and answered by the majority in T.M.A. Pai
Foundation7 while summarising conclusions, question
5(c), which reads as under is in two parts:-
“5. (c) Whether the statutory provisions which
regulate the facets of administration like control
over educational agencies, control over governing
bodies, conditions of affiliation including
recognition/withdrawal thereof, and appointment of
staff, employees, teachers and principals including
their service conditions and regulation of fees, etc.
would interfere with the right of administration of
minorities?”
(vii) The first part of the answer to question
no.5(c) related to unaided minority institutions where
Court has expressed the view that in case of unaided
Page 76 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
minority educational institutions, the regulatory
measure of control should be minimimal; and in the
matter of day to day management like the appointment
of staff (both teaching and non-teaching) and
administrative control over them, the management
should have the freedom and there should not be any
external controlling agency. But such institutions will
have to comply with the conditions of recognition or
affiliation to a board or university; and a rational
procedure for the selection of teaching staff and for
taking the decision will be formulated by the
management itself.
(viii) The second part of answer to question no.
5(c) applicable to aided institutions was extracted
therein, in the following manner:-
“For redressing the grievances of employees of
aided and unaided institutions who are subjected to
punishment or termination from service, a
mechanism will have to be evolved, and in our
opinion, appropriate tribunals could be constituted,
and till then, such tribunals could be presided over
by a judicial officer of the rank of District Judge.
The State or other controlling authorities, however,
can always prescribe the minimum qualification,
experience and other conditions bearing on the
merit of an individual for being appointed as a
teacher or a principal of any educational
institution.
Regulations can be framed governing service
conditions for teaching and other staff for whom
aid is provided by the State, without interferingPage 77 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
with the overall administrative control of the
management over the staff.”
(ix) It was further noted that the position
enunciated in T.M.A. Pai Foundation7 has been
reiterated in P.A. Inamdar v. State of
Maharashtra11 and the general principles relating to
establishment and administration of educational
institutions by minorities may be summarised as
under :-
“19. The general principles relating to
establishment and administration of educational
institution by minorities may be summarised thus:
(i) The right of minorities to establish and
administer educational institutions of their choice
comprises the following rights:
(a) to choose its governing body in whom the
founders of the institution have faith and
confidence to conduct and manage the affairs of
the institution;
(b) to appoint teaching staff (teachers/lecturers and
Headmasters/Principals) as also non-teaching staff,
and to take action if there is dereliction of duty on
the part of any of its employees;
(c) to admit eligible students of their choice and to
set up a reasonable fee structure;
(d) to use its properties and assets for the benefit
of the institution.
(ii) The right conferred on minorities under Article
30 is only to ensure equality with the majority and
not intended to place the minorities in a more
11
(2005) 6 SCC 537Page 78 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
advantageous position vis-à-vis the majority. There
is no reverse discrimination in favour of minorities.
The general laws of the land relating to national
interest, national security, social welfare, public
order, morality, health, sanitation, taxation, etc.
applicable to all, will equally apply to minority
institutions also.
(iii) The right to establish and administer
educational institutions is not absolute. Nor does it
include the right to maladminister. There can be
regulatory measures for ensuring educational
character and standards and maintaining academic
excellence. There can be checks on administration
as are necessary to ensure that the administration
is efficient and sound, so as to serve the academic
needs of the institution. Regulations made by the
State concerning generally the welfare of students
and teachers, regulations laying down eligibility
criteria and qualifications for appointment, as also
conditions of service of employees (both teaching
and non-teaching), regulations to prevent
exploitation or oppression of employees, and
regulations prescribing syllabus and curriculum of
study fall under this category. Such regulations do
not in any manner interfere with the right under
Article 30(1).
(iv) Subject to the eligibility
conditions/qualifications prescribed by the State
being met, the unaided minority educational
institutions will have the freedom to appoint
teachers/lecturers by adopting any rational
procedure of selection.
(v) Extension of aid by the State does not alter the
nature and character of the minority educational
institution. Conditions can be imposed by the State
to ensure proper utilisation of the aid, without
however diluting or abridging the right under
Article 30(1).”
(x) On the aspect of the nature and extent of
Page 79 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
rights of aided minority institutions and permissible
control of State, the statement of law in paragraphs
’20’ and ’21’ is to be noted hereinunder :-
“20. Aided institutions give instruction either in
secular education or professional education.
Religious education is barred in educational
institutions maintained out of the State funds.
These aided educational minority institutions
providing secular education or professional
education should necessarily have standards
comparable with non-minority educational
institutions. Such standards can be attained and
maintained only by having well-qualified
professional teachers. An institution can have the
services of good qualified professional teachers
only if the conditions of service ensure security,
contentment and decent living standards. That is
why the State can regulate the service conditions
of the employees of the minority educational
institutions to ensure quality of education.
Consequently, any law intended to regulate the
service conditions of employees of educational
institutions will apply to minority institutions also,
provided that such law does not interfere with the
overall administrative control of the management
over the staff.
21. We may also recapitulate the extent of
regulation by the State, permissible in respect of
employees of minority educational institutions
receiving aid from the State, as clarified and
crystallised in T.M.A. Pai [(2002) 8 SCC 481] . The
State can prescribe:
(i) the minimum qualifications, experience
and other criteria bearing on merit, for
making appointments,
(ii) the service conditions of employees
without interfering with the overall
administrative control by the managementPage 80 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
over the staff, (iii) a mechanism for redressal
of the grievances of the employees,
(iv) the conditions for the proper utilisation of
the aid by the educational institutions,
without abridging or diluting the right to
establish and administer educational
institutions.
In other words, all laws made by the State to
regulate the administration of educational
institutions and grant of aid will apply to minority
educational institutions also. But if any such
regulations interfere with the overall
administrative control by the management over the
staff, or abridges/dilutes, in any other manner, the
right to establish and administer educational
institutions, such regulations, to that extent, will be
inapplicable to minority institutions.”
(xi) On the question no.2 about the validity of Section
57(3) of the Kerala University Act providing the
requirement for seeking permission for appointment to
the post of principal or headmaster of an educational
institution, it was held that the management is
responsible for the functional efficiency of the
institution as also the quality of education and
discipline in the institution. It is also responsible for
maintaining the philosophy and objects of the
institution.
(xii) Referring to the decisions in the Very Rev.
Mother Provincial1, Ahmedabad St. Xavier’s3, N.
Ammad5, Rt. Rev. Aldo Maria Patroni v. Kesavan 12
and the decision of the Apex Court in Board of
12
1964 SCC OnLine Ker 182
Page 81 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Secondary Education and Teachers Training 6, it
was held in paragraphs ’27’ and ’28 therein to
conclude that Section 57(3) of the Kerala University
Act cannot apply to minority run educational
institution even if they are aided :-
“27. It is thus clear that the freedom to choose the
person to be appointed as Principal has always
been recognised as a vital facet of the right to
administer the educational institution. This has not
been, in any way, diluted or altered by T.M.A. Pai
[(2002) 8 SCC 481] . Having regard to the key role
played by the Principal in the management and
administration of the educational institution, there
can be no doubt that the right to choose the
Principal is an important part of the right of
administration and even if the institution is aided,
there can be no interference with the said right.
The fact that the post of the Principal/Headmaster
is also covered by State aid will make no
difference.
28. The appellant contends that the protection
extended by Article 30(1) cannot be used against a
member of the teaching staff who belongs to the
same minority community. It is contended that a
minority institution cannot ignore the rights of
eligible lecturers belonging to the same
community, senior to the person proposed to be
selected, merely because the institution has the
right to select a Principal of its choice. But this
contention ignores the position that the right of the
minority to select a Principal of its choice is with
reference to the assessment of the person’s outlook
and philosophy and ability to implement its objects.
The management is entitled to appoint the person,
who according to them is most suited to head the
institution, provided he possesses the qualifications
prescribed for the posts. The career advancement
prospects of the teaching staff, even those
belonging to the same community, should have toPage 82 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
yield to the right of the management under Article
30(1) to establish and administer educational
institutions.”
Much emphasis has been laid by Mr. Mihir Thakore,
learned Senior counsel appearing for the petitioners to
the abovenoted proposition of law stated in this
decision that the freedom to choose a person to be
appointed as principal has always been recognised as a
vital facet of the right to administer the educational
institution and this principle has not been, in any way,
diluted or altered in T.M.A. Pai Foundation7.
(g) Sindhi Education Society v. Govt. (NCT of Delhi)13 :-
(i) The challenge before the Apex Court therein was
to the validity of Rule 64 (1) (b) of the Delhi School
Education Act, 1973 and the orders/instructions issued
thereunder to the extent that if they made applicable to
an aided minority educational institution, they violate
the fundamental right guaranteed under Article 30(1)
of the Constitution. The Apex Court has also
proceeded to consider therein that even if the relevant
provisions of the Delhi School Education Act, 1973 are
not unconstitutional, would they still apply with their
rigors to the linguistic minority schools receiving grant-
in-aid from the Government.
(ii) Rule 64 of the Rules under challenge therein was
to primarily deal with the conditions of providing grant-
in-aid and provided that no aid was to be granted
13
(2010) 8 SCC 49
Page 83 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
unless suitable undertaking was given by the managing
committee. The amended Rule 64 brought by the
notification dated 23.02.1990 prescribed certain
limitation which the Competent Authority could impose
in exercise of its powers. Even before amendment of
the said Rule on 12.03.1985, instructions were issued
by the Deputy Director of Education addressed to the
appellant institution therein stating, inter alia that in
accordance with the provision of Rule 64 of the DSE
Rules, the Managing Committee of the Society was
required to furnish an undertaking that they would
make reservation in the appointments of teachers for
the Scheduled Castes and Scheduled Tribes. The
reference was also made therein to the instructions
issued by the Department of Personnel, Government of
India, wherein reservation for the Scheduled
Castes and Scheduled Tribes in the
institutions/organisations were ordered. The letter
stated that future grants-in-aid shall be released on
giving the aforesaid undertaking on the enclosed
proforma.
(iii) On receipt of the response of the appellant Society,
the Secretary (Education) Government of NCT of Delhi
vide communication dated 21.03.1986 informed that
the requirement of undertaking was not applicable to
the minority institutions and as such, the management
of the institutions were at the discretion to adhere or
not to adhere to the instructions issued by the
Page 84 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Government of India regarding the reservation of
SC/ST.
(iv) Inspite of the aforesaid communication, the
appellant society therein received another
communication from the authorities in September
1989, addressed to all the schools that appointment of
the Scheduled Castes and Scheduled Tribes candidates
was a precondition for all the agencies receiving grant-
in-aid from the Government and while referring to Rule
64 of the DSE Rules and its amendment, they were
required by the authorities to comply with this
condition.
(v) In the light of the above noted facts, dispute arose
before the High Court about the correctness of the
action of the State authorities in reiterating the
requirements of Rule 64(1)(b) asking for the
undertaking by the institutions as a pre-condition of
grant-in-aid from the Government. The matter went to
the Apex Court on the grant of certificate of leave to
appeal by the Division Bench of the High Court of Delhi
while it was held by the High Court that Rule 64(1)(b)
does not infringe any right of the minority institution
and the implementation of the roster of reservation was
in consonance with the stated principles in the case of
Kerala Education Bill, 19574, and the fundamental
rights of minority institutions are not infringed. In this
context of the dispute before the Apex Court, it was
held in paragraphs ’79’ to ’85’ as under:-
Page 85 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
“79. As is evident from the above-narrated
principles, the Government does not enjoy identical
control over the management of the schools
belonging to the minority and/or majority schools.
In view of the above ground reality and amendment
in law, Article 30(2) provides a definite protection
to the minority institutions that they would not be
discriminated against for providing of grant-in-aid.
This aspect is further dealt with some clarity in
Chapter VI relating to grant-in-aid under the
provisions of the DSE Rules, 1973.
80. In terms of Rule 60, every aided school will
continue to get the aid subject to the provisions of
the DSE Rules. Rule 64 of the DSE Rules
contemplates that aid is to be given upon
furnishing of suitable undertaking by the managing
committee. The grant-in-aid, then, would be given
only upon satisfaction of the conditions stipulated
in Rule 65.
81. Second proviso to Rule 10 requires
that wherever a linguistic minority school decides
to impart education in a language other than the
language of such linguistic minority, in that event
the Administrator shall not be under any obligation
to give grant-in-aid to such schools. In other words,
a school run by linguistic minority would be
entitled to receive grant-in-aid if it is imparting
education in the language of the minority, of
course, by satisfying other stated conditions. The
right to receive grant thus has to be accepted as a
legitimate right in contradistinction or opposed to
legal right to get recognition including the case of
a minority institution. This principle has been
reiterated by this Court in a catena of judgments
including the judgments referred by us above.
Page 86 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
82. The logical impact of Article 30(2) read with
the provisions of the DSE Act and the Rules framed
thereunder is that, to receive grant-in-aid is a
legitimate right of a school subject to satisfying the
requirements of law. Article 30(2) thus, has been
worded in a negative language not permitting the
State to discriminate the minority institution in
relation to the matters of grant-in-aid.
83. Article 15(5) of the Constitution excludes the
minority educational institutions from the power of
the State to make any provision by law for the
advancement of any socially or educationally
backward classes of the citizens or for Scheduled
Castes and Scheduled Tribes in relation to their
admission to educational institutions including
private educational institutions whether aided or
unaided. This article is capable of very wide
interpretation and vests the State with power of
wide magnitude to achieve the purpose stated in
the article. But, the framers of the Constitution
have specifically excluded minority educational
institutions from the operation of this clause.
84. Article 16 which ensures equality of
opportunity in matters of public employment again
has been worded so as to prohibit discrimination
and, at the same time, vests the State with power
to make provisions, laws and reservations in
relation to a particular class or classes of persons.
It is of some significance to notice that power of
the State to exercise such power is in relation to
the “service under the State”. This expression has
been used in all the clauses of the article which
relate to providing of employment and framing of
laws/reservations in those categories. Upon its true
construction, this expression itself is capable of a
Page 87 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
wide construction and must be construed liberally
and cannot be restricted to its narrow sense.
85. The expression “service under the State” would
obviously include service directly under the State
Government or its instrumentalities and/or even
the sectors which can be termed as State within
the meaning of Article 12 of the Constitution. Once
an organisation or society falls outside the ambit of
this circumference, in that event, it will be difficult
for the courts to hold that the State has a right to
frame such laws or provisions or make reservations
in the field of employment for those societies.”
(vi) Placing the above-noted observations of the Apex
Court in Sindhi Education Society13, it was
vehemently argued by the learned senior counsel for
the petitioners that the minority schools or institutions
which are receiving grant in aid from the Government
by merely receiving grant-in-aid per se would not
become “State” within the meaning of Article 12 of the
Constitution of India. Article 15(5) specifically excludes
minority educational institutions from operation of this
clause and Article 16 which ensures equality of
opportunity in matter of public employment in relation
to the `service under the State’ is not attracted in case
of a minority institution whether aided or not. It was
argued that the expression ‘service under the State’ in
Article 16 would include service directly under the
State Government or its instrumentalities and/or even
the sectors which can be termed as a ‘State’ within the
meaning of Article 12 of the Constitution as settled by
the Apex Court in the case of Ajay Hasia v. Khalid
Page 88 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Mujib Sehravardi14. The test as spelt out therein
would not be applicable in the case of a minority
institution. The State, therefore, cannot exercise
control over a minority institution which is otherwise
entitled to the protection under Article 30(1) of the
Constitution.
(vii)It was argued that the Apex Court has categorically
held therein that the service in aided linguistic minority
school cannot be constructed as ‘service under the
State’ even with the aid of Article 12 of the Constitution
and linguistic minority which has constitution and
character of its own, is entitled to the protection and
right of equality enshrined in the Constitution. The
observations in paragraphs ’63’ and ’64’ of the said
decision has been placed before us to emphasize that
the Apex Court has recognised the right to appoint
persons who are better culturally and linguistically
compatible to the institution as an inbuilt right. The
power vested in the State to frame regulations must
operate within its limitation while ensuring when it
does not, in any way, dilute or impairs the basic
character of linguistic minority (religious or linguistic)
and that the right of minority to establish and
administer has to be construed liberally to bring it in
alignment with the constitutional protections available
to such minorities.
(viii) It was, thus, argued that the position of law as
14
(1981) 1 SCC 722
Page 89 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
stated in T.M.A. Pai Foundation7, with regard to
aided minority institutions, has been restated and
reaffirmed by the Apex Court with the clarification
again and again emphasizing the law stated in the Very
Rev.Mother Provincial1 and Ahmedabad St.
Xavier’s3. The consistent view of the Apex Court
throughout has been that the choice to appoint
principal or teaching staff, who possess the eligibility
and qualifications as provided, has to be left at the
discretion of the management of the minority
institutions. Any amount of interference with their
right to choose teachers would be impermissible in law
as it may dilute their character of religious and
linguistic minority, which, in fact, would diminish the
very essence of their character or status. The
linguistic and cultural compatibility can be legitimately
claimed as one of the desirable features of a linguistic
minority in relation to selection of eligible and qualified
teachers. It was vehemently argued that the Apex
Court in Sindhi Education Society13 has clearly held
that the provision of law which would be enforced
against the general class cannot be made enforceable
with the same rigours against the minority institutions,
both in relation to their choice of their managing
committee as well as their right to choose the teachers.
(h) Chandana Das (Malakar) v. State of W.B.15
(i) In the said decision, a question arose as to the
15
(2020) 13 SCC 411
Page 90 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
status of the institution therein as a linguistic minority
institution and the applicability of the rule framed
under the West Bengal Board of Secondary Act qua
appointment of teachers. Rule 28 which was sought to
be applied to the linguistic minority institutions therein
provided that in an aided institution, the committee
constituted under the rules shall have the power to
appoint on the recommendation of the West Bengal
Regional School Service Commission in respect of
region concerned, teachers on permanent or temporary
basis against permanent or temporary vacancies, on
the approval by the Director or any officer authorised
by him. Rule 33 of the Rules, however, provided that
nothing in the Rules shall affect the power of the State
Government to frame, on the application of any
institution or class of institution to which the provisions
of Articles 26 or Article 30 of the Constitution of India
may apply, further or other rules for the composition,
powers, functions of the managing committee or
committee of such institution or class of institutions.
These Rules have been amended by 2008 amendment
whereby rule 33 had been omitted altogether. It was
also an admitted fact that prior to the amendment, no
such rules had been framed by the State under Rule 33.
(ii) The dispute, however, was pertaining to the letter
from the Secretary, West Bengal Board of Secondary
Education intimating providing for a special
constitution of the managing committee of the school.
Page 91 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
The issue was whether by acceptance of the said letter,
the managing committee of the minority institutions, in
any manner, unequivocally waived its right to be
treated as minority institution. There was no dispute
about the fact that in the State of West Bengal it was a
linguistic minority and the institution in question was
set up by them.
(iii) In the context of the said dispute, the Apex Court
has considered the historical reasons for enacting
Article 30(1) as discussed in Kesavananda Bharati v.
State of Kerala16, and noted from the judgment drawn
by Khanna, J., in Ahmedabad St. Xavier’s3, reiterated
in the concurring Judgement of Quadri, J. in T.M.A.
Pai Foundation7, in paragraphs ’20’ to ’22’ as under :-
“20. The historical reasons for enacting Article 30(1)
have been set out in some detail in the judgment of
Shelat, J. and Grover, J. in Kesavananda Bharati 18 as
follows : (SCC p. 429, para 535-A)“535-A. It may be recalled that as regards the
minorities the Cabinet Mission had recognised in
their report to the British Cabinet on 6-5-1946, only
three main communities : general, Muslims and
Sikhs. General community included all those who
were non-Muslims or non-Sikhs. The Mission had
recommended an Advisory Committee to be set up
by the Constituent Assembly which was to frame
the rights of citizens, minorities, tribals and
excluded areas. The Cabinet Mission statement had
actually provided for the cession of sovereignty to
the Indian people subject only to two matters
which were : (1) willingness to conclude a treaty
with His Majesty’s Government to cover matters
16
(1973) 4 SCC 225Page 92 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
arising out of transfer of power, and (2) adequate
provisions for the protection of the minorities.
Pursuant to the above and Paras 5 and 6 of the
Objectives Resolution the Constituent Assembly set
up an Advisory Committee on 24-1-1947. The
Committee was to consist of representatives of
Muslims, the depressed classes or the Scheduled
Castes, the Sikhs, Christians, Parsis, Anglo-Indians,
tribals and excluded areas besides the Hindus
[Constituent Assembly Debates, Vol. 2, pp. 330-
349.] . As a historical fact it is safe to say that at a
meeting held on 11-5-1949 a resolution for the
abolition of all reservations for minorities other
than the Scheduled Castes found whole-hearted
support from an overwhelming majority of the
members of the Advisory Committee. So far as the
Scheduled Castes were concerned it was felt that
their peculiar position would necessitate special
reservation for them for a period of ten years. It
would not be wrong to say that the separate
representation of minorities which had been the
feature of the previous Constitutions and which
had witnessed so much of communal tension and
strife was given up in favour of joint electorates in
consideration of the guarantee of fundamental
rights and minorities’ rights which it was decided
to incorporate into the new Constitution.”
(emphasis supplied)
“21. This was further flashed out in the judgment of
Khanna, J. in Ahmedabad St. Xavier’s 3 as follows :
(SCC pp. 770-71 & 781, paras 75 & 89)
“75. Before we deal with the contentions advanced
before us and the scope and ambit of Article 30 of
the Constitution, it may be pertinent to refer to the
historical background. India is the second-most
populous country of the world. The people
inhabiting this vast land profess different religions
and speak different languages. Despite the
diversity of religion and language, there runs
through the fabric of the nation the golden thread
of a basic innate unity. It is a mosaic of differentPage 93 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
religions, languages and cultures. Each of them has
made a mark on the Indian polity and India today
represents a synthesis of them all. The closing
years of the British rule were marked by communal
riots and dissensions. There was also a feeling of
distrust and the demand was made by a section of
the Muslims for a separate homeland. This
ultimately resulted in the partition of the country.
Those who led the fight for independence in India
always laid great stress on communal amity and
accord. They wanted the establishment of a secular
State wherein people belonging to the different
religions should all have a feeling of equality and
non-discrimination. Demand had also been made
before the partition by sections of people belonging
to the minorities for reservation of seats and
separate electorates. In order to bring about
integration and fusion of the different sections of
the population, the framers of the Constitution did
away with separate electorates and introduced the
system of joint electorates, so that every candidate
in an election should have to look for support of all
sections of the citizens. Special safeguards were
guaranteed for the minorities and they were made
a part of the fundamental rights with a view to
instil a sense of confidence and security in the
minorities. Those provisions were a kind of a
Charter of rights for the minorities so that none
might have the feeling that any section of the
population consisted of first-class citizens and the
others of second-class citizens. The result was that
minorities gave up their claims for reservation of
seats. …
* * *
89. ………xxx……….xxx…………..xxx……………xxx…….
..xxx………….xxx………..xxx……………xxx………..xxx….
The minorities are as much children of the soil as
the majority and the approach has been to ensure
that nothing should be done as might deprive the
Page 94 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
minorities of a sense of belonging, of a feeling of
security, of a consciousness of equality and of the
awareness that the conservation of their religion,
culture, language and script as also the protection
of their educational institutions is a fundamental
right enshrined in the Constitution. The same
generous, liberal and sympathetic approach should
weigh with the courts in construing Articles 29 and
30 as marked the deliberations of the Constitution-
makers in drafting those articles and making them
part of the fundamental rights. The safeguarding of
the interest of the minorities amongst sections of
population is as important as the protection of the
interest amongst individuals of persons who are
below the age of majority or are otherwise
suffering from some kind of infirmity. The
Constitution and the laws made by civilised
nations, therefore, generally contain provisions for
the protection of those interests. It can, indeed, be
said to be an index of the level of civilisation and
catholicity of a nation as to how far their minorities
feel secure and are not subject to any
discrimination or suppression.”
(emphasis supplied)
22. This was reiterated in the concurring judgment of
Quadri, J. in T.M.A. Pai Foundation 7 as follows : (SCC
p. 640, para 301)
“301. … The Founding Fathers of the Constitution
were alive to the ground realities and the existing
inequalities in various sections of the society for
historical or other reasons and provided for
protective discrimination in the Constitution with
regard to women, children, socially and
educationally backward classes of citizens,
Scheduled Castes and Scheduled Tribes by
enabling the State to make special provision for
them by way of reservation as is evident from
clauses (3) and (4) of Article 15 and clauses (4)
and (4-A) of Article 16 of the Constitution. The
apprehensions of religious minorities and their
demand for separate electorates, were settled by
Page 95 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
providing freedom of conscience and free
profession, practise and propagation of religion
for all the citizens under Articles 25, 26 and 28
which take care of the religious rights of
minorities equally; by special provisions their
right to conserve a distinct language, script or
culture is guaranteed as a fundamental right in
Article 29; further, all minorities, whether based
on religion or language, are conferred an
additional fundamental right to establish and
administer educational institutions of their choice
as enshrined in Article 30 of the Constitution. The
right under Article 30(1) is regarded so
sacrosanct by Parliament in its constituent
capacity that when by operation of the law of the
land — Land Acquisition Act — compensation
awarded for acquisition of a minority educational
institution was to result in restricting or
abrogating the right guaranteed under clause (1)
of Article 30, it by the Constitution (Forty-fourth)
Amendment Act inserted clause (1-A) in Article
30. It provides that Parliament in the case of a
Central legislation or a State Legislature in the
case of State legislation shall make a specific law
to ensure that the amount payable to the minority
educational institutions for the acquisition of their
property will not be such as will in any manner
impair their functioning. A Constitution Bench of
this Court in interpreting clause (1-A) of Article
30 in Society of St. Joseph’s College v. Union of
India17, observed thus : (SCC p. 278, para 7)
‘7. Plainly, Parliament in its constituent
capacity apprehended that minority
educational institutions could be compelled
to close down or curtail their activities by
the expedient of acquiring their property
and paying them inadequate amounts in
exchange. To obviate the violation of the
right conferred by Article 30 in this manner,
Parliament introduced the safeguard
provision in the Constitution, first in Article
17
(2002) 1 SCC 273
Page 96 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
31 and then in Article 30.'”
(iv) Placing reliance on the observations in paragraphs
“23” to “27” of this decision (in Chandana Das15), it
was vehemently argued by Mr. Mihir Thakore, learned
senior counsel for the petitioners that the majority view
of the 9 judges Bench in Ahmedabad St. Xavier’s3 in
holding that the right to administer includes right of
minority institutions to choose its teachers and any
provision taking away a minority’s choice of qualified
teachers or its disciplinary control over the teachers
and other members of the staff of the institution would
be violative of Article 30(1) of the Constitution,
inasmuch as, right to choose its teachers is at the core
of the fundamental right to Article 30 – the right to
administer, has been recited with approval. The
relevant observations in paragraphs ’24’ to ’27’ placed
before us to substantiate the said point are noted
hereinunder :-
“24. Ray, C.J. adverted to the aforesaid provision
and stated that at the core of the fundamental right
of Article 30 is the right to administer which
includes the right of the minority institutions to
choose its teachers (see SCC pp. 745-48, paras 18-
19 & 27-30 : SCR pp. 194 and 196). Having held
this, the learned Chief Justice set out the argument
of the intervenors thus : [Ahmedabad St. Xavier’s3],
SCC p. 751, para 42)“42. ….xxx………xxx…………xxx………..xxx………….
25. This view was concurred in by Khanna, J. as
follows : [Ahmedabad St. Xavier’s3], SCC p. 789, paraPage 97 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
103)
“103. …….xxx…..xxx……..xxx……….xxx……xxx……”
26. Likewise, Jagan Mohan Reddy, J. also held
Section 33-A(1)(b) inapplicable to minority
institutions. The concurring judgment of Mathew, J.
and Chandrachud, J. agreed with the learned Chief
Justice that the aforesaid provision could not possibly
apply to a minority institution as follows : (St. Xavier
case3, SCC pp. 815-16, para 182)
“182. …….xxx…..xxx……..xxx……….xxx……xxx…..”
27. A reading of the aforesaid judgment would leave
no manner of doubt that if Respondent 4 is a minority
institution, Rule 28 of the Rules for Management of
Recognised Non-Government Institutions (Aided and
Unaided) 1969, cannot possibly apply as there would
be a serious infraction of the right of Respondent 4 to
administer the institution with teachers of its choice.”
(i) The last judgment which was placed before us for
consideration by the learned senior counsel is S.K.
Mohd. Rafique v. Contai Rahamania High
Madrasah18.
(i) While placing the said decision, it was argued by
Mr. Mihir Thakore, the learned Senior counsel that
the deviation in the said decision about the statement
of law reiterated from time to time in the previous
judgments of the Apex Court noted herein above, was
on a wrong notion that in two earlier decisions, viz.
18
(2020) 6 SCC 689
Page 98 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Secy., Malankara Syrian Catholic College 10 and
Sindhi Education Society13 of the Apex Court, the
dispute was pertaining to selection and appointment
of Principal and teachers of unaided minority
educational institutions. Placing paragraphs ‘44.3’
and ‘44.4’ of the judgment in S.K. Mohd. Rafique18,
it was vehemently argued by the learned Senior
counsel that the principle of law stated in the
aforesaid two decisions, viz. Secy., Malankara
Syrian Catholic College10 and Sindhi Education
Society13 was appreciated by the Apex Court on a
wrong premise that the statement of law therein was
pertaining to unaided minority institutions. The
consistent view of the Apex Court about the right of
minority to choose principal and teachers being the
core of right to administer beginning from
Ahmedabad St. Xavier’s3 has been upheld from time
to time and the said position of law has not been
diluted even in TMA Pai Foundation7, which
approved the twin test laid down by Khanna, J. in
Ahmedabad St. Xavier’s3 that a balance be kept
between two objectives – one to ensure the standard
of excellence of institution and the other observing
the right of minorities to establish and administer
their educational institutions.
(ii) The submission is that the view taken by the
Apex Court in S.K. Mohd. Rafique18 with respect to
the right of minority to appoint teachers in terms of
Page 99 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
the law laid down in TMA Pai Foundation7 in no way
affect the rights of the minority to select and appoint
the teacher of their choice, so long as the selection is
made of persons with minimum requisite
qualifications.
(i) Summary of the arguments of Mr. Mihir Thakore,
the learned senior advocate for the petitioners :-
(iii) It was then argued that in the name of
excellence of education, it is not permissible to the
State to provide such regulatory measures which
interfere with the choice of minority institutions to
select the teachers who believe in the religious
ideology or the special characteristics of the
concerned minority which would alone be able to
imbibe in the students admitted in such educational
institutions, what the minorities would like to
preserve, profess and propagate. It was vehemently
argued that as per the law stated by the Apex Court,
maximum latitude shall have to be given to the
management of the concerned minority institutions as
they would normally be considered to be the best
judges of what would help them in protecting and
preserving the heritage, culture, script or such special
features or characteristics of the concerned
minorities. It was argued that even if subjects in the
curriculum in aided minority institutions are purely
secular in nature, linguistic and cultural compatibility
can be legitimately claimed as one of the desirablePage 100 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
features of a linguistic minority in relation to selection
of eligible and qualified teachers.
(iv) It was submitted that the said view has been
stated with affirmation by the Apex Court in Sindhi
Education Society13 where the dispute was with
regard to the applicability of a rule of the Delhi School
Education Rules, 1973 in the matter of selection of
teachers to an aided minority educational institution.
It was a linguistic minority institution and the Apex
Court has categorically stated therein that the
minority institutions who have faith and confidence in
their committee or body consisting of persons
selected by them should be given a right to choose
their teachers. It was submitted that the only
leverage for the State is to provide regulations which
prevents maladministration.
(v)Regulatory measures are necessary for maintaining
the educational character and content of minority
institutions, which are necessary for ensuring orderly,
efficient and sound administration. However, every
linguistic minority may have its own socio economic
cultural limitations. It is their constitutional right to
conserve such culture and language and, thus, they
would have a right to choose teachers who possess
the eligibility and qualifications, as provided, without
really being impressed by the fact of their religion and
community. Its own limitations may not permit, for
cultural, economic or other good reasons, to induct
Page 101 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
teachers from a particular class or community. The
regulations though could be enforced against the
general or majority category of the government-aided
schools, but it may not be appropriate to enforce such
condition against linguistic minority schools. This
may amount to interference to the right of their
choice and, at the same time, may dilute their
character of linguistic minority. It would be
impermissible in law to bring such actions under the
cover of equality which, in fact, would diminish the
very essence of their character or status.
(vi) By placing the above noted observations of
the Apex Court in Sindhi Education Society13, it
was vehemently argued by the learned Senior counsel
appearing for the petitioners that the statement of
law in S.K. Mohd. Rafique18 is on a wrong premise
as noted in paragraph ‘44.4’ that the issue whether
the instructions could be issued to fill up the post of
teachers in Sindhi Education Society13 was with
respect to an unaided minority institution.
(vii) The learned Senior counsel, thus, vehemently
argued that in view of the statement of law restated
and reaffirmed as laid down by the Apex Court
beginning from Ahmedabad St. Xavier’s3,
Chandana Das (Malankar)15, there is consistency in
the view that any law made by the state which
interferes in the right of the minority institutions to
choose principal and teaching staff for their
Page 102 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
institution would be violative of Article 30(1) of the
Constitution, inasmuch as, the exception providing
power to regulate by the State for excellence of
education would not be attracted in the case of
selection of principal/teacher or teaching of a minority
institution. It was, thus, submitted that TMA Pai
Foundation7 has not overruled Ahmedabad St.
Xavier’s3 and Very Rev. Mother Provincial1 and it
was a decision rendered in the matter of admission of
students in aided minority providing professional
education. S.K. Mohd. Rafique’s18 case cannot be
read in any manner overriding Ahmedabad St.
Xavier’s3 or any subsequent judgment of the Apex
Court on the issue.
18. With these contention, it was vehemently argued that in
the instant case, the amendment of Section 40A inserted
by Gujarat Act No.25 of 1973 with effect from
08.11.1973 which exempted minority institutions from
various provisions such as Sections 17(26), 34(2) &
Section 35 by Gujarat Amendment Act No. 16 of 2021,
resulting in applying the exempted provisions of the Act,
1972 to the minority institutions is in breach of Article
30(1) of the Constitution. The amended Section 40-A
brought into force with effect from 23.03.2021 whereby
the Gujarat Secondary Education Board constituted
under the Act, 1972 and the State Government have
been empowered to lay down procedure of appointment
and termination of teaching and non-teaching staff of
Page 103 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
minority institutions, cannot be said to be compliant of
Article 30(1) of the Constitution of India.
19. It is submitted that the Act no.16 of 2021 brought into
force on 23.03.2021 has been enacted with the
Statement and objects and reasons to substitute original
Section 40-A referring to the judgment of the Apex
Court in TMA Pai Foundation7 stating that the
regulations can be framed governing service conditions
for teaching and other staff of minority education
institution where the aid is provided by the State without
interfering with the overall control over the management
of the staff. The submission is that this Statement of
Object and Reasons for bringing amendments in the year
2021 on the principles of law stated by the Apex Court in
the decision rendered in the year 2002, is nothing but a
misnomer and is an effort to cover-up the issue where
the State Government is bent upon to destroy the
minority character of the educational institutions in the
State of Gujarat. It was vehemently argued that the
Statement of Objects and reasons if read and understood
carefully, would convey the intention of the State
Government in providing regulations to control minority
institutions on a wrong premise that by providing aid, it
can frame regulations to govern the selection process of
teaching and non-teaching staffs of minority educational
institutions.
20. It was argued that in the fact situation of the present
case, the nature of the impugned provisions
Page 104 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
demonstrates the effort of the State Government to
control the process of selection and appointment of
principal and teachers in the minority educational
institutions by way of regulations framed under Section
35 of the Act 1972, which itself results in making the
entire amended Section 40-A of the Act’ 1972, and
Regulations 2021 framed under Section 35 of the Act’
1972 by the State Government, as being void, being
violative of Article 30(1) of the Constitution of India. A
Writ to declare the same accordingly be issued while
allowing the present Bunch of Writ petitions.
(ii) Summary of the arguments of Mr. Shalin N. Mehta,
the learned senior advocate for the petitioners :-
21. Mr.Shalin N. Mehta, learned Senior counsel referring to
the status of the petitioner in Writ petition No. 8896 of
2021 would submit that the petitioner institution therein
is a linguistic minority being a Hindi Medium School as
per the notification of the State Government. The Rules
framed by the State Government in exercise of the
powers under Section 35 of the Act’ 1972 provided for
inclusion of outsiders in the Scrutiny Committee and
minority school selection committee, as per Rules 3 and
7 of the Selection Rules 2021 for Principal and teachers
both. The constitution of Scrutiny Committee for
Minority school as provided in Rule 3 has been placed
before us to assert that out of total 11 members of the
scrutiny committee, only 5 are insiders, that too they are
to be nominated by the State Government. Remaining
six members of the Scrutiny Committee are officials ofPage 105 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
the State Government and the Chairman is the Director
of Schools, State of Gujarat. This provision of Scrutiny
Committee in the selection rules per se is a proof of
interference of the State Government in the rights of
minority to choose teachers for their institutions.
22. It was argued that the stand of the petitioners is not that
the State Government cannot frame Rules, if it wants to
maintain the standards of education. However, there
will be less restrictive alternatives by which same results
may be achieved. The requirement of qualification,
experience, aptitude test, manner of appointment has
been laid down by the State Government, but providing
constitution of selection committee who will make the
selection, results in undue interference in the day-to-day
affairs of the minority institution. Reasonableness test is
to be cleared to save the selection rules. Rule 13 of the
Rules, 2021 provides selection procedure which leaves a
very limited choice to the minority schools to select
teachers from the pool of eligible candidates. Instead of
prescribing that only candidate placed at Sr. No.1 in the
final select list shall be issued appointment letter by the
minority school trust/management, liberty should have
been reserved with the management to choose a better
candidate, who may not be at Sr. No.1 in the select list
but better suited to the minority character of the
institution. Disqualification of candidates from selection
by taking disciplinary action by the Scrutiny committee
constituted under Rule 3, as provided in Rule 17, is a
glaring example of interference in the selection processPage 106 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
for the principal and teachers in a minority school. The
provisions of Rules 20 and 21 providing for procedure of
selection to the post of principal and teachers of
minority institution are such that the State and District
level officers of the Education Department of the State
have been put in complete control of the process of
selection. These provisions, thus, results in interference
in the day to day affairs of the functioning of minority
institutions. Much emphasis has been laid to the words
used in para ’50’ of the judgment in the TMA Pai
Foundation7 wherein it is observed that the right to
establish and administer comprises of the rights to
appoint staff (teaching and non-teaching); and to take
action if there is dereliction of duty on the part of any of
the employee.
23. We may note, at this juncture, that the observations in
paragraph ’50’ in TMA Pai Foundation7, as placed
before us, was with reference to private unaided non-
minority educational institutions, where the Apex Court
was considering the core components of the rights under
Articles 19 and 26(a). While considering the issue of the
autonomy of the private unaided educational institutions
it was observed that the educational institutions soaring
to great heights in pursuit of intellectual excellence
should be kept free from unnecessary governmental
controls. However, while saying so, at the same time, it
was observed in paragraph ’54’ that the right to
establish an educational institution can be regulated, but
such regulatory measures must, in general, be to ensure
Page 107 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
the maintenance of proper academic standards,
atmosphere and infrastructure (including qualified staff)
and the prevention of mal-administration by those in
charge of the management. It was held therein that in
the case of private unaided educational institutions,
authority granting recognition or affiliation can certainly
lay down conditions for the grant of recognition or
affiliation; these conditions must pertain broadly to
academic and educational matters and welfare of
students and teachers – but how the private unaided
institutions are to run is a matter of administration to be
taken care of by the Management of those institutions.
24. It was submitted before us that taking aid from the State
though alter the above equation, but the extent to which
the autonomy of an aided institution can be
compromised or the difference in the extent of control
between the unaided and aided institution can be culled
out from the observations in paragraphs ’71 to 73′,
wherein it is stated that while giving aid to private
institutions, it will be permissible for the authority giving
aid to prescribe by rules or regulations, the conditions
on which the admission to private aided professional
institutions (non-minority) can be controlled coupled
with the reservation policy of the State. In such
institutions, though by providing aid, the State
Government or the State agency as a condition of the
grant of aid, can put fetters on the freedom in the matter
of administration and management of the institution.
However, the principle stated therein that the autonomy
Page 108 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
of private aided institution would be less than that of an
unaided institution cannot be applied in the case of the
minority aided institutions.
25. The answer to question no.5(c) in paragraph 162-G of
the majority decision in T.M.A. Pai Foundation7 has
been placed before us to submit that while answering
the said question, it was provided as to what extent the
statutory regime can regulate the facets of
administration of a minority institution, both unaided
and aided.
26. It was, thus, argued by the learned Senior counsel that
the Rules 2021 framed for selection of principal and
teachers of minority institutions under Section 35 of the
Act’ 1972, will have to satisfy the dual test as laid down
in paragraph ‘122’ in T.M.A. Pai Foundation7 noted
hereinbefore. The regulations will have to be meeting
the criteria laid down in T.M.A. Pai Foundation7
showing the necessity of the State to protect what in its
view is in the interest of the State.
27. Referring to the observations in paragraph ‘175’ of the
Apex Court in Ahmedabad St. Xavier’s3, it was
submitted that the necessity of the State to protect what
in its view is in the interest of the State cannot be
perceived as the permissible criteria, because the State
feel it necessary. As observed by the Apex Court
therein if a legislature is left free to impose any
regulation, which it thinks necessary to protect what in
its view is in the interest of the State or Society, the
Page 109 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
right under Article 30(1) will cease to be a fundamental
right.
28. It was further argued that the constitution of the
Committees, in a two-tier system, provided for selection
to the post of principal and teachers of a minority
institution by impugned Rules of 2021 is pari materia to
the general rules framed pertaining to majority
institutions, namely : 2017 Rules for Principal and 2011
Rules for teachers. The contention is that the
constitution of the committees in the Selection Rules’
2021 cannot be termed as a mere regulation, but it per
se demonstrates actual active participation of the State
in the exercise of the fundamental rights of the
petitioners to appoint teachers in their institutions.
Nothing in the Constitution or the judicial
pronouncements pertaining to the field, permitted this
kind of joint venture or active participation of the State
in the selection resulting in interference in the day-to-
day affairs of the institution. Policy makers though have
been permitted to regulate, but they cannot control the
selection process. Interference, in the instant case, is
writ large on the face of the record as it starts at the
stage of requisition of the applications and ends with the
appointment letter. The entire power sharing of the
State officers with the management in the selection
process as per the Selection Rules 2021 makes them
vulnerable, inasmuch as, they cannot pass the dual test
of reasonableness/balancing test. Normally the
regulation has to work only from outside, as a watchdog
Page 110 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
and not by power sharing by being part of the selection
committee. This act of the State in framing Rules
under Section 35 of the Act’ 1972 is nothing but fraud on
the constitution/being in excess of the statutory
regulatory powers of the State.
29. It was argued that the observations in paragraph ’21’ in
Malankara Syrian Catholic College10 and paragraphs
’63’ in Sindhi Education Society13 are the standards to
test the extent of regulations by the State permissible in
respect of the employees of minority educational
institutions receiving aid from the State. The Rules
2021, subject matter of challenge herein, are crossing
the lines drawn by the Apex Court in the said decisions
and the offending provisions cannot be severed or
reading down of the Rules is not possible; inasmuch as,
the Rules on the face of it are infringement of the
fundamental rights of the minorities enshrined in Article
30(1) of the Constitution of India.
30. Insofar as the judgment of the Apex Court in S.K.
Mohd. Rafique18 is concerned, it was argued that the
said decision was rendered in the facts and
circumstances of that case itself, wherein after
exhaustive consideration of the statutory provisions in
paragraphs ’54’ and ’55’, the Apex Court has reached at
the conclusion that the constitution of the commission
serves the objects and purpose of the establishment of
minority institutions aided Madrasahs in the Madrasah
Education System in the State. It was said in the facts
Page 111 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
of the said case that only those teachers who would be
best suited to impart education in Madrasah Education
System would be selected as a result of the said
exercise, inasmuch as, predominant composition of the
Commission is of educationists and persons having
profound knowledge in Islamic Culture and Islamic
Theology. The principles laid down therein cannot be
applied to save the impugned selection rules for
principal and teachers of minority institutions framed by
the State of Gujarat.
(iii) Summary of the arguments of Mr. Mihir Joshi, the
learned senior counsel :-
31. Mr. Mihir Joshi, leaned senior counsel for the petitioners
adding to the above-noted arguments made by Mr. Mihir
Thakore and Mr.Shalin N. Mehta, focused on the
amendment in the Act’ 1972 brought for application of
Section 34(2) and Section 35 of the Act’ 1972, and would
submit that the minority and non-minority institutions
are to be kept at par as far as reasonable restrictions
within the parameters of Article 19(1)(g) are concerned.
Minority and non-minority or the majority institutions
form two separate classes. Autonomy of minority
institutions though is not absolute and subject to
reasonable restrictions permitted within the scope of
Article 19(1)(g) of the Constitution, but the right of
minorities to maintain the minority character of the
institutions established by it is absolute in view of Article
Page 112 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
30 and cannot be interfered with. Autonomy is an
important aspect of the right to make its decision by the
body constituted by the minority to manage the
institutions established by it. The decision making
authority, i.e. management of minority institutions
though can be regulated by permissible means, but it
cannot be replaced.
32. Elaborating these submissions, the learned senior
counsel has taken us through the legislative history of
the principal enactment viz. Gujarat Secondary
Education Act, 1972 (Gujarat Act 18 of 1973). Placing
the judgment of the Apex Court in Bharat Sevashram
Sangh v. State of Gujarat19, wherein the constitutional
validity of the principal Act of 1972 was subjected to
challenge, it was submitted before us that one of the
issues before the Apex Court was about the Presidential
assent. While examining the same, it was noted in
paragraph ‘6’ thereof that when the Bill was presented
to the Governor of Gujarat after it was passed by the
State Assembly, the Governor reserved it for the
consideration of the President under Article 200 of the
Constitution and, accordingly, the Bill was referred to
the President. During discussion on the Bill, it was
transpired that the Bill did not exclude institutions
established or administered by the minorities from their
scope and hence, the provisions were repugnant to
Article 30 of the Constitution. Consequently, the bill was
suitably amended by promulgating of an Ordinance No.6
19
(1986) 4 SCC 51
Page 113 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
of 1973, which was forwarded for the instructions of the
President under Article 213(1) of the Constitution. The
draft of the Ordinance and the Bill were both considered
by the President and the assent was, thereafter, granted
to the Bill and the instructions as required by the proviso
to Article 213 of the Constitution were issued for the
promulgation of the said Ordinance, whereafter the Bill
became law on its promulgation.
33. With these facts, with the aid of the observations of the
Apex Court in Bharat Sevashram Sangh19, it was
vehemently argued by Mr. Mihir Joshi, the learned
Senior counsel, that the proposed law as was understood
by the President and was not accepted, as it would have
resulted into interference in the rights of the minorities
and hence modified, is now being promulgated in the
year 2021 with the amendment of Section 40A. The
provisions of Section 17(26), Section 34(2) and Section
35, which were expressly excluded from being applicable
to an educational institution established and
administered by a minority (religious and linguistic),
have been brought in by the legislature with the
impugned amendment.
34. The submission is that the legislative history indicates
that the provisions of the Act’ 1972 were enacted with
the clear idea by the legislature that there shall be no
fetters on the right of the minority. This historical fact
was required to be looked into to understand and note
from the legislative history that the legislative
Page 114 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
enactment cannot be permitted to treat two separate
classes as being similar. By bringing in the Section
17(26), Section 34(2) and Section 35 with the
amendment of Section 40A vide Amendment Act 16 of
2021, it is evident that the constitutional protection
granted to the minority institutions under Article 30(1) is
sought to be infringed. Treating two separate classes as
same by the impugned amendment resulted in violation
of Article 14, inasmuch as, for minorities the provisions
of the Act, 1972 enacted for the majority/non-minority
could not have been implemented.
35. The further submissions is that enabling power of the
State under Article 15(5) to make any law prescribing
special provisions for advancement of socially and
educationally backward class of citizens or for
Scheduled Castes or Scheduled Tribes cannot be
extended to minority institutions. The Apex Court in
Pramati Educational & Cultural Trust v. Union of
India20, has stated in categorical terms that minority
character of the minority educational institutions
referred to in Article 30(1) of the Constitution, whether
aided or unaided, would be affected by admission of
candidates belonging to reserved category and, hence,
they are kept outside the enabling power of the State
under Article 15(5) with a view to protect the minority
institutions from the law made by the majority. The
Constitution Bench in Ashoka Kumar Thakur v. Union
20
(2014) 8 SCC 1
Page 115 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
of India & Ors.21, has held that the minority
educational institutions, by themselves, are a separate
class and therefore, the exclusion of minority
educational institutions from Article 15(5) falls within
the scope of Article 14 of the Constitution of India.
36. Placing the Judgment of the Apex Court in P.A.
Inamdar11, it was argued that while clarifying the
decision in T.M.A. Pai Foundation7 that the State or
other controlling authorities can prescribe the minimum
qualification, experience and other conditions bearing on
the merit of an individual for being appointed as a
teacher or a principal of any educational institution, it
was categorically stated that regulations can be framed
governing service conditions for teaching and other staff
for whom aid is provided by the State, without
interfering with the overall administrative control of the
management over the staff.
37. T.M.A. Pai Foundation7 judgment explained in Islamic
Academy of Education v. State of Karnataka 22, is
reiteration of law that there is a clear distinction
between minority and non-minority educational
institutions made by Article 30(1), in the fundamental
rights conferred by Article 19(1)(g) of the Constitution.
In the opinion of S.B. Sinha, J. in Islamic Academy of
Education22, minority educational institutions has been
conferred by Article 30(1) of the Constitution “certain
additional protection” with the object of bringing the
21
(2008) 6 SCC 1
22
(2003) 6 SCC 697
Page 116 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
minorities on the same platform as that of non-
minorities, so that the minorities are protected by
establishing and administering educational institutions
for the benefit of their own community, whether based
on religion or language.
38. The Apex Court in P.A. Inamdar11 has considered the
interrelationship of Articles 19(1)(g), 29 and 30 of the
Constitution of India and has considered the difference,
if any, in the context of minority educational institutions,
if they are aided or unaided or if they seek recognition or
affiliation. The answer to the said issue in paragraphs
’91’ to ’93’ have been placed before us, which may be
noted hereinunder for ready reference :-
“91. The right to establish an educational institution,
for charity or for profit, being an occupation, is
protected by Article 19(1)(g). Notwithstanding the
fact that the right of a minority to establish and
administer an educational institution would be
protected by Article 19(1)(g) yet the founding fathers
of the Constitution felt the need of enacting Article
30. The reasons are too obvious to require
elaboration. Article 30(1) is intended to instil
confidence in minorities against any executive or
legislative encroachment on their right to establish
and administer educational institution of their choice.
Article 30(1) though styled as a right, is more in the
nature of protection for minorities. But for Article 30,
an educational institution, even though based on
religion or language, could have been controlled or
regulated by law enacted under clause (6) of Article
19, and so, Article 30 was enacted as a guarantee to
the minorities that so far as the religious or linguistic
minorities are concerned, educational institutions of
their choice will enjoy protection from such
legislation. However, such institutions cannot bePage 117 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
discriminated against by the State solely on account
of their being minority institutions. The minorities
being numerically less qua non-minorities, may not
be able to protect their religion or language and such
cultural values and their educational institutions will
be protected under Article 30, at the stage of law-
making. However, merely because Article 30(1) has
been enacted, minority educational institutions do
not become immune from the operation of regulatory
measures because the right to administer does not
include the right to maladminister. To what extent
the State regulation can go, is the issue. The real
purpose sought to be achieved by Article 30 is to give
minorities some additional protection. Once aided,
the autonomy conferred by the protection of Article
30(1) on the minority educational institution is
diluted as provisions of Article 29(2) will be
attracted. Certain conditions in the nature of
regulations can legitimately accompany the State aid.
92. As an occupation, right to impart education is a
fundamental right under Article 19(1)(g) and,
therefore, subject to control by clause (6) of Article
19. This right is available to all citizens without
drawing a distinction between minority and non-
minority. Such a right is, generally speaking, subject
to the laws imposing reasonable restrictions in the
interest of the general public. In particular, laws may
be enacted on the following subjects : (i) the
professional or technical qualifications necessary for
practising any profession or carrying on any
occupation, trade or business; (ii) the carrying on by
the State, or by a corporation owned or controlled by
the State of any trade, business, industry or service
whether to the exclusion, complete or partial of
citizens or otherwise. Care is taken of minorities,
religious or linguistic, by protecting their right to
establish and administer educational institutions of
their choice under Article 30. To some extent, what
may be permissible by way of restriction under
Article 19(6) may fall foul of Article 30. This is the
additional protection which Article 30(1) grants to
the minorities.
Page 118 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
93. The employment of expressions “right to
establish and administer” and “educational
institution of their choice” in Article 30(1) gives the
right a very wide amplitude. Therefore, a minority
educational institution has a right to admit students
of its own choice, it can, as a matter of its own free
will, admit students of non-minority community.
However, non-minority students cannot be forced
upon it. The only restriction on the free will of the
minority educational institution admitting students
belonging to a non-minority community is, as spelt
out by Article 30 itself, that the manner and number
of such admissions should not be violative of the
minority character of the institution.”
39. It was held in P.A. Inamdar11 that Articles 29 and 30
can be read as a protection and/or a privilege to a
minority. The law laid down in T.M.A. Pai
Foundation7 has been reiterated by stating that the
State may prescribe a reasonable regulations to ensure
the excellence of the educational institutions to be
granted aid or to be recognized and to lay down
conditions for recognition such as an institution must
have a particular amount of funds or properties or
number of students or standard of education and so on,
but there is a dividing line and that is in the name of
laying down conditions for aid or recognition the State
cannot directly or indirectly defeat the very protection
conferred by Article 30(1) on the minority to establish
and administer educational institutions of their choice.
The dividing line between how far the regulation would
remain within the constitutional limits and when the
regulations would cross the limits and be vulnerable is
fine yet perceptible. The recognition of a minority
Page 119 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
institution by the State and the regulations can neither
aimed at nor has the effect of depriving institution of its
minority status.
40. The submission, thus, is that the legal position from the
judicial pronouncements about the rights of minority
institutions protected under Article 30(1) of the
Constitution is clear that the aided minority institutions
and aided non-minority educational institutions cannot
be treated at par and the same standards of control or
regulation cannot be applied to them, inasmuch as, the
special rights or “certain additional protection” granted
with the object of protection of minority character of the
educational institutions shall have to be given due
consideration. The management of the minority
institution has to be given due leverage or freedom to
administer educational institutions for the benefit of
their own community and there cannot be any external
controlling agency regulating day-to-day affairs of the
minority institutions.
41. It was, thus, argued by Mr. Joshi, learned Senior counsel
for the petitioners that in the above legal perspective,
the enabling provisions under Section 34(2) and Section
35 of the Act’ 1972 which have been made applicable to
the minority institutions by virtue of amendment of
Section 40-A, when analyzed, it is clear that these
provisions are sought to be applied uniformly to two
different classes, viz. minority and non-minority or
majority institutions. The legislative history of principal
Page 120 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
enactment of the Act’ 1972 indicates that the legislature
was conscious that same policy principles cannot apply
to both minority and majority and hence, recommended
for amendment in the Bill to exclude minority
educational institutions from the purview of the
provisions regulating the affairs of educational
institutions such as selection and appointment of
teachers and non-teaching staffs. The amendment of
Section 40A, to bring in the educational minority
institutions within the purview of the enabling provisions
under Section 34(2) and Section 35 conferring
controlling powers to the State, is, thus, clearly hit by
Article 30(1) of the Constitution and is to be declared as
ultra vires to the Constitution.
42. Adding to the above, it was argued that the rule making
powers conferred on the State by Section 35 of the Act’
1972 extended to minority institutions is unfettered,
uncontrolled or unguided. The Act does not provide any
guidance or instructions to the State Government, the
executive authority, as to how and in what manner rule
making power will be exercised by the State
Government. The language of Section 35 conferring
very wide powers to the State Government to legislate in
the matter of minority educational institutions suffers
from the vice of excessive delegation of power. The
discretion should not be so wide that it is impossible to
discern its limits. The boundaries within which the
power can be exercised is indefinite conferring powers
on the administrative authority to make rules in an
Page 121 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
unguarded manner. The rule making power, if delegated
to the administrative authority, must sub-serve the
object and purpose of the Act. The power to prescribing
rules to regulate the minority educational institutions as
provided in Section 35 being vague is prone to be
exercised or transgressed beyond permissible
boundaries of valid delegation.
43. The observation in paragraph ‘8’ of the Apex Court in
Hamdard Dawakhana v. Union of India23 has been
placed before us to submit that the mischief rules in the
said decision provides a guideline as to how to examine
the validity of an enactment, and reads as under :-
“8. Therefore, when the constitutionality of an
enactment is challenged on the ground of violation of
any of the articles in Part III of the Constitution, the
ascertainment of its true nature and character
becomes necessary i.e. its subject-matter, the area in
which it is intended to operate, its purport and intent
have to be determined. In order to do so it is
legitimate to take into consideration all the factors
such as history of the legislation, the purpose thereof,
the surrounding circumstances and conditions, the
mischief which it intended to suppress, the remedy for
the disease which the legislature resolved to cure and
the true reason for the remedy; Bengal Immunity
Company Ltd. v. State of Bihar [(1955) 2 SCR 603,
632 & 633]; R.M.D. Chamarbaughwala v. Union of
India [(1957) SCR 930, 936] ; Mahant Moti Das v. S.P.
Sahi [AIR (1959) SC 942, 948] .”
44. Further, the decision of the Apex Court in the State of
W.B. v. Anwar Ali Sarkar24, has been placed before us
23
959 SCC OnLine SC 38
24
AIR (39) 1952 SC 75
Page 122 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
to argue that the Apex Court has frowned on the
enactment therein which has completely ignored the
principle of classification under the Criminal Procedure
Code by providing a procedure, which is less
advantageous to the accused than the ordinary
procedure. The discrimination was quite evident and the
enactment in implementation, execution of which
resulted in discriminatory treatment to a particular case
or classes of persons or cases was not allowed to stand.
It was observed therein that it was a case of insidious
discrimination incorporated in the Act itself.
45. It was argued by the learned Senior counsel that the
Apex Court has clarified therein that the discrimination
may not appear in the statute itself, but may be evident
in the administration of law. If uncontrolled or unguided
power is conferred without any reasonable or proper
standards or limits being laid down in the enactment,
the statute itself may be challenged and not merely the
particular administrative act. The validity or invalidity of
a statute often depends on how it is construed and
applied. It may be valid when given a particular
application and invalid when given another. In the
instant case, the fact that Section 35 of the Act, 1972 is
a general provision applicable to all class of persons, it
cannot be said or expected that it cannot discriminate in
favour of or against any particular case or classes of
persons or cases. The unfettered discretion given to
the executives without laying down any standard or rules
of guidance to make use of the provisions, itself resulted
Page 123 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
in infringement of the equality doctrine enshrined in
Article 14 of the Constitution of India.
46. On this principle, it was argued that the provisions of
Section 35 of the Act, 1972 applied by the amendment of
Section 40-A by the Amendment Act 16 of 2021 being a
general provision without any guidance conferring
unfettered discretion on the State executives to frame
rules providing procedure for selection of principal and
teachers of minority institutions, suffers from excessive
delegation of legislative authority amounting to its
abdication, inasmuch as, it gives unfettered discretion to
the executive to make use of the provision itself, and,
thus, an infringement of Article 14 of the Constitution.
On this ground as well, the said provisions of the Act’
1972 applied to the minority institutions by way of the
impugned amendment of 2021, cannot withstand the
twin test of reasonableness laid down in T.M.A. Pai
Foundation7.
47. The next argument is to challenge the validity of the
Rules, 2021 framed for recruitment of principal/teachers
in the minority educational institutions in the State of
Gujarat. It was submitted that the Scrutiny committee
prescribed in Rule 3(2) comprised completely of
outsiders and a Government body prescribed at the
stage of scrutiny to decide the pool for selection of
teachers itself impinges the minority right. Prescribing
total marks allocated for preparation of pool of eligible
teachers by the scrutiny committee and selection of
Page 124 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
teacher by the Minority school selection committee is
the proof of control of the State in the whole selection
process, inasmuch as, there is nothing left actually to the
discretion of the minority institutions in the matter of
making selection of principal and teachers of their
choice, to upkeep the ethos, culture and tradition of the
minority (both religious and linguistic). The provision of
the Rules leaving only 40 marks to the discretion of the
minority school selection committee has further been
distributed amongst the members of the committee,
which includes outsiders. Further, there is a mandate
in the rule that only the first placed candidate in the
merit list would be appointed which itself is a step
beyond the permissible limit of reasonable restrictions
as it results in completely displacing the decision making
authority thereby affecting the autonomy of minority
institutions.
48. It was vehemently argued that the provisions for making
selection prescribed in impugned Rules’ 2021, affects
the decision making process, i.e. the actual decision and,
thus, infringing the rights of the minorities. There is a
fine distinction between the infringement and regulation.
What affects the decision making process or actual
decision is an infringement, whereas anything which
would strengthen the decision making process would be
valid as regulation with reasonable restriction.
49. In support of this submission, reliance is placed on the
judgment of the Apex Court in Rev. Father W. Proost2,
Page 125 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
to submit that Section 48A of the Bihar Universities Act,
1962 which provided for establishment of University
Service Commission for affiliated colleges not belonging
to the State Government has been held to be a provision,
which completely took away the autonomy of the
governing body of the college and virtually vested the
control of the college in the University Service
Commission and, thus, was held to be violative of the
protection guaranteed to the minorities educational
institutions under Article 30(1) of the Constitution. It
was held therein that the language of Article 30(1) is
wide and must receive full meaning. Any attempts to
whittle down the protection granted therein cannot be
allowed to sustain. The Court may not enlarge the
protection but it cannot reduce a protection naturally
flowing from the words of the Constitution in Article
30(1) thereof.
50. The decision of the Apex Court in D.A.V. College v.
State of Punjab25 has been placed to submit that
noticing the above observation in Rev. Father W.
Proost2, it was stated by the Apex Court therein that
while the university was empowered to prescribe by
regulations governing the service and conduct of
teachers which was enacted in the larger interests of the
Institutions to ensure their efficiency and excellence; the
nature of the infringement of the right, if any, under
Article 30(1) will depend on the actual purpose and
import of the ordinance/regulations when made and the
25
(1971) 2 SCC 269
Page 126 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
manner in which it is likely to affect the administration
of the educational institution.
51. Placing the decision in Gandhi Faiz-e-am-College v.
University of Agra26, wherein the Apex Court
considered the validity of the statute 14-A framed by the
University being an invasion of the fundamental right
guaranteed to the minority community under Art. 30 of
the Constitution of India, it was argued that it was
observed therein referring to previous decisions in
Ahmedabad St. Xavier’s3, Rev. Father W. Proost2
and D.A.V. College25 that in all those cases, the
administrative autonomy was imperilled transgressing
purely regulatory limits. Mathew, J. in his dissenting
voice, has observed that the determination of the
composition of the body to administer the educational
institution established by a religious minority must be
left to the minority as that is the core of the right to
administer. Regulations to prevent maladministration by
that body are permissible. As the right to determine the
composition of the body which will administer the
educational institution is the very essence of the right to
administer guaranteed to the religious or linguistic
minority under Article 30(1), any interference in that
area by an outside authority cannot be anything but an
abridgment of that right. The religious or linguistic
minority must be given the freedom to constitute the
agency through which it proposes to administer the
educational institutions established by it as that is what
26
(1975) 2 SCC 283
Page 127 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Article 30(1) guarantees. The observations in paragraph
‘182’ Ahmedabad St. Xavier’s3 was noted to record
therein that the said observations cannot be interpreted
to mean that the Principal and the Senior-most member
of the staff are required to be included in the managing
committee of the college in question.
52. It was, thus, argued vehemently that inclusion of
outsiders in the selection committee for appointment to
the post of Principal/teacher of the minority institutions
in the State of Gujarat is a clear case of invasion in the
rights of the minorities to administer their institution.
53. With respect to the judgment of the Apex Court in S.K.
Mohd. Rafique18, it was argued that the said decision
was rendered in the facts of that case before the Apex
Court and cannot be read and applied herein as a
statement of law of the Apex Court. It is submitted that
even in S.K. Mohd. Rafique18, the Apex Court has
noted the law discussed in D.A.V. College25 in
paragraph ’22’ and the judgment in Rev. Father W.
Proost2 in paragraph ’20’ without any dissent. Both
these decisions are five (5) Judge’s Bench whereas S.K.
Mohd. Rafique18 is a two (2) Judge’s judgement,
wherein the law stated in D.A.V. College25 and Rev.
Father W. Proost2 have been restated with approval
with the discussion in paragraph ’54’. Looking to the
nature of the statutory provision under challenge
therein, the Apex Court has, however, upturned the
challenge. The decision in S.K. Mohd. Rafique18 in no
Page 128 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
way can be read against the petitioners herein.
54. Much emphasis has further been laid on the
observations of Fazal Ali, J. in All Saints High School
v. Govt. of A.P.27 to argue that the terms in which
Article 30 is couched are absolute and unconditional as
compared to Article 19 which is hedged in by reasonable
restrictions which may be imposed by the State in public
interest. In a way, the fundamental right contained in
Article 30 is more effective and wider than the
fundamental rights contained in Part III of the
Constitution. Three important tests which would
determine whether or not the action of the government
amounts to interference with the management of the
institution as laid down in Very Rev. Mother
Provincial1 have been noted in paragraph ’34’ therein.
55. The submission is that the validity of the Rules’2021
framed by the State, in the instant case, if decided on
the anvil of the test prescribed in the above decisions, it
cannot withstand the scrutiny and would fall foul of
Article 30(1) of the Constitution.
56. The observations in paragraphs ’64’ and ’65’ of the
decision in All Saints High School27 have been pressed
into service to argue that the impugned Act’ 2021 passed
by the State herein, which took within its sweep even the
minority institutions, without laying down any rules,
regulations governing the conditions of service of the
teachers of such institution providing any guidelines on
27
(1980) 2 SCC 478
Page 129 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
the basis of which the rules could be made, is found to
be suffering from a serious lacuna, which makes it
completely violative of Article 30 of the Constitution. It
was, thus, argued that on the same analogy, the validity
of Section 40A by which the general provisions of
Section 35 of the Act, 1972 have been applied, in the
case of minority institutions, is to be decided and once it
is demonstrated that the legislature while empowering
the State to frame Rules, has not prescribed any
guidelines or the power of the State to delegate is not
circumscribed by constitutional limits, the impugned
provision would result in causing infringement of the
rights of minority. The enabling enactment must
provide what could be the extent of restrictions
permissible in case of minority by prescribing area
within which the State Government can frame
regulations.
57. Moreover, the application of same enactment which
governs educational institutions run by the majority to
regulate the minority institutions is itself a ground of
holding the amended Section 40-A by Gujarat Act No. 16
of 2021 and the Rules’ 2021 framed thereunder for
recruitment of principal and teachers in minority
educational institutions, being ultra vires to Articles 29
and 30 of the Constitution.
(iv) Summary of the arguments of Mr. N.K. Majmudar,
the learned counsel :-
58. Shri N.K. Majmudar, learned advocate adding to the
Page 130 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
abovenoted submissions made by the learned senior
counsels would submit that he has perused the
provisions of the Intermediate Education Act, 1921
framed by the State of U.P. wherein Section 16-F
provides for constitution of selection committee for the
selection of candidates for appointment as Head of an
institution. Section 16-E prescribes the manner in which
the Head of the institution and teachers of the institution
shall be appointed by the Committee of management.
However, Section 16FF is the specific provision saving
the rights of the minority institutions by providing a
separate constitution of the selection committee for
appointment of a Head of the institution or a teacher of
an institution established and administered by the
minority as referred to in Article 30(k)(1) of the
Constitution of India. This provision leaves discretion to
the Committee for management of minority institutions
by providing that the selection committee shall consist of
five persons including its Chairman nominated by the
Committee of management. Only with respect to one of
the members of the selection committee, in the case of
appointment of Head of an institution, it is provided
therein that an expert be selected by the Committee of
management from the panel of experts prepared by the
Director and in the case of appointment of a teacher, one
member shall be the Head of the institution concerned.
59. Referring to the judgment of the Apex Court in T.M.A.
Pai Foundation7, it was argued that though the right
conferred under Article 30(1) is not absolute and the
Page 131 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
regulations can be laid down in national interest,
however, day to day management of the institution
cannot be related to national interest. For selection of
teachers, the minimum qualification, etc. can be
prescribed, but the Rules prescribing the criteria as to
how to judge a candidate; who is the most suitable;
whom to select; how to select; who will select, etc.
should be left to the management of the institution.
60. With the amendment of Section 40A, by application of
Sections 17, 26, 34(2) and 35, the earlier excluded
provisions have now been made applicable conferring
power on the Education Board constituted under the Act’
1972 of the State to prescribe regulations and rules to
interfere in the day to day management of the minority
institution. There is no justification for inclusion of the
said provisions in the garb of the decision of the Apex
Court in T.M.A. Pai Foundation7 after 39 years. The
amendments are aimed at taking away all the rights of
the minority institutions and, therefore, cannot be
sustained.
(v) Further arguments :-
61. Mr. Mihir Thakore, learned senior counsel for the
petitioners further adding to the grounds of challenge
would argue that the provisions prescribing Teachers
Aptitude Test as one of the qualification of eligibility for
appointment to the post of Principal and teachers in the
minority institutions in the State of Gujarat, is another
reason to hold the selection Rules’ 2021
Page 132 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
unconstitutional. In support of this submission, much
emphasis has been laid to the observations in paragraph
’55’ in Pramati Educational & Cultural Trust20 to
contend that the Right to Education Act, 2009 has been
held inapplicable to the minority schools, aided or
unaided, by holding that the right of the minorities
under Article 30(1) of the Constitution will be abrogated.
Insofar as, the Act 2019, if it is made applicable to the
minority schools referred in Article 30(1) of the
Constitution it has to be held to be ultra vires the
Constitution.
62. Subsequent thereto, the Bombay High Court in the
judgment and order dated 02.11.2023 in Writ
petition No. 6894 of 2023 has held that the
requirement of Teachers Eligibility Test (TET) as a pre-
condition for appointment of teachers in the school
cannot be imposed in respect of teachers appointed in
the minority institutions as it would impose an embargo
on the rights of the minority institutions to appoint
teachers of their choice. It was argued that the Bombay
High Court has also taken note that once the RTI Act,
2009 itself is not applicable, there is no question of
applicability of the guidelines framed under the said Act
to restrict the choice of the minority to choose teachers
who would be found eligible in the Teachers Eligibility
Test. Same view has been taken by the Madras High
Court in Writ petition No. 32873 of 2017 decided on
21.04.2022.
Page 133 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
63. A judgment of the Madras High Court dated 25.09.2024
has been placed before us to argue that the UGC
Regulations, 2010 prescribing selection of faculties in
the cadre of Asst. Professor to minority institutions has
been held to be inapplicable to such institutions, for two
reasons; one by virtue of their minority status and
another in view of their autonomous character.
64. It was, thus, argued vehemently that the question is as
to whether the State can provide for requirement of
passing a test of eligibility for selection of teachers and
principal of minority institutions, when the Apex Court in
Pramati Educational & Cultural Trust20 has clarified
that the provisions of the RTI Act, 2009 cannot apply to
the minority institutions. It was submitted that the
concept of Teachers Aptitude Test (TAT) has been
brought in by the regulations framed by the National
Council for Teachers, a regulatory body constituted to
ensure strict implementation of the RTI Act, 2009. The
selection rules prescribing eligibility qualification by
including Aptitude test [(HMAT & TAT), in the instant
case] further impinges the rights of minorities. To sum-
up, it was argued that the law laid down in Ahmedabad
St. Xavier’s3 has not been whittled down or diluted in
T.M.A. Pai Foundation7, which mainly deals with
admissions and not appointment though certain
observations therein are pertaining to appointment of
teachers.
65. To sum up, it was vehemently argued that the Nine (9)
Page 134 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Judges Bench judgement in Ahmedabad St. Xavier’s3
lays down the guidelines as to how the provisions of
Regulations will be tested. In Ahmedabad St.
Xavier’s3, the provisions of the Gujarat University Act
whereby the representative(s) of the University
was/were included in the selection committee, was
struck down. T.M.A. Pai Foundation7 is in fact in
approval of the law laid down in Ahmedabad St.
Xavier’s3 and the observations in T.M.A. Pai
Foundation7 of “public interest” or “national interest”
cannot be applied, out of the context, to dilute the
principles in Ahmedabad St. Xavier’s3. Aided and
unaided institutions have the same rights and autonomy
and aided institutions cannot be discriminated by
conferring power upon the State to regulate beyond the
circumscribed limits laid down in T.M.A. Pai
Foundation7 and Ahmedabad St. Xavier’s3. Any
contrary observations in S.K. Mohd. Rafique18 would be
distinguishable.
E. ARGUMENTS OF LEARNED ADVOCATE GENERAL :-
66. The learned Advocate General has taken us through the
Statement of Objects and Reasons in bringing the
Gujarat Act No.16 of 2021, the amended Section 40A,
and the Rules framed under Section 35 of the Act’ 1972,
to submit that if the Rules 3, 6, 10 and 11 of the Rules’
2021, are read in juxtaposition to each other, it is clear
that the Rules only prescribe the selection criteria and
procedure to be adopted by the Scrutiny committee
Page 135 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
under Rule 3 and the Minority school selection
Committee constituted under Rule 7. A reading of Rule
7 and Rule 13 together with Appendix – I and Appendix –
II to the Rules make it clear that in scrutinizing, the
scrutiny committee constituted under Rule 3 is only
required to ensure that the candidates placed in the
eligibility list fulfill the requisite eligibility criteria of
educational qualification in accordance with the Act,
1972 and the Gujarat Secondary and Higher Secondary
Education Regulations, 1974 as amended from time to
time, as is clear from Rule 5 read with Appendix – I. The
choice to select a suitable candidate for the post of
principal or teacher from amongst the list of eligible
candidates prepared by the scrutiny committee is left
entirely to the Minority schools selection committee,
which comprises of the majority of members from the
institution concerned and chaired by the nominee of the
Management of the concerned school.
67. It was urged that the provisions of Rules, 2021 for
selection to the post of principal and teachers became
imperative for the problems found by the State in the
inspections carried out of the educational institutions
where ghost teachers were appointed to defray the
public money.
68. The Rules of 2021 framed by the State Government in
exercise of the powers conferred upon it under Section
35 of the Act, 1972 are aimed at prescribing fair and
transparent process for effecting merit based selection;
Page 136 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
facilitation of smooth administration of the institution by
a Principal/teacher selected through such process; for
prevention of mal-administration. The submission is that
the regulations are in the interest of both the teachers
and the students with the aim to achieve excellence and
uniformity in the standards of education. All these
aspects of making the provisions are in the National
interest. The provision for Scrutiny committee in Rule 3
has been incorporated to ensure a fair and transparent
process by ensuring that the advertisement of the
vacancy is made in a proper manner. Out of 100 marks,
weightage to be allocated by the Scrutiny committee, for
preparation of school-wise eligibility list of 15
candidates, the criteria of marks for which has been
provided in Appendix I and II, which is to be adhered to.
69. The Scrutiny committee upon preparation of the
eligibility list of 15 candidates, is required to forward the
same to the Minority school selection committee for
personal interview, which comprises of total 40 marks.
The final selection list is to be prepared by the Minority
School Selection Committee for the purpose of
appointment after personal interview, for which,
standard norms provided in Rule 13(3) are to be
followed by the Minority school selection committee,
which has been prescribed to bring uniformity and
transparency in the selection process. In the
constitution of the Minority school selection committee,
in case of appointment of principal, only two are
outsiders, viz. an Academician outside of Taluka and one
Page 137 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
principal of any grant-in-aid registered institution, which
too are to be suggested or nominated by the
Management of the concerned minority school. Only one
Academician outside of Taluka that too suggested by the
concerned Minority School Management is to be
included, for selection of teacher.
70. It was, then, submitted by the learned Advocate General
that the Member Secretary of the Minority school
selection committee, whose presence is compulsory for
the meeting of the said committee for the purpose of
selection only plays the role of an Observer and has no
say in the selection process. With this arrangement in
the Rules, 2021, the State has struck a balance between
the rights of the minority institutions and its power to
regulate in the interest of teachers and students, in
order to achieve excellence and uniformity in the
standards of education in the State of Gujarat. The
constitution of Minority school selection committee
prescribed in the Rules 2021 for recruitment of principal
and teachers in minority institutions is nothing but an
alter ego of the Committee of Management of concerned
minority institution.
71. Coming to the legal principles pertaining to the field, the
learned Advocate General has referred to the decision of
the Apex Court in T.M.A. Pai Foundation7 to refute the
arguments of the learned counsels for the petitioners
noted hereinbefore to submit that the amended provision
of the Act’ 1972 and the Rules’ 2021 framed by the State
Page 138 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
thereunder cannot withstand the test of scrutiny laid
down therein, are misplaced.
72. With reference to the decision of the Apex Court in
S.K. Mohd. Rafique18, Jesus and Mary College,
Delhi v. University of Delhi28 and Archdiocesan
Board of Education v. Goa University 29, it was argued
that the selection committee consisting of outsiders even
if appointed by the State Government for the purpose of
maintaining transparency in the matter of appointment
of principal and teachers in aided minority schools is
legal and proper and the same in no way tinkers with the
minority character of the institution and/or does not
interfere with the day to day management of such
institutions.
73. Placing reliance on the judgment of the Apex Court in
the State of U.P. v. Abhay Nandan Inter College 30, it
was argued that there is no distinction between the
minority and non-minority institutions receiving aid and
both category of institutions are bound by the conditions
imposed for grant of aid. The Apex Court while
observing so in Abhay Nandan Inter College30, has
taken note of its previous decision in S.K. Mohd.
Rafique18 that “Regulations framed in the pursuit of
excellence of education in National interest”, cannot be
struck down.
28
2006 SCC OnLine Del 1482
29
2022 SCC OnLine Bom 1196
30
(2021) 15 SCC 600
Page 139 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
74. Replying to the arguments of Mr. Mihir Joshi that the
provisions of the Act, specifically Section 35 of the Act’
1972 suffers from excessive delegation of power, with
the aid of the decision of the Apex Court in Kathi
Raning Rawat v. State of Saurashtra 31, Jyoti
Pershad v. Administrator for Union Territory of
Delhi32, Consumer Action Group v. State of T.N. 33
and Vivek Narayan Sharma (Demonetisation Case-5
J.) v. Union of India34 it was argued that there is a
clear distinction between the provision to be ultra vires
as delegation of power being excessive and the exercise
of power by such delegatee to be arbitrary or illegal.
The apprehension that the delegatee may exercise
powers entrusted with it in an arbitrary manner cannot
be a reason to hold the delegation of power itself being
excessive.
75. It was submitted that the Apex Court in Consumer
Action Group33, while considering a catena of previous
decisions has concluded that in spite of very wide power
being conferred on the delegatee, a Section (Statutory
provision) would still not be ultra vires, if guidelines
could be gathered from the Preamble, Object and
Reasons and other provisions of the Acts and Rules. In
testing the validity of such provision, the Courts have to
discover, whether there is any legislative policy, purpose
of the statute or indication of any clear will through its
31
(1952) 1 SCC 215
32
1961 SCC OnLine SC 127
33
(2000) 7 SCC 425
34
(2023) 3 SCC 1
Page 140 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
various provisions, if there be any, then that by itself
would be a guiding factor to be exercised by the
delegatee. In such case, the exercise of power of such a
delegatee is controlled through such policy and then it
cannot be held that such a power is unbriddled or
uncanalised. It was observed, thus :-
“18. The fast-changing scenario of economic,
social order with scientific development spawns
innumerable situations which the legislature possibly
could not foresee, so the delegatee is entrusted with
power to meet such exigencies within the inbuilt
check or guidance and in the present case to be
within the declared policy. So the delegatee has to
exercise its powers within this controlled path to
subserve the policy and to achieve the objectives of
the Act. A situation may arise, in some cases where
strict adherence to any provision of the statute or
rules may result in great hardship, in a given
situation, where exercise of such power of exemption
is to remove this hardship without materially
affecting the policy of the Act, viz., development in
the present case then such exercise of power would
be covered under it. All situations cannot be culled
out, which have to be judiciously judged and
exercised, to meet any such great hardship of any
individual or institution or conversely in the interest
of the society at large. Such power is meant rarely to
be used. So far as decisions relied on by the
petitioner, where the provisions were held to be ultra
vires, they are not cases in which the Court found
that there was any policy laid down under the Act. In
A.N. Parasuraman35 the Court held Section 22 to be
ultra vires as the Act did not lay down any principle
or policy. Similarly, in Kunnathat Thathunni Moopil
Nair36. Section 7 was held to be ultra vires as there
was no principle or policy laid down.”
35
(1989) 4 SCC 683
36
AIR 1961 SC 552 : (1961) 3 SCR 77
Page 141 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
76. Further observations in paragraphs ’19’ to ’21’ of the
said decision are also to be noted herein-under :-
“19. In this background we find the Preamble of the
Act laid down:
“An Act to provide for planning the development
and use of rural and urban land in the State of
Tamil Nadu and for purposes connected
therewith.”
20. The Preamble clearly spells out the policy
which is for planning and development of the use of
the rural and urban land in the State. The
Statement of Objects and Reasons also indicates
towards the same, the relevant portion of which is
quoted hereunder: “The Tamil Nadu Town Planning
Act, 1920 (Tamil Nadu Act 7 of 1920) which is
based on the British Town and Country Planning
and Housing Act, 1909, has been in force in the
State for nearly five decades. The said Act provides
for matters relating to the development of towns to
secure to their present and future inhabitants,
sanitary conditions, amenity and convenience. It
was felt necessary to make comprehensive
amendments to the Act as the Act had several
shortcomings and defects.”
21. Not only “Preamble” and “Objects and
Reasons” of the Act clearly indicate its policy but it
is also revealed through various provisions of the
enactment. Sub-section (13) of Section 2 defines
“development” for carrying out any of the works
contemplated in the regional and master plan etc.
Section 9-C defines functions and powers of
Metropolitan Development Authority, Section 12
refers to functions and powers of the appropriate
planning authorities, Section 15 refers to regional
planning. Section 16 is for preparation of land and
building map, Section 17 refers to the master
plans, Section 18 refers to new town development
plan, Section 19 refers to the declaration of
Page 142 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
intention to make or adopt a detailed development
plan, Section 20 refers to the contents of detailed
development plan, Section 47 refers to use and
development of land to be in conformity with the
development plan, Section 48 refers to the
restrictions on building and lands in the area of the
planning authority. Each of them contributes for
subserving the policy of the Act, and clearly
declares the purpose of the Act. Hence Section 113
cannot be held to be unbridled, as the Government
has to exercise its power within this guideline.
Hence we hold Section 113 to be valid.”
77. The observations in the decision of the Apex Court in
Vivek Narayan Sharma (Demonetisation Case-5 J.) 34
(popularly known as “demonitisation judgement”), on the
question answered by the majority on the power
conferred under Sub-section (2) of Section 6 of the RBI
Act being suffering from excessive delegation upon the
Central Government, was placed before us to argue that
there are various factors to be evaluated by the Court in
a case of challenge to the statutory provisions from the
vice of excessive delegation and the one is that if the
legislative policy is enunciated with sufficient clearness
or a standard is laid down, the courts should not
interfere. No straitjacket formula can be laid down as to
what guidance should be given or to what extent. The
guidance given in a particular case will depend upon a
consideration of the provisions of a particular Act with
which the Court has to deal including its preamble.
Thus, it will depend upon the circumstances of each
Statute under consideration.
78. The broad guidelines noted in paragraphs ‘178 to 194’
Page 143 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
have been placed before us which is being extracted
hereinunder :-
“178. This Court after considering various earlier cases
including Hamdard Dawakhana23 observed thus : (Birla
Cotton, Spg. & Wvg. Mills case [MCD v. Birla Cotton,
Spg. & Wvg. Mills37], AIR p. 1244, paras 28-29)“28. A review of these authorities therefore leads
to the conclusion that so far as this Court is
concerned the principle is well established that
essential legislative function consists of the
determination of the legislative policy and its
formulation as a binding rule of conduct and
cannot be delegated by the legislature. Nor is there
any unlimited right of delegation inherent in the
legislative power itself. This is not warranted by
the provisions of the Constitution. The legislature
must retain in its own hands the essential
legislative functions and what can be delegated is
the task of subordinate legislation necessary for
implementing the purposes and objects of the Act.
Where the legislative policy is enunciated with
sufficient clearness or a standard is laid down, the
courts should not interfere. What guidance should
be given and to what extent and whether guidance
has been given in a particular case at all depends
on a consideration of the provisions of the
particular Act with which the Court has to deal
including its Preamble. Further it appears to us
that the nature of the body to which delegation is
made is also a factor to be taken into consideration
in determining whether there is sufficient guidance
in the matter of delegation. 29. What form the
guidance should take is again a matter which
cannot be stated in general terms. It will depend
upon the circumstances of each statute under
consideration; in some cases guidance in broad
general terms may be enough; in other cases more
detailed guidance may be necessary.” (emphasis
supplied)
37
(1968) 3 SCR 251 : AIR 1968 SC 1232Page 144 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
179. K.N. Wanchoo, C.J., speaking for himself and
J.M. Shelat, J. held in Birla Cotton, Spinning and
Weaving Mills37 that where the legislative policy is
enunciated with sufficient clarity or a standard is laid
down, the courts should not interfere. What guidance
should be given and to what extent and whether
guidance has been given in a particular case at all
depends on a consideration of the provisions of the
particular Act with which the Court has to deal,
including its Preamble. They further held that the
nature of the body to which delegation is made is also
a factor to be taken into consideration in determining
whether there is sufficient guidance in the matter of
delegation. The Court further held that what form the
guidance should take is again a matter which cannot
be stated in general terms. It will depend upon the
circumstances of each statute under consideration. It
further held that in some cases guidance in broad
general terms may be enough, in other cases more
detailed guidance may be necessary.
180. The Court further observed thus : Birla Cotton,
Spinning and Weaving Mills37, AIR p. 1245, para 33)“33. The first circumstance which must be taken
into account in this connection is that the
delegation has been made to an elected body
responsible to the people including those who pay
taxes. The Councillors have to go for election every
four years. This means that if they have behaved
unreasonably and the inhabitants of the area so
consider it they can be thrown out at the ensuing
elections. This is in our opinion a great check on
the elected Councillors acting unreasonably and
fixing unreasonable rates of taxation. This is a
democratic method of bringing to book the elected
representatives who act unreasonably in such
matters.”
(emphasis supplied)
181. It was thus found in Birla Cotton, Spinning
and Weaving Mills37 that the delegation was made
Page 145 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
to an elected body responsible to the people
including those who pay taxes. It has been
observed that if the Councillors behave
unreasonably and the inhabitants of the area so
consider it, they can be thrown out at the ensuing
elections. As such, there is a great check on the
elected Councillors acting unreasonably and fixing
unreasonable rates of taxation. This is a democratic
method of bringing to book the elected
representatives who act unreasonably in such
matters.
182. The Court further found that another guide or
control on the limit of taxation is to be found in the
purposes of the Act. After careful consideration of
the various provisions of the Delhi Municipal
Corporation Act, 1957, the Court held that the
power conferred by Section 150 thereof on the
Corporation is not unguided and cannot be said to
be amounting to excessive delegation.
183. It will also be apposite to refer to the
concurring judgment of S.M. Sikri, J., wherein he
observed thus : Birla Cotton, Spinning and Weaving
Mills37, AIR p. 1266, para 111) “111. But assuming
I am bound by authorities of this Court to test the
validity of Section 113(2)(d) and Section 150 of the
Act by ascertaining whether a guide or policy exists
in the Act, I find adequate guide or policy in the
expression “purposes of the Act” in Section 113.
The Act has pointed out the objectives or the
results to be achieved and taxation can be levied
only for the purpose of achieving the objectives or
the results. This, in my view, is sufficient guidance
especially to a self-governing body like the Delhi
Municipal Corporation. It is not necessary to rely
on the safeguards mentioned by the learned Chief
Justice to sustain the delegation.”
(emphasis supplied)
184. S.M. Sikri, J. in his concurring judgment in
Birla Cotton, Spinning and Weaving Mills 37 also
held that he found adequate guide or policy in the
Page 146 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
expression “purposes of the Act” in Section 113. He
observed that the Act has pointed out the
objectives or the results to be achieved and
taxation can be levied only for the purpose of
achieving the objectives or the results. In the view
of his Lordship, this was sufficient guidance
especially to a self-governing body like Delhi
Municipal Corporation.
185. It will also be apposite to refer to the
following observations of M. Hidayatullah, J., in his
concurring judgment : Birla Cotton, Spinning and
Weaving Mills37, AIR pp. 1253-54, paras 56 & 58)
“56. … The question always is whether the
legislative will has been exercised or not. Once it is
established that the legislature itself has willed
that a particular thing be done and has merely left
the execution of it to a chosen instrumentality
(provided that it has not parted with its control)
there can be no question of excessive delegation. If
the delegate acts contrary to the wishes of the
legislature the legislature can undo what the
delegate has done. Even the courts, as we shall
show presently, may be asked to intervene when
the delegate exceeds its powers and functions. …
*** 58. … To insist that the legislature should
provide for every matter connected with municipal
taxation would make municipalities mere tax
collecting departments of the Government and not
self-governing bodies which they are intended to
be. The Government might as well collect the taxes
and make them available to the municipalities. That
is not a correct reading of the history of Municipal
Corporations and other self-governing institutions
in our country.”
(emphasis supplied)
186. Observing thus, M. Hidayatullah, J. also
rejected the contention that provisions of Section
150 suffer from excessive delegation. His Lordship
has observed that once it is established that the
legislature itself has willed that a particular thing
Page 147 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
be done and has merely left the execution of it to a
chosen instrumentality, there can be no question of
excessive delegation. This is, however, subject to
the proviso that the legislature has not parted with
its control. It is observed that if the delegatee acts
contrary to the wishes of the legislature, the
legislature can undo what the delegate has done.
187. Another Constitution Bench of this Court in
Gwalior Rayon Silk Mfg. (Wvg.) Co. [Gwalior Rayon
Silk Mfg. (Wvg.) Co. Ltd. v. CST38] was considering
the validity of Section 8(2)(b) of the Central Sales
Tax Act, 1956 on the ground that it suffered from
the vice of excessive delegation. In the said case,
H.R. Khanna, J., speaking for the majority, after
surveying the earlier judgments of this Court
including that in Birla Cotton, Spinning and
Weaving Mills37, observed thus : Gwalior Rayon Silk
Mfg. (Wvg.) Co.38, SCC pp. 108-09, para 13)
“13. It may be stated at the outset that the growth
of the legislative powers of the Executive is a
significant development of the twentieth century.
The theory of laissez faire has been given a go-by
and large and comprehensive powers are being
assumed by the State with a view to improve social
and economic well-being of the people. Most of the
modern socio-economic legislations passed by the
Legislature lay down the guiding principles and the
legislative policy. The Legislatures because of
limitation imposed upon by the time factor hardly
go into matters of detail. Provision is, therefore,
made for delegated legislation to obtain flexibility,
elasticity, expedition and opportunity for
experimentation. The practice of empowering the
Executive to make subordinate legislation within a
prescribed sphere has evolved out of practical
necessity and pragmatic needs of a modern welfare
State. At the same time it has to be borne in mind
that our Constitution-makers have entrusted the
power of legislation to the representatives of the
people, so that the said power may be exercised
38
(1974) 4 SCC 98 : 1974 SCC (Tax) 226
Page 148 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
not only in the name of the people but also by the
people speaking through their representatives. The
rule against excessive delegation of legislative
authority flows from and is a necessary postulate of
the sovereignty of the people. The rule
contemplates that it is not permissible to substitute
in the matter of legislative policy the views of
individual officers or other authorities, however
competent they may be, for that of the popular will
as expressed by the representatives of the people.”
188. The Court in Gwalior Rayon Silk Mfg. (Wvg.)
Co.38 observed that the growth of the legislative
powers of the Executive is a significant
development of the twentieth century. The theory
of laissez faire has been given a go-by and large
and comprehensive powers are being assumed by
the State with a view to improve social and
economic well-being of the people. It has been held
that most of the modern socio-economic
legislations passed by the Legislature lay down the
guiding principles and the legislative policy. It is
not possible for the Legislatures to go into matters
of detail. Therefore, a provision has been made for
delegated legislation to obtain flexibility, elasticity,
expedition and opportunity for experimentation. It
has been held that the practice of empowering the
Executive to make subordinate legislation within a
prescribed sphere has evolved out of practical
necessity and pragmatic needs of a modern welfare
State. It has been observed that the rule against
excessive delegation of legislative authority flows
from and is a necessary postulate of the
sovereignty of the people. It has been held that the
rule contemplates that it is not permissible to
substitute in the matter of legislative policy the
views of individual officers or other authorities,
however competent they may be, for that of the
popular will as expressed by the representatives of
the people.
189. It has further been observed thus : Gwalior
Page 149 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Rayon Silk Mfg. (Wvg.) Co.38, SCC p. 109, para 15)
“15. The Constitution, as observed by this Court in
Devi Dass Gopal Krishnan v. State of Punjab 39 [Devi
Dass Gopal Krishnan v. State of Punjab] confers a
power and imposes a duty on the legislature to
make laws. The essential legislative function is the
determination of the legislative policy and its
formulation as a rule of conduct. Obviously it
cannot abdicate its functions in favour of another.
But in view of the multifarious activities of a
welfare State, it cannot presumably work out all
the details to suit the varying aspects of a complex
situation. It must necessarily delegate the working
out of details to the executive or any other agency.
But there is danger inherent in such a process of
delegation. An over-burdened legislature or one
controlled by a powerful executive may unduly
overstep the limits of delegation. It may not lay
down any policy at all; it may declare its policy in
vague and general terms; it may not set down any
standard for the guidance of the executive; it may
confer an arbitrary power on the executive to
change or modify the policy laid down by it without
reserving for itself any control over subordinate
legislation. This self-effacement of legislative
power in favour of another agency either in whole
or in part is beyond the permissible limits of
delegation. It is for a court to hold on a fair,
generous and liberal construction of an impugned
statute whether the legislature exceeded such
limits.”
(emphasis supplied)
190. It has been held in Gwalior Rayon Silk Mfg.
(Wvg.) Co.38 that the essential legislative function is
the determination of the legislative policy and its
formulation as a rule of conduct. The legislature
cannot abdicate its functions in favour of another.
However, in view of the multifarious activities of a
welfare State, it cannot presumably work out all
the details to suit the varying aspects of a complex
situation. It must, therefore, necessarily delegate
39
AIR 1967 SC 1895 : (1967) 20 STC 430
Page 150 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
the working out of details to the executive or any
other agency. The Court also cautions about the
danger inherent in the process of delegation. It
observed that an overburdened legislature or one
controlled by a powerful executive may unduly
overstep the limits of delegation. It may not lay
down any policy at all; it may declare its policy in
vague and general terms; it may not set down any
standard for the guidance of the executive; it may
confer an arbitrary power on the executive to
change or modify the policy laid down by it without
reserving for itself any control over subordinate
legislation. It has been held that it is for the court
to hold on a fair, generous and liberal construction
of an impugned statute to examine whether the
legislature exceeded such limits.
191. We may gainfully refer to the following
observations in the concurring judgment of K.K.
Mathew, J. : Gwalior Rayon Silk Mfg. (Wvg.) Co.38,
SCC pp. 121-22, para 57) “57. Delegation of “law-
making” power, it has been said, is the dynamo of
modern Government. Delegation by the legislature
is necessary in order that the exertion of legislative
power does not become a futility. Today, while
theory still affirms legislative supremacy, we see
power flowing back increasingly to the executive.
Departure from the traditional rationalisation of
the status quo arouses distrust. The legislature
comprises a broader cross-section of interests than
any one administrative organ; it is less likely to be
captured by particular interests. We must not,
therefore, lightly say that there can be a transfer of
legislative power under the guise of delegation
which would tantamount to abdication. At the same
time, we must be aware of the practical reality, and
that is, that Parliament cannot go into the details of
all legislative matters. The doctrine of abdication
expresses a fundamental democratic concept but at
the same time we should not insist that law-making
as such is the exclusive province of the legislature.
The aim of Government is to gain acceptance for
objectives demonstrated as desirable and to realise
Page 151 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
them as fully as possible. The making of law is only
a means to achieve a purpose. It is not an end in
itself. That end can be attained by the legislature
making the law. But many topics or subjects of
legislation are such that they require expertise,
technical knowledge and a degree of adaptability to
changing situations which Parliament might not
possess and, therefore, this end is better secured
by extensive delegation of legislative power. The
legislative process would frequently bog down if a
legislature were required to appraise beforehand
the myriad situations to which it wishes a
particular policy to be applied and to formulate
specific rules for each situation. The presence of
Henry VIII clause in many of the statutes is a
pointer to the necessity of extensive delegation.
The hunt by Court for legislative policy or guidance
in the crevices of a statute or the nook and cranny
of its Preamble is not an edifying spectacle. It is
not clear what difference does it make in principle
by saying that since the delegation is to a
representative body, that would be a guarantee
that the delegate will not exercise the power
unreasonably, for, if ex hypothesi the legislature
must perform the essential legislative function, it is
certainly no consolation that the body to which the
function has been delegated has a representative
character. In other words, if, no guidance is
provided or policy laid down, the fact that the
delegate has a representative character could
make no difference in principle.”
(emphasis supplied)
192. Though the learned Judge in Gwalior Rayon
Silk Mfg. (Wvg.) Co.38 cautions against abdication
under the guise of delegation, he also emphasises a
necessity to be aware about the practical reality
i.e. Parliament cannot go into the details of all
legislative matters. The learned Judge observed
that the aim of the Government is to gain
acceptance for objectives demonstrated as
desirable and to realise them as fully as possible.
The learned Judge observed that there are many
Page 152 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
topics or subjects of legislation which are such that
they may require expertise, technical knowledge
and a degree of adaptability to changing situations
which Parliament might not possess and, therefore,
this end is better secured by extensive delegation
of legislative power. It has been held that the
legislative process would frequently bog down if a
legislature were required to appraise beforehand
the myriad situations to which it wishes a
particular policy to be applied and to formulate
specific rules for each situation. The Court further
emphasised for a guidance for the delegate to
exercise the delegated power.
193. This Court, in Registrar of Coop. Societies v.
K. Kunjabmu40[Registrar of Coop. Societies v. K.
Kunjabmu], while reversing the judgment [K.
Kunhambu v. Registrar of Coop. Societies 41] of the
Kerala High Court, which had held Section 60 of
the Madras Cooperative Societies Act, 1932 to be
unconstitutional on the ground of vice of excessive
delegation, observed thus : (SCC pp. 342-43, para
3)
“3. … Executive activity in the field of delegated
or subordinate legislation has increased in
direct, geometric progression. It has to be and
it is as it should be. Parliament and the State
Legislatures are not bodies of experts or
specialists. They are skilled in the art of
discovering the aspirations, the expectations
and the needs, the limits to the patience and the
acquiescence and the articulation of the views
of the people whom they represent. They
function best when they concern themselves
with general principles, broad objectives and
fundamental issues instead of technical and
situational intricacies which are better left to
better equipped full time expert executive
bodies and specialist public servants.
Parliament and the State Legislatures have
40
(1980) 1 SCC 340
41
1969 SCC OnLine Ker 20
Page 153 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
neither the time nor the expertise to be involved
in detail and circumstance. Nor can Parliament
and the State Legislatures visualise and provide
for new, strange, unforeseen and unpredictable
situations arising from the complexity of
modern life and the ingenuity of modern man.
That is the raison d’étre for delegated
legislation. That is what makes delegated
legislation inevitable and indispensable. The
Indian Parliament and the State Legislatures
are endowed with plenary power to legislate
upon any of the subjects entrusted to them by
the Constitution, subject to the limitations
imposed by the Constitution itself. The power to
legislate carries with it the power to delegate.
But excessive delegation may amount to
abdication. Delegation unlimited may invite
despotism uninhibited. So the theory has been
evolved that the legislature cannot delegate its
essential legislative function. Legislate it must
by laying down policy and principle and
delegate it may to fill in detail and carry out
policy. The legislature may guide the delegate
by speaking through the express provision
empowering delegation or the other provisions
of the statute, the Preamble, the scheme or
even the very subject-matter of the statute. If
guidance there is, wherever it may be found,
the delegation is valid. A good deal of latitude
has been held to be permissible in the case of
taxing statutes and on the same principle a
generous degree of latitude must be permissible
in the case of welfare legislation, particularly
those statutes which are designed to further the
directive principles of State policy.”
(emphasis supplied)
194. This Court has observed in K. Kunjabmu
[Registrar of Coop. Societies v. K. Kunjabmu 41] that
the executive activity in the field of delegated or
subordinate legislation has increased in direct,
geometric progression. The Court observed that
Parliament and the State Legislatures are not bodies
Page 154 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
of experts or specialists. It is observed that the
legislative bodies function best when they concern
themselves with general principles, broad objectives
and fundamental issues instead of technical and
situational intricacies which are better left to better
equipped full-time expert executive bodies and
specialist public servants. It has been held that
Parliament and the State Legislatures cannot
visualise and provide for new, strange, unforeseen
and unpredictable situations arising from the
complexity of modern life and the ingenuity of
modern man. It has been further reiterated that
guidance could be found from various factors and
once it is found, the delegation is valid. It has been
held that a good deal of latitude has to be held to be
permissible in the case of taxing statutes and welfare
legislations.
79. Proceeding further, the learned Advocate General has
given a comparison of the statutory provisions under
challenge in almost all the above noted judgments of the
Apex Court relied by the learned Senior counsels for the
petitioners with the statute impugned herein, to argue
that the statement of law in the said cases holding that
there was an interference in the management of the
minority institutions because of the statutory provisions,
was in the nature of the provisions, subject matter of
challenge therein.
80. As to the decisions in Very Rev. Mother Provincial1;
Ahmedabad St. Xavier’s3; Rev. Father W. Proost2;
D.A.V. College25; Gandhi Faiz-e-am-College26, it was
argued that all these decisions can be grouped together
to understand that the statutory provisions under
challenge therein were for altering the constitution of
Governing body or the Managing Council and the
Page 155 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
decision of the Governing body were made subject to
approval of the external agency. Insofar as the
judgment of the Apex Court in All Saints High
School27, there the provision had empowered an
external competent authority appointed by the State
Government to take final decision on the dismissal,
removal or reduction in rank or termination of teachers.
In the decisions in N. Ammad5, Board of Secondary
Education and Teachers Training6 and Secy.,
Malankara Syrian Catholic College 10, the issue was
about imposing a candidate as a principal or teacher, by
providing appointment on the basis of seniority. In
Sindhi Education Society13, the statutory provision
mandated for appointment of a candidate applying
reservation to minority institution. In Chandana Das15,
the controversy was whether the petitioner institution
therein had impliedly surrendered its minority status
because of grant by the State.
81. All these judgments, however, proceeded on the core
principle that the State has power to regulate, which
must be circumscribed by the rights guaranteed under
Article 30(1) of the Constitution of India.
82. It was then argued that insofar as the impugned Rules’
2021 herein framed by the State Government under
Section 35 of the Act’ 1972 are concerned, these rules
do not deal with the constitution of the Governing body
of the minority educational institutions and the
management has been left to completely govern their
own institutions. The plea of control by outside
Page 156 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
authority in the selection of principal and teachers by
providing constitution of Minority selection committee
under Rule 7 of the Rules, 2021 is without any basis as
demonstrated herein-before. These rules do not
encroach upon any area which can be said to be an
interference with the day-to-day management of minority
institutions or their right to administer protected under
Article 30. Tested on the anvil of Article 30 of the
Constitution of India, a balance has to be kept between
the two objectives; that of ensuring standards of
excellence of the institution and preserving the rights of
the minorities to establish and administer their
educational institutions. Regulations that embraced and
reconciled the two objectives cannot be said to be
unreasonable.
83. It must be held that the right to administer, which is not
absolute, but subject to reasonable regulations for the
benefit of the institutions making them the vehicles of
education consistent with the National interest has been
guaranteed and not infringed with by the State of
Gujarat with the amendment of Section 40-A and the
recruitment rules framed under Section 35 of the Act’
1972.
84. In rejoinder, the learned Senior counsels appearing for
the parties have reiterated the submissions noted
hereinbefore and further urged that the court has to
read the rules under challenge holistically to examine as
to whether a case of substantial interference or inroad is
Page 157 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
made out. The State though can regulate by prescribing
regulations which may withstand the test of scrutiny
under Article 30(1), but the State cannot be the
watchdog throughout. The present is an open and shut
case of inroad into the affairs of the minority institution
and the impugned legislation, therefore, cannot
withstand the dual test of reasonableness and the need
to regulate.
F. DISCUSSION AND ANALYSIS
85. It may be pertinent to note, before proceeding further
that there is no dispute before us that the petitioners
institutions are recognized minority institutions
(religious and linguistic) entitled to the protection of
Clause (1) of Article 30 of the Constitution of India. They
are receiving grant-in-aid from the State Government.
The dispute revolves around the right of minority
educational institutions to administer or manage the
affairs of the institutions of their choice. The question
esentially is about the extent of the power of the State to
frame regulations which may not interfere in the
fundamental right of the minorities and the expanse of
the freedom of minorities to choose the teachers and
Principals for the minorities institutions of their choice.
The question is whether the regulations framed by the
State of Gujarat, in any manner, curtail or impinge upon
the rights of management or the governing body of the
minority educational institutions to manage their own
institutions.
Page 158 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
86. On an exhaustive discussion on the arguments of the
learned Senior Counsels for the parties and having gone
through the judicial pronouncements on the subjects, we
find that the law developed by the Apex Court, for better
understanding, can be categorised in three regimes
beginning from the year 1969:-
(i) Pre TMA Pai Foundation regime. (from 1969 –
1998)
(ii) TMA Pai Foundation regime. (from 2002 – 2003)
(iii) Post TMA Pai Foundation regime. (from 2004 –
until the date)
87. The principles governing the rights of minorities to
administer their institutions enshrined in Article 30(1),
the nature and extent of the same, have been elaborated
with the basic principles stated by the Apex Court, which
can be summarised as under:-
(i) The fundamental concept of equality under Article
30(1): particularly in the matter of recognition,
affiliation and grant-in-aid from the State;
(ii) The autonomy of recognized private educational
institutions: aided and unaided;
(iii) The concept of standards/excellence of education:
freedom to administer vis-a-vis: National interest;.
(iv) The test of reasonableness : permissible fetters on
the minorities rights under Article 30(1) underPage 159 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
regulations framed by the State;
(v) Right to administer: Right to choose Principals /
Headmaster / Teachers by minority institutions;
(i) The Equality Principle
(A) Rev Father W. Proost2:-
88. In the year 1969, five judges Bench of the Apex Court in
Rev Father W. Proost2 had rejected the argument of
the State that the protection granted by Article 30(1) is a
corollary taken from Article 29 (1) and the protection to
minorities under Section 30 (1) is confined to the right to
conserve a distinct language, script or culture of its own,
within the contours of the protection granted in Article
29 (1); only such educational institutions, which are
furthering the rights mentioned in Article 29(1) be
entitled to protection granted by Article 30(1). It was
stated therein in Paragraph Nos. ‘8’ and ’11’ as under:-
“8. In our opinion the width of Article 30(1) cannot be
cut down by introducing in it considerations on which
Article 29(1) is based. The latter article is a general
protection which is given to minorities to conserve
their language, script or culture. The former is a
special right to minorities to establish educational
institutions of their choice. This choice is not limited
to institution seeking to conserve language, script or
culture and the choice is not taken away if the
minority community having established an
educational institution of its choice also admits
members of other communities. That is a
circumstance irrelevant for the application of Article
30(1) since no such limitation is expressed and none
can be implied. The two articles create two separate
rights, although it is possible that they may meet in aPage 160 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
given case.”
“11. In our judgment the language of Article 30(1) is
wide and must receive full meaning. We are dealing
with protection of minorities and attempts to whittle
down the protection cannot be allowed. We need not
enlarge the protection but we may not reduce a
protection naturally flowing from the words. Here the
protection clearly flows from the words and there is
nothing on the basis of which aid can be sought from
Article 29(1).”
(B) Ahmedabad St. Xavier’s3 :-
89. Nine Judges Constitution bench of the Apex Court, by
majority, discussed on all aspects of equality under
Article 30(1) while deliberating on the right to establish
and administer educational institutions by the
minorities. Reiterating the abovenoted law stated in
Rev Father W. Proost2. A.N.Ray CJ, speaking for
himself and D.G. Palekar J. discussed the scope of
Article 30(1) whether circumscribed by Article 29(1) in
the following manner:-
“6. It will be wrong to read Article 30(1) as
restricting the right of minorities to establish and
administer educational institutions of their choice
only to cases where such institutions are concerned
with language, script or culture of the minorities.
The reasons are these. First, Article 29 confers the
fundamental right on any section of the citizens
which will include the majority section whereas
Article 30(1) confers the right on all minorities.
Second, Article 29(1) is concerned with language,
script or culture, whereas Article 30(1) deals with
minorities of the nation based on religion or
language. Third, Article 29(1) is concerned with the
right to conserve language, script or culture,
whereas Article 30(1) deals with the right to
establish and administer educational institutions ofPage 161 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
the minorities of their choice. Fourth, the
conservation of language, script or culture under
Article 29(1) may be by means wholly unconnected
with educational institutions and similarly
establishment and administration of educational
institutions by a minority under Article 30(1) may
be unconnected with any motive to conserve
language, script or culture. A minority may
administer an institution for religious education
which is wholly unconnected with any question of
conserving a language, script or culture.
7. If the scope of Article 30(1) is to establish and
administer educational institutions to conserve
language, script or culture of minorities, it will
render Article 30 redundant….
“8. The right to establish and administer
educational institutions of their choice has been
conferred on religious and linguistic minorities so
that the majority who can always have their rights
by having proper legislation do not pass a
legislation prohibiting minorities to establish and
administer educational institutions of their choice.
If the scope of Article 30(1) is made an extension of
the right under Article 29(1) as the right to
establish and administer educational institutions
for giving religious instruction or for imparting
education in their religious teachings or tenets, the
fundamental right of minorities to establish and
administer educational institutions of their choice
will be taken away.
9. Every section of the public, the majority as well
as minority has rights in respect of religion as
contemplated in Articles 25 and 26 and rights in
respect of language, script, culture as
contemplated in Article 29. The whole object of
conferring the right on minorities under Article 30
is to ensure that there will be equality between the
majority and the minority. If the minorities do not
have such special protection they will be denied
equality.”
Page 162 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
90. Referring to the decision in Re:The Kerala Education
Bill, 19574, wherein it is said that Article 30(1) covers
institutions imparting general secular education, it was
noted in Paragraph ’10’ therein that:-
“10.In Re The Kerala Education Bill, 19574, this
Court said that Article 30(1) covers institutions
imparting general secular education. The object of
Article 30 is to enable children of minorities to go
out in the world fully equipped. All persons
whether in the majority or in the minority have the
right under Article 25 freely to profess, practise
and propagate religion. Any section of citizens
which includes the majority as well as the minority
shall have under Article 29 the right to conserve
their distinct language, script or culture. That is
why the minorities are given a specific right in
respect of educational institutions under Article 30.
Article 30(1) gives the right to linguistic minorities
as well where no question of religion arises. It is,
therefore, not at all possible to exclude secular
education from Article 30. Since the Kerala
Education Bill case in 1959 this Court has
consistently held that general secular education is
covered by Article 30.”
91. It was stated in Paragraph No. ’12’ that:-
“12. The real reason embodied in Article 30(1) of
the Constitution is the conscience of the nation that
the minorities, religious as well as linguistic, are
not prohibited from establishing and administering
educational institutions of their choice for the
purpose of giving their children the best general
education to make them complete men and women
of the country. The minorities are given this
protection under Article 30 in order to preserve
and strengthen the integrity and unity of the
country. The sphere of general secular education is
intended to develop the commonness of boys andPage 163 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
girls of our country. This is in the true spirit of
liberty, equality and fraternity through the medium
of education. If religious or linguistic minorities are
not given protection under Article 30 to establish
and administer educational institutions of their
choice, they will feel isolated and separate. General
secular education will open doors of perception and
act as the natural light of mind for our countrymen
to live in the whole.”
92. Justice Khanna, in his concurring judgment, impressed
upon with the idea of equality in the following manner:-
“77.The idea of giving some special rights to the
minorities is not to have a kind of a privileged or
pampered section of the population but to give to
the minorities a sense of security and a feeling of
confidence. The great leaders of India since time
immemorial had preached the doctrine of tolerance
and catholicity of outlook. Those noble ideas were
enshrined in the Constitution. Special rights for
minorities were designed not to create inequality.
Their real effect was to bring about equality by
ensuring the preservation of the minority
institutions and by guaranteeing to the minorities
autonomy in the matter of the administration of
those institutions. The differential treatment for the
minorities by giving them special rights is intended
to bring about an equilibrium, so that the ideal of
equality may not be reduced to a mere abstract
idea but should become a living reality and result
in true, genuine equality, an equality not merely in
theory but also in fact. The majority in a system of
adult franchise hardly needs any protection. It can
look after itself and protect its interests. Any
measure wanted by the majority can without much
difficulty be brought on the statute book because
the majority can get that done by giving such a
mandate to the elected representatives. It is only
the minorities who need protection, and Article 30,
besides some other articles, is intended to afford
and guarantee that protection.
Page 164 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
89…….The minorities are as much children of the
soil as the majority and the approach has been to
ensure that nothing should be done as might
deprive the minorities of a sense of belonging, of a
feeling of security, of a consciousness of equality
and of the awareness that the conservation of their
religion, culture, language and script as also the
protection of their educational institutions is a
fundamental right enshrined in the
Constitution…….The safeguarding of the interest of
the minorities amongst sections of population is as
important as the protection of the interest amongst
individuals of persons who are below the age of
majority or are otherwise suffering from some kind
of infirmity. The Constitution and the laws made by
civilised nations, therefore, generally contain
provisions for the protection of those interests. It
can, indeed, be said to be an index of the level of
civilisation and catholicity of a nation as to how far
their minorities feel secure and are not subject to
any discrimination or suppression.”
(emphasis supplied)
93. Mathew J., while deliberating on the real reason for
protection of minorities in a democratic policy noted in
Paragraphs ‘131’ to ‘133’ as under:-
“131.It is necessary in the interest of clarity of
thought to begin with an understanding of the real
reason for protection of minorities in a democratic
polity.
“Protection of minorities is the protection of
non-dominant groups, which, while wishing in
general for equality of treatment with the majority,
wish for a measure of differential treatment in
order to preserve basic characteristics which they
possess and which distinguish them from the
majority of the population. The protection applies
equally to individuals belonging to such groups and
wishing the same protection. It follows that
differential treatment of such groups or ofPage 165 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
individuals belonging to such groups is justified
when it is exercised in the interest of their
contentment and the welfare of the community as a
whole.”
132. The problem of the minorities is not really a
problem of the establishment of equality because if
taken literally, such equality would mean absolute
identical treatment of both the minorities and the
major ities. This would result only in equality in law
but inequality in fact. The distinction need not be
elaborated for it is obvious that “equality in law
precludes discrimination of any kind; whereas
equality in fact may involve the necessity of
differential treatment in order to attain a result
which establishes an equilibrium between different
situations.”
133. It may sound paradoxical but it is nevertheless
true that minorities can be protected not only if
they have equality but also, in certain
circumstances, differential treatment.”
94. Beg’ J, though wrote a dissenting judgment on the main
challenge but on the question whether the rights
guaranteed by Article 30 are, in any way, circumscribed
by Article 29, stated that:-
“198….I am in entire agreement with the view that,
although, Articles 29 and 30 may supplement each
other so far as certain rights of minorities are
concerned, yet, Article 29 of the Constitution does
not, in any way, impose a limit on the kind or
character of education which a minority may
choose to impart through its Institution to the
children of its own members or to those of others
who may choose to send their children to its
schools. In other words, it has a right to impart a
general secular education…..”
95. The next question which arose in the Ahmedabad, St.
Page 166 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Xavier’s3 was whether religious and linguistic
minorities, who have the right to establish and
administer educational institutions of their choice, have
a fundamental right to affiliation. Another ancillary
question was that, where a minority institution has, of its
own free will, opted for affiliation under the terms of a
statute. it must be deemed to have chosen to give up, as
a price for the benefits resulting from affiliation, the
exercise of certain rights which may in another context,
appear to be unwarranted impairments of its
fundamental rights. In other words, the questions were
whether there is a fundamental right of a minority
institution to affiliation and further whether the price of
affiliation can be a total abandonment of the right to
establish and administer a minority institution conferred
by Article 30(1) of the Constitution. Considering the
purpose of affiliation while taking the view that there is
no fundamental right of a minority institution to
affiliation, it was observed in Paragraph Nos. ’14, 15, 16
and 17′ as under:-
14. The consistent view of this Court has been that
there is no fundamental right of a minority
institution to affiliation. An explanation has been
put upon that statement of law. It is that affiliation
must be a real and meaningful exercise for minority
institutions in the matter of imparting general
secular education. Any law which provides for
affiliation on terms which will involve abridgement
of the right of linguistic and religious minorities to
administer and establish educational institutions of
their choice will offend Article 30(1). The
educational institutions set up by minorities will be
robbed of their utility if boys and girls cannot bePage 167 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
trained in such institutions for University degrees.
Minorities will virtually lose their right to equip
their children for ordinary careers if affiliation be
on terms which would make them surrender and
lose their rights to establish and administer
educational institutions of their choice under
Article 30. The primary purpose of affiliation is that
the students reading in the minority institutions
will have qualifications in the shape of degrees
necessary for a useful career in life. The
establishment of a minority institution is not only
ineffective but also unreal unless such institution is
affiliated to a University for the purpose of
conferment of degrees on students.
15. Affiliation to a University really consists of two
parts. One part relates to syllabi, curricula, courses
of instruction, the qualifications of teachers,
library, laboratories, conditions regarding health
and hygiene of students. This part relates to
establishment of educational institutions. The
second part consists of terms and conditions
regarding management of institutions. It relates to
administration of educational institutions.
16. With regard to affiliation a minority institution
must follow the statutory measures regulating
educational standards and efficiency, the
prescribed courses of study, courses of instruction
and the principles regarding the qualification of
teachers, educational qualifications for entry of
students into educational institutions etc.
17. When a minority institution applies to a
University to be affiliated, it expresses its choice to
participate in the system of general education and
courses of instruction prescribed by that
University. Affiliation is regulating courses of
instruction in institutions for the purpose of
coordinating and harmonising the standards of
education. With regard to affiliation to a University,
the minority and non-minority institutions must
agree in the pattern and standards of education.
Page 168 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Regulatory measures of affiliation enable the
minority institutions to share the same courses of
instruction and the same degrees with the non-
minority institutions.”
96. It was held by Ray’ CJ that any law which provides for
affiliation on terms which will involve abridgement of the
right of linguistic and religious minorities to administer
and establish educational institutions of their choice will
offend Article 30(1). It was observed that minorities will
virtually loose their right to equip their children for
ordinary careers if affiliation be on terms which would
make them surrender and loose their rights to establish
and administer educational institutions of their choice
under Article 30. The primary purpose of affiliation is
that the students studying in the minority institutions
will have qualifications in the shape of degrees
necessary for a useful career in life. The establishment
of a minority institution is not only be ineffective but also
unreal unless such institution is affiliated to a University
for the purpose of conferment of degrees on students.
97. Noticing the observations of the Apex Court in Very
Rev. Mother Provincial1, it was noted that the
affiliation of minorities institutions is intended to ensure
the growth and excellence of their children and other
students in the academic field. It was, further, noted that
(Para 18) :-
“18……Affiliation mainly pertains to the academic
and educational character of the institution.
Therefore, measures which will regulate the
courses of study, the qualifications and
appointment of teachers, the conditions ofPage 169 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
employment of teachers, the health and hygiene of
students, facilities for libraries and laboratories 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.”
98. The observations of Das’ CJ in the first case of 1958 in
Re: Kerala Education Bill4 were noted in paragraph
No.’56’, wherein it was held that:-
“56…..”There is, no doubt, no such thing as
fundamental right to recognition by the State but
to deny recognition to the educational institutions
except upon terms tantamount to the surrender of
their constitutional right of administration of the
educational institutions of their choice is in truth
and in effect to deprive them of their rights under
Article 30(1)…….”
99. It was, thus, held that without recognition, the
educational institutions established or to be established
by the minority communities cannot fulfill real object of
their choice and that the right under Article 30(1)
cannot be effectively exercised. The right to establish
educational institutions of their choice means the right
to establish real institutions which will effectively serve
the needs of their community and the scholars, who
resort to their educational institutions.
100. On the question of recognition, in the context of the
rights conferred by Article 30, it was held by Khanna’ J
in Paragraph No.’98’ as:-
“98……So far as this aspect is concerned, I am of
the view that it is permissible for the State toPage 170 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
prescribe reasonable regulations like the one to
which I have referred earlier and make it a
condition precedent to the according of recognition
or affiliation to a minority institution. It is not,
however, permissible to prescribe conditions for
recognition or affiliation which have the effect of
impairing the right of the minority to establish and
administer their educational institutions. Affiliation
and recognition are, no doubt, not mentioned in
Article 30(1), the position all the same remains that
refusal to recognize or affiliate minority institutions
unless they (the minorities) surrender the right to
administer those institutions would have the effect
of rendering the right guaranteed by Article 30(1)
to be wholly illusory and indeed a teasing illusion.
It is, in our opinion, not permissible to exact from
the minorities in lieu of the recognition or
affiliation of their institutions a price which would
entail the abridgement or extinguishment of the
right under Article 30(1). An educational institution
can hardly serve any purpose or be of any practical
utility unless it is affiliated to a University or is
otherwise recognised like other educational
institutions. The right conferred by Article 30 is a
real and meaningful right. It is neither an abstract
right nor is it to be exercised in vacuum. Article
30(1) was intended to have a real significance and
it is not permissible to construe it in such a manner
as would rob it of that significance…..”
101. Mathew’ J, dealt with the arguments that there is no
fundamental right to recognition or affiliation, the
Government may withhold recognition or affiliation for
any reason or impose any condition for the same, and
consequently, it may withhold or revoke it even though
the reason for doing so may be the minorities’ refusal to
surrender its constitutional right to administer the
institution. The argument was that the religious or
linguistic minorities being recipient of the benefit or
Page 171 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
facility, may simply reject the proffered benefit or
facility, it if deprive of its fundamental rights. It was
answered in paragraph No. ‘163’ that:-
“163. It is doubtful whether the fundamental right
under Article 30(1) can be bartered away or
surrendered by any voluntary act or that it can be
waived. The reason is that the fundamental right is
vested in a plurality of persons as a unit or if we
may say so, in a community of persons necessarily
fluctuating. Can the present members of a minority
community barter away or surrender the right
under the article so as to bind its future members
as a unit? The fundamental right is for the living
generation. By a voluntary act of affiliation of an
educational institution established and
administered by a religious minority the past
members of the community cannot surrender the
right of the future members of that community. The
future members of the community do not derive the
right under Article 30(1) by succession or
inheritance.”
102. It was further held in Paragraph No.’176′ as under:-
“176. Recognition or affiliation is granted on the
basis of the excellence of an educational
institution, namely, that it has reached the
educational standard set up by the university.
Recognition or affiliation is sought for the purpose
of enabling the students in an educational
institution to sit for an examination to be
conducted by the university and to obtain a degree
conferred by the university. . For that purpose, the
students should have to be coached in such a
manner so as to attain the standard of education
prescribed by the university. Recognition or
affiliation creates an interest in the university to
ensure that the educational institution isPage 172 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
maintained for the purpose intended and any
regulation which will subserve or advance that
purpose will be reasonable and no educational
institution established and administered by a
religious or linguistic minority can claim
recognition or affiliation without submitting to
those regulations. That is the price of recognition
or affiliation: but this does not mean that it should
submit to a regulation stipulating for surrender of a
right or freedom guaranteed by the Constitution,
which is unrelated to the purpose of recognition or
affiliation. In other words, recognition or affiliation
is a facility which the university grants to an
educational institution, for the purpose of enabling
the students there to sit for an examination to be
conducted by the university in the prescribed
subjects and to obtain the degree conferred by the
university, and therefore, it stands to reason to
hold that no regulation which is unrelated to the
purpose can be imposed. If, besides recognition or
affiliation, an educational institution conducted by
a religious minority is granted aid, further
regulations for ensuring that the aid is utilized for
the purpose for which it is granted will be
permissible…..”
103. It was, thus, concluded that the meaningful exercise of
the right under Article 30(1) would and must necessarily
involve recognition of the secular education imparted by
the minority institutions without which the right would
be wholly illusory and indeed a teasing illusory. All
attempts to make affiliation or recognition on terms
tantamount to surrender of its rights under Article 30(1)
as abridging or taking away those rights, have to be
struck down. As without affiliation, there can be no
Page 173 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
meaningful exercise of the right under Article 30 (1) ,
the affiliation to be given should be consistent with that
right. It cannot be, indirectly, tried to achieve when it
cannot directly do. Paragraph No. ’29’ in the judgment of
Ray’ J, be noted as under:-
“29. The decision of this Court in Rev. Siddhajbhai
Sabhai v. State of Bombay42 illustrates as to how
the right of the minority institution is violated by
the State order requiring the minority institution to
reserve under orders of Government 80 per cent of
the seats on threat of withholding grant-in-aid for
non-compliance with the order. This Court in
Kerala Education Bill case said that the State
cannot do indirectly what it cannot do directly.
Withholding aid on terms which demand the
surrender of the right of the minority to administer
the institution is an infringement of the right under
Article 30.”
104. The equality principle stated be noted hereinunder:-
138. As we look at it, Article 30(1) is a sort of
guarantee or assurance to the linguistic and
religious minority institutions of their right to
establish and administer educational institutions of
their choice. Secularism and equality being two of
the basic features of the Constitution, Article 30(1)
ensures protection to the linguistic and religious
minorities, thereby preserving the secularism of
the country. Furthermore, the principles of equality
must necessarily apply to the enjoyment of such
rights. No law can be framed that will discriminate
against such minorities with regard to the
establishment and administration of educational
institutions vis-à-vis other educational institutions.
Any law or rule or regulation that would put the
educational institutions run by the minorities at a
42
1962 SCC OnLine SC 150 : AIR 1963 SC 540
Page 174 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
disadvantage when compared to the institutions
run by the others will have to be struck down. At
the same time, there also cannot be any reverse
discrimination. It was observed in St. Xavier’s
College case3 at SCR p. 192 that : (SCC p. 743,
para 9)
“The whole object of conferring the right on
minorities under Article 30 is to ensure that there
will be equality between the majority and the
minority. If the minorities do not have such special
protection they will be denied equality.”
In other words, the essence of Article 30(1) is to
ensure equal treatment between the majority and
the minority institutions. No one type or category
of institution should be disfavoured or, for that
matter, receive more favourable treatment than
another. Laws of the land, including rules and
regulations, must apply equally to the majority
institutions as well as to the minority institutions.
The minority institutions must be allowed to do
what the non-minority institutions are permitted to
do.”
(ii) The Autonomy of recognized institutions: Aided and
Unaided:-
(a) Ahmedabad St. Xavier’s3 :-
105. The autonomy in administration was explained by A.N.
Ray’ C.J. in the Ahmedabad St. Xavier’s3, in Paragraph
No.’41’ as under:-
“41. Autonomy in administration means right to
administer effectively and to manage and conduct
the affairs of the institutions. The distinction is
between a restriction on the right of administration
and a regulation prescribing the manner of
administration. The right of administration is day to
day administration. The choice in the personnel ofPage 175 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
management is a part of the administration. The
university will always have a right to see that there
is no mal-administration. If there is mal-
administration, the university will take steps to
cure the same. There may be control and check on
administration in order to find out whether the
minority institutions are engaged in activities
which are not conducive to the interest of the
minority or to the requirements of the teachers and
the students. In State of Kerala v. Very Rev. Mother
Provincial, this Court said that if the administration
goes to a body in the selection of whom the
founders have no say, the administration would be
displaced. This Court also said that situations
might be conceived when they might have a
preponderating voice. That would also effect the
autonomy in administration. The provisions
contained in Section 33-A(1)(a) of the Act have the
effect of displacing the management and entrusting
it to a different agency. The autonomy in
administration is lost. New elements in the shape
of representatives of different types are brought in.
The calm waters of an institution will not only be
disturbed but also mixed. These provisions in
Section 33-A(1)(a) cannot therefore apply to
minority institutions.”
106. In TMA Pai Foundation7, the question before the
Constitution Bench was about the right to establish and
administer about the autonomy to provide educational
institution (both aided and unaided), established by
minorities and non-minorities to administer their
educational institutions unhampered by rules and
regulations that unnecessarily impinge upon their
autonomy. The Apex Court had examined the nature and
extent of the regulations that can be framed by the State
Page 176 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
university or the affiliating body, while granting
recognition or affiliation to private educational
institutions (both aided and unaided) established and
administered by religious and linguistic minorities, as
well as non-minorities.
107. While it was held that the conditions of affiliation or
recognition, which pertains to the academic and
educational character of the institution and ensure
uniformity, efficiency and excellence in educational
courses are valid, and that they do not violate even the
provisions of Article 30 of the Constitution; but
conditions that are laid down for granting recognition
should not be such as may lead to governmental control
of the administration of the private institution. With
respect to private aided non-minority institution, it was
held that while giving aid, it would be permissible for the
authority giving aid to prescribe by rules or regulations,
as a condition of grant of aid for the proper maintenance
of the high standards of education as the financial
freedom is shared by the State.
108. The State, in the case of such aided institutions, has
ample power to provide rules and regulations that
promote good administration and prevent
maladministeration, so as to promote efficiency of
teachers, discipline and fairness in administration and to
preserve harmony among the affiliated institution, but
even such an aided institution does not become a
government owned and controlled institution.
Page 177 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
109. The autonomy of a private aided institution, however,
would be less than that of an unaided institution,
inasmuch as, the Government would be entitled to make
regulations relating to the terms and conditions of
employment of the teaching and non-teaching staff
whenever the aid for the posts is given by the State.
Such rules and regulations can also provide for the
reasons and the manner in which the teacher or any
other member of the staff can be removed.
110. The question whether Article 30 gives a right to ask for
grant or aid from the State and further, to what extent
its autonomy in administration can be curtailed or
regulated had been considered in TMA Pai
Foundation7, specifically in the matter of admission to
educational institutions established by minority
community. While answering, it was said that the grant
of aid is not a constitutional imperative. Article 30 (1)
would not justify a demand for aid, and it cannot be said
that the absence of aid makes the right under Article
30(1) illusory. However, a minority institution shall not
be discriminated against when aid to educational
institution is granted. When the State chooses to grant
aid to educational institutions, it cannot deny aid to a
religious or linguistic minority institution only on the
ground that the management of that institution is with
the minority.
111. It was held that if an abject surrender of the right to
management is made a condition of aid, the denial of aid
Page 178 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
would be violative of Article 30(2). However, conditions
of aid that do not involve a surrender of the substantial
right of management would not be inconsistent with
constitutional guarantees, even if they indirectly impinge
upon some facet of administration. The relevant
observations of the Apex Court in the Paragraph Nos.
142, 143 and 144 in the judgment of TMA Pai
Foundation7 are extracted herein under:-
“142.The implication of Article 30(2) is also that it
recognizes that the minority nature of the
institution should continue, notwithstanding the
grant of aid. In other words, when a grant is given
to all institutions for imparting secular education, a
minority institution is also entitled to receive it,
subject to the fulfilment of the requisite criteria,
and the State gives the grant knowing that a
linguistic or minority educational institution will
also receive the same. Of course, the State cannot
be compelled to grant aid, but the receipt of aid
cannot be a reason for altering the nature or
character of the recipient educational institution.
143.This means that the right under Article 30(1)
implies that any grant that is given by the State to
the minority institution cannot have such
conditions attached to it, which will in any way
dilute or abridge the rights of the minority
institution to establish and administer that
institution. The conditions that can normally be
permitted to be imposed, on the educational
institutions receiving the grant, must be related to
the proper utilization of the grant and fulfilment of
the objectives of the grant. Any such secular
conditions so laid, such as a proper audit with
regard to the utilization of the funds and the
manner in which the funds are to be utilized, will
be applicable and would not dilute the minority
status of the educational institutions. SuchPage 179 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
conditions would be valid if they are also imposed
on other educational institutions receiving the
grant.
144.It cannot be argued that no conditions can be
imposed while giving aid to a minority institution.
Whether it is an institution run by the majority or
the minority, all conditions that have relevance to
the proper utilization of the grant-in-aid by an
educational institution can be imposed. All that
Article 30(2) states is that on the ground that an
institution is under the management of a minority,
whether based on religion or language, grant of aid
to that educational institution cannot be
discriminated against, if other educational
institutions are entitled to receive aid. The
conditions for grant or non-grant of aid to
educational institutions have to be uniformly
applied, whether it is a majority-run institution or a
minority-run institution….”
112. The balance struck by the Apex Court in the matter of
grant of recognition, affiliation and grant-in-aid from the
State to the minority institutions covered under Article
30 (1) is, thus, on the fundamental principle that the
minority institution cannot be discriminated. The
conditions for affiliation, recognition and for grant-in-aid
to educational institutions have to be uniformly applied
whether it is a majority run institution or minority run
institution.
113. On the one hand, the minority institution cannot be
denied such privilege on the ground that the educational
institution is under the management of a minority, on
the other, the State cannot be compelled to grant aid.
The receipt of aid or grant of recognition or affiliation
Page 180 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
cannot be a reason for altering the nature or character
of the recipient educational institution. The conditions
for grant of recognition, affiliation or grant-in-aid, if
such, which abridge the right of minority to run the
educational institution of their choice or to barter away
or surrender their right under Article 30 (1), shall be
violative of the said provision.
114. The principle laid down by the Apex Court in the
Ahmedabad St. Xavier’s3 of the right of minorities to
seek recognition or affiliation and in the matter of grant
of aid has been reiterated and reaffirmed in TMA Pai
Foundation7, while answering the question as to the
extent of interference by the State in the autonomy in
administration of minority and educational institutions
receiving grant-in-aid. It is, thus, well established
principle of law that no educational institution
established by religious or linguistic minority can claim
total immunity from the regulations by the legislature or
uniformity, if it wants affiliation or recognition; but the
character of the permissible regulations must depend
upon their purpose. Such regulations will be permissible
if they are relevant to the purpose of securing or
promoting the object of recognition or affiliation. While
granting aid, the State cannot have such conditions
attached to it, which will, in any way, dilute or abridge
the rights of minorities institutions to establish and
administer that institution.
115. The regulations, which sub-serve the purpose of
Page 181 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
recognition or affiliation, namely the excellence of an
institute as a vehicle for general secular education to the
minority community and to other persons, who resort to
it, will be saved. The regulations, which may lawfully be
imposed either by legislative or executive action as a
condition of receiving grant or of recognition must be
attracted to making institution while retaining its
character as a minority institution effective as an
educational institution. It was clarified by the Apex
Court in Ahmedabad St. Xavier’s3 that the question
whether a particular regulation is calculated to advance
the general public interest is of no consequence if it is
not conducive to the interests of the minority community
and those persons who resort to it. The only permissible
regulations are those, which secure the effectiveness of
the purpose of the facility namely the excellence of the
educational institutions in respect of their educational
standards.
(iii) Standards/Excellence of Education vis-a-vis freedom to
administer:-
116. Elaborating on the concept of excellence in education, a
view was expressed by Ray’ CJ in Ahmedabad St.
Xavier’s3 that the right implies the obligation and duty
of the minority institutions to render the very best to the
students. The educational institutions are temples of
learning. The virtues of human intelligence are mastered
and harmonized by education. Where there is complete
harmony between the teacher and the taught, where the
Page 182 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
teacher imparts and the student receives, where there is
complete dedication of the teacher and the taught in
learning, where there is discipline: between the teacher
and the taught, where both are worshipers of learning,
no discord or challenge will arise. An educational
institution runs smoothly when the teacher and the
taught are engaged in the, common ideal of pursuit of
knowledge. It is, therefore, manifest that the
appointment of teachers is an important part in
educational institutions. The, qualifications and the
character of the teachers are really important. The
minority institutions have the right to administer
institutions. In the right of administration, checks and
balances in the shape of regulatory measures are
required to ensure the appointment of good teachers
and their conditions of service. The right to administer is
to be tempered with regulatory measures to facilitate
smooth administration. It was observed that (Para. ’31
and 32′):-
“31.Regulations which will serve the interests of
the students, regulations which will serve the
interests of the teachers are of paramount
importance in good administration. Regulations in
the interest of efficiency of teachers, discipline and
fairness in administration are necessary for
preserving harmony among affiliated institutions.
32.Education should be a great cohesive force in
developing integrity of the nation. Education
develops the ethos of the nation. Regulations are,
therefore, necessary to see that there are no
divisive or disintegrating forces in administration.”
Page 183 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
117. While deliberating on the autonomy in administration
vis.a.vis excellence and uniformity in standards of
education, it was further observed in Paragraph Nos.
’46, 47 and 48′ as under:-
“46.The ultimate goal of a minority institution too
imparting general secular education is
advancement of learning. This Court has
consistently held that it is not only permissible but
also desirable to regulate everything in educational
and academic matters for achieving excellence and
uniformity in standards of education.
47.In the field of administration it is not reasonable
to claim that minority institutions will have
complete autonomy. Checks on the administration
may be necessary in order to ensure that the
administration is efficient and sound and will serve
the academic needs of the institution. The right of a
minority to administer its educational institution
involves, as part of it, a correlative duty of good
administration.
48.The teachers and the taught form a world of
their own where everybody is a votary of learning.
They should not be made to know any distinction.
Their harmony rests on dedicated and disciplined
pursuit of learning. The areas of administration of
minorities should be adjusted to concentrate on
making learning most excellent. That is possible
only when all institutions follow the motto that the
institutions are places for worship of learning by the
students and the teachers together irrespective of
any denomination and distinction.”
118. While dealing with the scope and ambit of the right
guaranteed by Clause (1) of Article 30, Khanna’ J had
stated in categorical terms that the right conferred by
the provision is in absolute terms and is not subject to
Page 184 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
restrictions, as in the case of rights conferred by Article
19 of the Constitution, however, the right of minorities
to administer educational institutions does not prevent
the making of reasonable regulations in respect of those
institutions. Rather, the regulations have, necessarily to
be made in the interest of the institution as a minority
educational institution. They have to be so designed as
to make it an effective vehicle for imparting education. It
was, thus, observed in Paragraph No.’90’ as under:-
“90…..The right to administer educational
institutions can plainly not include the right to
maladminister. Regulations can be made to prevent
the housing of an educational institution in
unhealthy surroundings as also to prevent the
setting up or continuation of an educational
institution without qualified teachers. The State
can prescribe regulations to ensure the excellence
of the institution. Prescription of standards for
educational institutions does not militate against
the right of the minority to administer the
institutions. Regulations made in the true interests
of efficiency of instruction, discipline, health,
sanitation, morality, public order and the like may
undoubtedly be imposed. Such regulations are not
restrictions on the substance of the right which is
guaranteed: they secure the proper functioning of
the institution, in matters educational…”
119. The observation of Shah’ J in Rev. Sidhrajbhai
Sabhai42, has further been noted in Paragraph No.90 to
record that the State may also regulate the conditions of
employment of teachers and the health and hygiene of
students. The right of the State to regulate educational
standards and allied matters, cannot be denied. The
minority institutions cannot be allowed to fall below the
Page 185 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
standards of excellence expected of educational
institutions, or under the guise of exclusive right of
management, to decline to follow the general pattern.
While the management must be left to them, they may
be compelled to keep in step with others.
120. Mathew’ J, while dealing with the concept of “Secular
State” and the meaning of secularism in the context of
our constitution has noted that in short, secularism only
means “an attitude of live and let live developing into the
attitude of live and help live.(Reference to paragraph
No.140) Balancing the State’s interest in secular
education and the parental right in education in a
democratic system, it is said that it is a touchstone of
difference between democratic education and monolithic
system of cultural totalitarianism. When the modern
State with its immense power embarks upon the mission
of educating its children, the whole tendency is towards
State monopoly. The fundamental right of the religious
and linguistic minorities to establish and administer
educational institutions of their choice is the only legal
barrier to confine the bursting expansionism of the new
Educational Leviathan. Great diversity of opinion exists
among the people of this country concerning the best
way to train children for their place in society. Because
of these differences and because of reluctance to permit
a single iron cast system of education to be imposed
upon a nation compounded of several strains, the
Constitution has provided this right to religious and
linguistic minorities.
Page 186 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
121. It was further said that education is an important
function of State and local governments. It is a principal
instrument in awakening the child to cultural values, in
preparing him for later professional training and in
helping him to adjust normally to his environment. If
there is a symbol of democracy in education, it is not the
public school as the single democratic school. Rather it
is the co-existence of several types of schools and
colleges including affiliated colleges on a footing of
juridical equality with a consequent proportionately
equal measure of State encouragement and support.
Juridical equality postulates that the religious minority
should have a guaranteed right to establish and
administer its own educational institutions where it can
impart secular education in a religious atmosphere. It
was observed in paragraph No.’145′ as under:-
“145. The State’s interest in secular education may
be defined broadly as an interest in ensuring that
children within its boundaries acquire a minimum
level of competency in skills, as well as a minimum
amount of information and knowledge in certain
subjects. Without such skill and knowledge, an
individual will be at a severe disadvantage both in
participating in democratic self-Government and in
earning a living. No one can question the
constitutional right of parents to satisfy their State-
imposed obligation to educate their children by
sending them to schools or colleges established
and administered by their own religious minority so
long as these schools and colleges meet the
standards established for secular education.”
122. Beg’ J, referring to the decision of the Apex Court in the
case of Kerala Education Bill4, noted that the Apex
Page 187 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Court therein had equated the right of administration
with management of affairs of the institution and
observed that the freedom of management to control is
the exception and it is that the standards of education
are not a part of management as such. While saying that
these standards concern the body politic and are
dictated by considerations of the advancement of the
country and its people, evidently, what was meant was
that the right to exclusive management of the institution
is separable from the right to determine the character of
education and its standards. Speaking for himself, Beg’ J
observed that it is it very difficult to separate the objects
and standards of teaching from a right to determine who
should teach and what their qualifications should be.
Moreover, if the “standards of education” are not part of
management, it is difficult to see how they are
exceptions to the principle of freedom of management
from control. Again, if what is aimed at directly is to be
distinguished from an indirect effect of it, the security of
tenure of teachers and provisions intended to ensure fair
and equitable treatment for them by the management of
an institution would also not be, directly aimed at
interference with its management. They could more
properly be viewed as designed to improve and ensure
the excellence, of teachers available at the institution,
and, therefore, to raise the general standard of
education.
Page 188 of 260 Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025 NEUTRAL CITATION C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025 undefined (b) TMA Pai Foundation3:-
123. Referring to these decisions, the Apex Court in TMA Pai
Foundation3 has culled out the principles to note that
the decisions of the Apex Court have held that the right
to administer does not include the right to
maladminister. It has also been held therein that the
right to administer is not absolute, but must be subject
to reasonable regulations for the benefit of the
institution as a vehicle for education, consistent with
national interest. General laws of land applicable to all
persons have been held to be applicable to the minority
institutions such as the laws relating to taxation,
sanitation, social welfare, economic regulations, public
order and morality. It, thus, follows from the aforesaid
decisions that even though words of Article 30 (1) are
qualified, the Apex Court has held that atleast certain
other laws of the land pertaining to health, morality and
standards of education apply. The right under Article 30
(1) of the Constitution of India has, therefore, not been
held to be absolute or above other provisions of the law.
124. Reiterating the same principle, it was observed in
Paragraph Nos. ‘137’ that :-
“137. …….By the same analogy, there is no reason
why regulations or conditions concerning,
generally, the welfare of students and teachers
should not be made applicable in order to provide a
proper academic atmosphere, as such provisions do
not in any way interfere with the right of
administration or management under Article
30(1).”
Page 189 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
125. The question No.5(c) in Paragraph 162-G as noted
hereinbefore is relevant to be reiterated herein :-
“Q. 5.(c) Whether the statutory provisions
which regulate the facets of administration like
control over educational agencies, control over
governing bodies, conditions of affiliation
including recognition/withdrawal thereof, and
appointment of staff, employees, teachers and
principals including their service conditions and
regulation of fees, etc. would interfere with the
right of administration of minorities?” , it was
held that:-
“A. So far as the statutory provisions regulating the
facets of administration are concerned, in case of
an unaided minority educational institution, the
regulatory measure of control should be minimal
and the conditions of recognition as well as the
conditions of affiliation to a university or board
have to be complied with, but in the matter of day-
to-day management, like the appointment of staff,
teaching and non-teaching, and administrative
control over them, the management should have
the freedom and there should not be any external
controlling agency. However, a rational procedure
for the selection of teaching staff and for taking
disciplinary action has to be evolved by the
management itself.
For redressing the grievances of employees of
aided and unaided institutions who are subjected to
punishment or termination from service, a
mechanism will have to be evolved, and in our
opinion, appropriate tribunals could be constituted,
and till then, such tribunals could be presided over
by a judicial officer of the rank of District Judge.
The State or other controlling authorities, however,
can always prescribe the minimum qualification,
experience and other conditions bearing on the
merit of an individual for being appointed as aPage 190 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
teacher or a principal of any educational
institution.
Regulations can be framed governing service
conditions for teaching and other staff for whom
aid is provided by the State, without interfering
with the overall administrative control of the
management over the staff.
Fees to be charged by unaided institutions cannot
be regulated but no institution should charge
capitation fee.”
(iv) Test of reasonableness; Permissible fetters by the
State Regulations:-
126. Coming to the test of reasonableness propounded in the
Ahmedabad St. Xavier’s3, we may note that it is now a
settled principle that the State can prescribe regulations
to ensure the excellence of the institution. A regulation,
which is designed to prevent maladministration of
educational institution cannot be said to offend Clause
(1) of Article 30. The further question is as to how to
ensure that the regulations are made in the true
efficiency and instructions, discipline, for achieving the
excellence and uniformity in standards of education. The
dual test laid down by the Apex Court in Rev.
Sidhrajbhai Sabhai42, noted by the Apex Court in
paragraph No.92 in the Ahmedabad St. Xavier’s3,
which has withstood the test of time; is that such
regulation must satisfy a dual test; (i) the test of
reasonableness, (ii) and the test that it is regulative of
the educational character of the institution and is
conducive to making the institution an effective vehicle
Page 191 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
of education for the minority community or other
persons who resort to it. As held by the Apex Court in
paragraph No.’94’ in the Ahmedabad St. Xavier’s3
balance has to be kept between the two objectives, that
of ensuring the standard of excellence of the institution
and that of preserving the right of’ the minorities to
establish and administer their educational institutions.
Regulations which embrace and reconcile the two
objectives can be considered to be reasonable.
127. For applying the test, the arguments of the respondents
in the Ahmedabad, St. Xavier’s3 that unless a law or
regulation is wholly destructive of the right of minorities
under Article 30(1), the same would not be liable to be
struck down, was held untenable as it runs contrary to
the plain language of Article 13.
128. It was held in paragraph No.’99’ (by Khanna’ J in the
Ahmedabad St.Xavier’s3 that according to Article 13, a
law would be void even it it merely abridges a
fundamental right guaranteed by Part III and does not
wholly take away that right. The argument that a law or
regulation could not be deemed to be unreasonable
unless it is totally destructive of the right of the minority
to administer educational institutions was found to be
expressly negatived by this Court in the case of Rev.
Sidhrajbhai Sabhai42 It was, thus, held in paragraph
No.101 as under:-
“101. In the light of the above principles, it can be
stated that law which interferes with the minoritiesPage 192 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
choice of a governing body or management council
would be violative of the right guaranteed by
Article 30(1). This view has been consistently taken
by this Court in the cases of Rt. Rev. Bishop S.K.
Patro, Mother Provincial and D.A.V.
College (affiliated to the Guru Nanak University).”
(v) Right to Administer: Right to choose
Principals/Teachers:-
129. The observation of the Apex Court in paragraph No.’103′
of Ahmedabad St.Xavier’s3 that the law which
interferes with a minority’s choice of qualified teachers
or its disciplinary control over teachers and other
members of the staff of the institution is void as being
violative of Article 30(1) be noted herein to understand
the scope of interference vis-a-vis autonomy of the
management of the minority institution to choose its
teachers :-
“103. Another conclusion which follows from what
has been discussed above is that a law which
interferes with a minority’s choice of qualified
teachers or its disciplinary control over teachers
and other members of the staff of the institution is
void as being violative of Article 30(1). It is, of
course, permissible for the State and its
educational authorities to prescribe the
qualifications of teachers, but once the teachers
possessing the requisite qualifications are selected
by the minorities for their educational institutions,
the State would have no right to veto the selection
of those teachers. The selection and appointment of
teachers for an educational institution is one of the
essential ingredients of the right to manage an
educational institution and the minorities can
plainly be not denied such right of selection and
appointment without infringing Article 30(1). In W.
Proost2, this Court while dealing with Section 48-APage 193 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
of the Bihar Universities Act observed that the said
provision completely took away the autonomy of
the governing body of the college and virtually
vested the control of the college in the University
Service Commission. The petitioners in that case
were, therefore, held entitled to the protection of
Article 30(1) of the Constitution. The provisions of
that section have been referred to earlier.
According to the section, subject to the approval of
University appointment, dismissals, removals,
termination of service or reduction in rank of
teachers of an affiliated college not belonging to
the State Government would have to be made by
the governing body of the college on the
recommendation of the University Service
Commission. The section further provided that the
said Commission would be consulted by the
governing body of a college in all disciplinary
matters affecting teachers of the college and no
action would be taken against or any punishment
imposed upon a teacher of a college otherwise than
in conformity with the findings of the Commission.”
130. We may note that referring to the decision of the Apex
Court in DAV College25, wherein Statute 17 framed
under the Guru Nanak University (Amritsar) Act
interalia provided that staff initially appointed shall be
approved by the Vice-Chancellor and all subsequent
changes shall be reported to the University for the Vice-
Chancellor’s approval, the Apex Court held that the
statute interfered with the right of management of the
petitioner’s college and as such, offended Article 30(1).
In paragraph No.’105′ of Ahmedabad, St. Xavier’s3,
Khanna’ J had further observed that :-
“105. Although disciplinary control over the
teachers of a minority educational institution would
be with the governing council, regulations, in my
opinion, can be made for ensuring properPage 194 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
conditions of service of the teachers and for
securing a fair procedure in the matter of
disciplinary action against the teachers. Such
provisions which are calculated to safeguard the
interest of teachers would result in security of
tenure and thus inevitably attract competent
persons for the posts of teachers. Such a provision
would also eliminate a potential cause of
frustration amongst the teachers. Regulations
made for this purpose should be considered to be
in the interest of minority educational institutions
and as such they would not violate Article 30(1).”
131. While saying so, it was further observed in paragraph
No.105 itself that the provisions of Section 51 A (b) in
the Ahmedabad, St. Xavier’s 3, authorized the Vice
chancellor or other officer authorized by him as a
blanket power. The conferment of such a blanket power
on the Vice-Chancellor or other officer authorised by him
for vetoing the disciplinary action of the managing body
of an educational institution was a serious inroad on the
right of the managing body to administer an educational
institution. The said provision was, thus, held to be
violative of Article 30 insofar as minority institutions are
concerned. Other provisions impugned in the said case
were also tested on the dual test laid down in Rev.
Sidhrajbhai Sabhai42.
132. In a similar fashion, while applying the dual test of
reasonableness, it was observed by Mathew’ J (in
paragraph 174) that in every case, the court must
undertake to define and give content to the word
‘abridge’ in Article 13 (2). The question to be asked and
answered is whether the particular measure is
Page 195 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
regulatory or whether it crosses the zone of permissible
regulation and enters the forbidden territory of
restrictions or abridgment.
133. Referring to the above noted test of permissible
regulations, it was held therein that Sub-sections (1)(a)
and (1)(b) of Section 33A abridge the right of the
religious minority to administer educational institutions
of their choice. It was held that the requirement that the
college should have a governing body which shall
include persons other than those who are members of
the governing body of the Society of Jesus, would take
away the management of the college from the governing
body constituted by the Society and vest it in a different
body. It was held that the right to administer the
educational institution established by a religious
minority is vested in the governing body of the society,
in which the religious minority which established the
college has vested the right to administer the institution
and that body alone has the right to administer the
same.
134. Referring to the decision of the Apex Court in Very Rev.
Mother Provincial1, it was noted that the law which
interferes with the composition of the governing body or
the managing council as constituted by the religious or
linguistic minority is an abridgement of the right of the
religious minorities to administer the educational
institution established by it. It is in this context, it was
observed in paragraph No.183 by Mathew’ J, which was
Page 196 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
heavily relied by the learned Senior Counsel for the
petitioner, as noted in the foregoing paragraph of this
judgment.
135. With this view, Mathew’ J had concurred with the
opinion drawn by Khanna’ J and had struck down the
provision, which require a subsequent approval of the
Vice Chancellor or other officers for dismissing or
terminating the service of the teachers being bad, as
offending Article 30 (1). The provision was held as
abridgement of the right to administer the educational
institutions established by the minority. It was held that
the provisions of Sections 51A and 52A, subject matter
of challenge therein, subserve no purpose except that it
will needlessly interfere with the day to day
management of the institution.
136. The requirement of referring the dispute of teaching or
non-teaching staff therein to a tribunal of arbitration as
provided in Section 52A, has been held to be
interference with the day to day management of the
institution, inasmuch as, it has no relevance to the
standards of imparting education rather pertaining to
business of educational institutions.
137. Keeping in mind the above principles, we are required to
examine as to whether the regulations framed by the
State Government in the matter of selection and
appointment of teachers in minority educational
institutions in the State of Gujarat (aided minority
institutions), in any way, interferes with the choice of the
Page 197 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
management of minority institution to choose their
teachers after an overall assessment of their outlook and
philosophy or they fall within the scope of permissible
fetters on the minorities right to administer (manage)
their institution and to their choice of selection of
principal/headmaster/teachers.
138. We are further required to make an analysis of the
decisions of the Apex Court in three regime relied by the
learned Senior Counsels for the rival parties, wherein
the above noted principles in the Ahmedabad St.
Xavier’s3 and TMA Pai Foundation7 have been applied
to test the validity of the provisions challenged therein.
139. We may note, at this juncture, that we do agree with the
submission of Mr. Mihir Thakore, learned Senior
Counsel for the petitioners that the tests laid down by
the Apex Court in the Ahmedabad St.Xavier’s3, to
examine the validity of regulations framed by the State
on the anvil of Article 30(1) has not been diluted in the
subsequent decision in TMA Pai Foundation7.
140. On a conjoint reading of both the decisions (the
Ahmedabad St. Xavier’s3 and TMA Pai Foundation7
as noted hereinabove), we find that the consistent view
has been on the concept of equality under Article 30 (1)
in the matter of recognition, affiliation and grant-in-aid;
autonomy of recognized private educational institutions
whether aided and unaided and both the decisions are
directly aimed towards one fundamental principle of the
right of the State to regulate by making such
Page 198 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
regulations, which do not impinge upon the right of
minorities under Article 30(1) of the Constitution. While
making regulations, balance is to be kept between the
two objectives; that of ensuring the standard of
excellence of the institution and that of preserving the
right of the minorities to establish and administer their
educational institutions. The principle that regulations
which embrace and reconcile the two objectives, can be
considered to be reasonable as sacrosanct.
Decisions in Pre-TMA Pai Regime :- judgement following
Ahmedabad St. Xavier’s 3 :-
141. Coming to the decisions immediately following
Ahmedabad St.Xavier’s3, in Gandhi Faizeam
College26 the challenge therein was to Statute 14A of
the statute framed by the affiliating university, which
provided that each affiliated college maintained
exclusively by Government, must be under the
Management of a regular constituted Governing Body
(Managing Committee) which included the principal of
the College and at least one representative of the
teachers of the college to be appointed by rotation in
order of seniority, as a representative of the staff of the
college.
142. In a split verdict, speaking for the majority, Krishna
Aiyer’ J, referring to the opinion of Justices Beg and
Dwivedi has observed in Paragraph No.’15’ as under:-
Page 199 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
“15. Justices Beg and Dwivedi have stretched the
regulatory power further than the majority, holding
that it is an illusion for a minority to claim absolute
immunity. The thrust of the case is that real
regulations are desirable, necessary and
constitutional but, when they operate on the
“administration” part of the right, must be confined
to chiselling into shape, not cutting down out of
shape, the individual personality of the minority.”
143. It was held therein that on a careful reflection and
conscious of the constitutional dilemma, a fine
distinction line may be drawn, to keep regulations which
facilitates is good on the valid side of the delicate line.
No rigid formula is possible but a flexible test is feasible.
The observations in Paragraph Nos. 16 and 17, which
guide us in this matter are relevant to be noted
hereinunder:-
“16……Where the object and effect is to improve
the tone and temper of the administration without
forcing on it a stranger, however superb his virtues
be, where the directive is not to restructure the
governing body but to better its performance by a
marginal catalytic induction, where no external
authority’s fiat or approval or outside nominee is
made compulsory to validate the Management
Board but inclusion of an internal key functionary
appointed by the autonomous management alone is
asked for, the provision is salutary and saved,
being not a diktat eroding the freedom of the
freedom.
17. A dichotomy is sometimes drawn in this branch
of juridical discussion. More plainly, the difference
drawn is between creating a managing body by the
minority community and regulation of the manner
of its functioning to obviate maladministration. The
former is ordinarily beyond the pale of legislative
prescription while the latter is permissible as aPage 200 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
preservative. Broadly, this is sound, but as a rigid
logical formula, it breaks down. For, some
regulations may impinge marginally upon the
composition of the administrative organ though
manifestly meant to save the institution from
mismanagement……”
144. Mathew’ J, referring to his opinion in the Ahmedabad
St.Xavier’s3, while recorded his dissenting opinion
therein by stating that the minority community has the
exclusive right to vest the administration of the college
in the body of its own choice and any compulsion from
an outside authority to include any other person in that
body is an abridgement of its fundamental right to
administer the educational institution. Testing the law
under challenge therein namely the Statute 14A while
reiterating his opinion in paragraph No.182
(hereinabove), it was observed in Paragraph No.’43’
that:-
“43. It is, no doubt, true that it is upon the
principal and the teachers that the whole temper
and the tone of a college depend. But that does not
mean that the principal and the teachers should be
members of the governing council of a college…..”
145. In All Saints High School27, three Judges of the Apex
Court constituting the bench wrote separate judgments
giving split verdict on the validity of each provision of
the regulatory Act challenged therein. However, the law
laid down by the majority in the Ahmedabad St.
Xavier’s3 was analyzed and principles and prepositions
therein were summarized in Paragraph No.’63’ in the
following manner:-
Page 201 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
“63……**
(6) The introduction of an outside authority
however high it may be either directly or through
its nominees in the governing body or the
managing committee of the minority institution to
conduct the affairs of the institution would be
completely destructive of the fundamental right
guaranteed by Article 30(1) of the Constitution and
would reduce the management to a helpless entity
having no real say in the matter and thus destroy
the very personality and individuality of the
institution which is fully protected by Article 30 of
the Constitution……….Where educational
institutions have set up a particular governing body
or the managing committee in which all the powers
vest, it is desirable that such powers should not be
curbed or taken away unless the Government is
satisfied that these powers are grossly abused and
if allowed to continue may reduce the efficacy or
the usefulness of the institution.
(7) 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 guidance to see
that the said rules are not violated or the members
of the staff are not arbitrarily treated or innocently
victimised……..It would be better if the authority
concerned associates 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.
(8) Where a minority institution is affiliated to a
university the fact that it is enjoined to adopt the
courses of study or the syllabi or the nature of
books prescribed and the holding of examination to
test the ability of the students of the institution
concerned does not violate the freedom contained
in Article 30 of the Constitution.
Page 202 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
(9) While there could be no objection in setting up
a high authority to supervise the teaching staff so
as to keep a strict vigilance on their work and to
ensure the security of tenure for them, but the
authority concerned must be provided with proper
guidelines under the restricted field which they
have to cover. Before coming to any decision which
may be binding on the managing committee, the
head of the institution or the senior members of the
managing committee must be associated and they
should be allowed to have a positive say in the
matter………”
146. The salient features of the bill therein as stated in the
statement of objects and reasons was to regulate the
service conditions of the teachers in the private
educational institutions and for ensuring the security of
service of the teachers, restrain from punishing teachers
on flimsy grounds without framing charges and without
giving an opportunity to explain. The preamble stated
that the Act is to provide for terms and conditions of
service of teachers and to control over the recognized
private educational institution. Noticing the object
stated for bringing the legislation, Fazalali’ J considering
the provision of Section 3 (2) of the Andhra Pradesh
Recognized Private Educational Institutions Control Act’
1975, which stated that any action taken against the
teacher in the matter of dismissal, removal or reduction
in rank or termination will be of no consequence unless
it is approved by the competent authority, has observed
in Paragraph No.’68’ as under:-
“68….If the State wanted to regulate the conditions
of service of the teachers it should have taken care
to make proper rules giving sufficient powers to
the management in the manner in which it was toPage 203 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
act. Secondly, the induction of an outside authority
over the head of institution and making its decision
final and binding on the institution was a blatant
interference with the administrative autonomy of
the institution. Sub-section (2) does not contain any
provision that while giving approval the competent
authority was to ascertain the views of the
governing body or the managing committee so as
to know their viewpoint and the reason why action
has been taken against a particular teacher or
teachers…..”
147. Two other decisions cited before us of the year 1996 –
1998 (reported in 1998 Supreme Court Cases) in Pre
TMA Pai regime are N.Ammad5 and Board of
Secondary Education6, wherein the challenge was to
the statutory provisions regulating the selection of
Headmaster/Principal of minority institution. In
N.Ammad5, the institution was an aided school
governed by the provisions of the Kerala Education Bill’
1958. The challenge therein was to the decision of the
management of appointment of the teacher transferred
from another school to the post of headmaster of the
minority school. The appellant, who claimed to be the
senior most graduate teacher of the minority school had
challenged the appointment taking plea of the rules
recording conditions of service of aided school teachers
framed under the Kerala Education Act to argue that
when a teacher is transferred from one school to another
his rank in the new school shall be fixed next below the
juniormost teacher in the school in the particular grade.
Another rule, which prescribed minimum service
qualification for appointment as Headmaster was
pressed into service to argue that the appointment of
Page 204 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Headmaster shall ordinarily be according to the
seniority from the seniority list prepared and maintained
under the rules.
148. The Apex Court, while considering the decisions in
Kerala Education Bill4; the Ahmedabad St. Xavier’s3;
Gandhi Faiz-e-am26, has observed in paragraph No.
’24’, as noted in the foregoing paragraphs of this
judgment (in the discussion of argument of the learned
Senior Counsels for the parties) and held that the
management’s right to choose a qualified person as the
Headmaster of the school will insulate by the protective
cover of Article 30 (1) of the Constitution. The
management has the right and freedom to choose a
qualified teacher as the Headmaster of the institution,
even by bringing him down from another school or even
from outside the State. This decision, evidently, was
given in the facts and circumstances of that case.
149. Similarly, in Board of Secondary Education6, the
management chose one of the teachers working in the
institution, who was otherwise eligible according to the
rules prescribed by Madhya Pradesh Government, for
the post of principal. The third respondent therein
working in the school, who was also qualified according
to the rules of appointment raised the challenge. The
educational authorities refused to approve the
appointment of teacher chosen by the management and
approved the appointment of third respondent therein.
In light of the said fact, the Apex Court has clarified that
in the matter of the appointment of the Principal,
Page 205 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
management of minority educational institution has a
choice, inasmuch as, one of the incident of the right to
administer a minority educational institution is the
selection of the Principal. It was held in the facts of the
case that both the teachers selected by the management
and the third respondent therein were qualified and
eligible for appointment as Principal according to the
rules, the choice of management of the school cannot be
interfered with by the State.
RATIO OF THE DECISIONS IN POST-TMA PAI REGIME
150. In Brahmo Samaj Education Society v. State of
W.B.43, the challenge was to the regulations providing
the manner of selection of persons for appointment of
teachers through the College Service Commission
constituted under the College Service Commission Act.
By virtue of the provisions of Section 7 of the College
Service Commission Act, the power of appointment of a
teacher in the college or institution affiliated to
university in West Bengal vested in the Government
appointed College Service Commission. The petitioner
society claimed that they being religious minority
protected by Article 30 (1) of the Constitution cannot be
regulated in the matter of appointment of teachers and
the requirement of selection through the College Service
Commission cannot be thrust upon them. In light of the
above nature of the Statute, the Apex Court following
TMA Pai Foundation (supra) has held in Paragraph No.7
in the following manner:-
43
(2004) 6 SCC 224
Page 206 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
“7. But that control cannot extend to the day-to-day
administration of the institution. It is categorically
stated in T.M.A. Pai7 (SCC at p. 551, para 72) that
the State can regulate the method of selection and
appointment of teachers after prescribing requisite
qualification for the same. Independence for the
selection of teachers among the qualified
candidates is fundamental to the maintenance of
the academic and administrative autonomy of an
aided institution. The State can very well provide
the basic qualification for teachers. Under the
University Grants Commission Act, 1956, the
University Grants Commission (UGC) had laid
down qualifications to a teaching post in a
university by passing Regulations. As per these
Regulations UGC conducts National Eligibility Test
(NET) for determining teaching eligibility of
candidates. UGC has also authorised accredited
States to conduct State-Level Eligibility Test
(SLET). Only a person who has qualified NET or
SLET will be eligible for appointment as a teacher
in an aided institution. This is the required basic
qualification for a teacher. The petitioners’ right to
administer includes the right to appoint teachers of
their choice among the NET-/SLET-qualified
candidates.”
151. In the year 2007, the seven Judges Bench in the decision
of PA Inamdar11 was constituted to clarify unsettled
questions in TMA Pai7. Considering the inter-
relationship between Article 19 (1)(g), 29(2) and 30(1) of
the Constitution, it was held therein that:-
(i) to some extent what may be permissible by way of
restriction under Article 19 (g) may fall foul of Article
30. The right to establish and administer national
institutions of their choice is an additional protection,
which Article 30(1) grants to the minorities.
Page 207 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
(ii) aid and affiliation and recognition, both by the
State, bring in some amount of regulation as a
condition of receiving grant and regulation.
(iii) the regulation must satisfy the test of
reasonableness and being rationale; regulative of the
essential character of the institution and is conducive
to making the institution an effective vehicle of
education for the minority or other person, who resort
to it. (Referring to the test laid down in
Rev.Sidhajbhai Sabhai (supra). It is directed towards
maintaining excellence of education and efficiency on
administration so as to prevent it from falling in
standards.
(iv) It was noted in PA Inamdar11 that in TMA Pai
Foundation7, speaking for the majority, Kirpal’ CJ,
while dealing with the tests laid down in
Rev.Sidhrajbhai Sabhai42 and spelt out in the
Ahmedabad St.Xavier’s3, that no regulation can be
cast in ‘the interest of the Nation’ if it does not serve
‘the interest of the minority’ as well. The observations
in Paragraph No. 107 of TMA Pai Foundation7 noted
therein speaks that:-
“107….Any regulation framed in the national
interest must necessarily apply to all educational
institutions, whether run by the majority or the
minority. Such a limitation must necessarily be
read into Article 30. The right under Article 30(1)Page 208 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
cannot be such as to override the national interest
or to prevent the Government from framing
regulations in that behalf…….”
It was, thus, clarified in PA Inamdar11 that no right
can be absolute. Whether a minority or a non-
minority, no community can claim its interest to be
above National interest.
(v) It was stated that the dividing line between how
far the regulation would remain within the
constitutional limits and when the regulations would
cross the limits and be vulnerable is fine yet
perceptible. The opinion of S.P. Sinha’ J in Islamic
Academy clarifies this aspect with meticulous
precision coupled with brevity, was noted therein (in
Paragraph No.103):-
“103……The considerations for granting
recognition to a minority educational institution
and casting accompanying regulations would be
similar as applicable to a non-minority institution
subject to two overriding considerations : (i) the
recognition is not denied solely on the ground of
the educational institution being one belonging to
minority, and (ii) the regulation is neither aimed at
nor has the effect of depriving the institution of its
minority status.”
152. In Secy., Malankara Syrian Catholic College10,
rendered in the year 2007, there were two colleges,
which were aided private minority institutions affiliated
to Kerala University under the Kerala University Act,
1974. The college management undertook the process of
selection to the post of principal of the college
Page 209 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
concerned. In a challenge to the selection before the
Kerala University Appellate Tribunal, the tribunal
directed the management of both the colleges to make a
fresh selection. The High Court relied on the decision of
the 11 Judges Bench of the Apex Court in TMA Pai
Foundation7 to hold that receiving of aid by a minority
institution resulted in removal of the protection under
Article 30 (1), by taking away its right to claim immunity
from interference, and therefore, all regulations made by
the State governing the manner of making appointments
and removal as also the conditions of service of
Principals and Lecturers, will be binding on such aided
institution. The High Court held that aid carries the
‘price’ of surrender of a part of its freedom and
independence in matters of administration. As a
consequence, it held that Section 57(3) of the Kerala
University Act providing that appointments of Principal
should be on the basis of seniority- cum-fitness was valid
and binding on minority institutions.
153. It is in this context, in the facts of that case, the Apex
Court has examined the applicability of Section 57 (3) of
the Act to minority-run educational institutions and held
that Section 57 (3), which insist on selection by
promotion on the basis of seniority-cum-fitness,
trammels the right of the management to take note of
merit of the candidate, or the outlook and philosophy of
the candidate which will determine whether he is
supportive of the objects of the institution. Such a
provision clearly interferes with the right of the minority
Page 210 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
management to have a person of their choice as Head of
the institution and, thus, violates Article 30(1) and
hence, cannot apply to minority institutions even if they
are aided.
154. The abovenoted observations in pargraph No. ’27’ [in
Secy, Malankara Syrian Catholic College 10] have
been heavily relied by Mr. Mihir Thakore, learned Senior
advocate for the petitioner, to vehemently argue that the
freedom to choose a person to be appointed as a
Principal, has always been recognized as a vital facet of
the right to administer the educational institution. This
principle of law stated in the Ahmedabad St. Xavier’s3
has not been, in any way, diluted or altered in TMA Pai
Foundation7. We may hold that the said statement in
Secy, Malankara Syrian Catholic College 10 is the
statement of law, which withstood the test of time, but
the same is to be applied taking into consideration of the
nature of regulations, in light of the test noted
hereinabove as to whether the regulations is aimed at or
has an effect of depriving the institution of control on its
day to day affairs, with respect to the choice of the
management to select Principal, who is most suited to
head the institution with the caveat that “provided he
possess the qualifications prescribed for the post.”
155. In Sindhi Education Society13, heavily relied by the
learned Senior Counsel for the petitioner, the question
was as to whether Rule 64 (1)(b) of the Delhi School
Education Rules, 1973 and the orders / directions issued
Page 211 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
therein, would, if made applicable to an aided minority
educational institution violate the fundamental right
guaranteed under Article 30 (1) of the Constitution. The
aforesaid rules and the directions issued therein by the
Deputy Director of Education required the Managing
Committee of the Society to implement reservation for
the Scheduled Castes and the Scheduled Tribes for the
appointment of teachers. The observations in paragraph
Nos. ’79 to 85′ of the said decision as noted in the
foregoing paragraphs of this judgment about the
applicability of Article 16 of the Constitution of India,
(which enshrines equality of opportunity in matters of
public employment so as to prohibit discrimination in
relation to the service under the State), had been made
in the above context. It was held that the minority
institutions, by receiving grant-in-aid per se would not
become “State” within the meaning of Article 12 of the
Constitution of India. We may simply note that the
deliberation in the said judgment of the right of the
management of minority institution to appoint a teacher
being part of the regular administration and
management of the school cannot be read out of the
context. We may simply say that the statement of law in
Sindhi Education Society (supra) about the right of
minorities to administer their institution and the power
of the State to regulate, is nothing but reiteration of the
law laid down in the decisions of the Apex Court in the
Ahmedabad St.Xavier’s3, TMA Pai Foundation7 and
PA Inamdar11 and reiterated in the abovenoted
decisions and thereafter from time to time in post TMA
Page 212 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Pai Regime.
156. In Chandana Das15, the main dispute was about the
status of the institute known as Khalsa Girls High
School, Paddapukur Road, Calcutta being the minority
institution. The argument was that the school having
accepted the special constitution of Managing
Committee in terms of Rule 8 (3) of the Rules for
Management of Recognized Non-Government Institution
(Aided and Unaided), 1969 was estopped from
contending that it is a minority institution covered by the
Rule 32 therein, which provided that nothing in the
Rules’ 1969 shall apply to non-government aided
educational institutions established and administered by
a minority, referred to in Clause (c) of Section 2 of the
West Bengal Minority Commission Act’ 1996.
157. It is in this context, while reading the definition of
minorities under Section 2(c) of the West Bengal
Minority Commission Act’ 1996, and considering the
other relevant material on record, it was held by the
Apex Court therein that there cannot be a dispute about
the minority character of the institution, which was
established by a linguistic minority namely the Sikhs in
the State of West Bengal. Merely because Rule 8 (2) of
the Rules’ 1969 was purportedly applied and the
institution accepted a special constitution of the
managing committee of the School, circulated vide letter
from the Secretary, West Bengal Board of Secondary
Page 213 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Education, it cannot be said that it has waived its right
to be treated as linguistic minority institution. While
setting out the scope and ambit of Article 30 (1) of the
Constitution, noticing the previous decisions, it was held
therein that the institution, in no manner, can be
stopped from claiming its minority status. It was noted
that it is a settled law that the fundamental right under
Article 30 cannot be waived.
158. We may record that all the statements made by the
Apex Court in the said decision, spelled out in the facts
of the case, are again reiteration of the law stated by the
Apex Court in its previous decisions noted hereinbefore.
Rule 28 of the Rules’ 1969 therein provided that in an
aided institution, the committee shall, subject to the
provisions of any grant in aid scheme or pay revision
scheme or any order or direction or guide-lines issued by
the State Government or the Director in connection
therewith and in force for the time being, have the
power to appoint teachers on permanent or temporary
basis against permanent or temporary vacancies, on the
recommendation of the West Bengal Regional School
Service Commission. The provision for selection of
teachers by the West Bengal Regional School Service
Commission was, held to be a serious infraction of the
right of minority institution to administer the institution
with teachers of its choice. We may simply note that
there is no quarrel about the legal proposition laid down
therein, which was stated in the facts and circumstances
of that case.
Page 214 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
159. We may now come to the decisions heavily relied by the
learned Advocate General to put forth the stand of the
State that the regulations under challenge herein, in no
way, are encroachment on the right of the minorities to
administer their educational institutions.
160. One of the decisions, which is the bone of contention of
the submission of the learned Advocate General is S.K.
Mohd. Rafique18, wherein the Apex Court had
examined the validity of provisions of the West Bengal
Madrasah Service Commission, 2008 (for short, “the
Commission Act’ 2008”). The challenge was raised
therein on the premise that by prescribing the process of
appointment of teachers in aided Madrasah, which was
recognised as a Minority Institution, the right of
management was taken over and entrusted to the
Commission. It was submitted that the provisions of the
Commission Act’ 2008 transgressed the right of the
minority institution of choosing its own teachers.
161. The Apex Court therein, on detail deliberation of all the
previous (above noted) decisions (in ‘discussion and
conclusion’ beginning from paragraph No.41) had
concluded the principles stated therein to record in
paragraph No.45 that, “going by the decision of eleven
Judges of this Court in TMA Pai Foundation, so long as
the principles laid down therein, as culled out
hereinabove, are satisfied, it is permissible if any
regulations seek to ensure the standard of excellence of
Page 215 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
the institutions while preserving the right of the
minorities to establish and administer their educational
institutions.”
162. Referring to both the decisions in TMA Pai
Foundation7 and P.A. Inamdar11, it was noted in
paragraph No.’46’ that:-
“46. …..A minority institution cannot in the name of
right under Article 30(1) of the Constitution,
disregard merit or merit-based selection of
students as regards professional and higher
education…..”
163. With respect to the right to appoint teachers, it was
stated in paragraph No.’47’ referring to the TMA Pai
Foundation7 that:-
“47. …..a regulation framed in the national interest
must necessarily apply to all institutions regardless
of whether they are run by majority or minority as
the essence of Article 30(1) is to ensure equal
treatment between the majority and minority
institutions. An objection can certainly be raised if
an unfavourable treatment is meted out to an
educational institution established and
administered by minority. But if ensuring of
excellence in educational institutions is the
underlying principle behind a regulatory regime
and the mechanism of selection of teachers is so
designed to achieve excellence in institutions, the
matter may stand on a completely different
footing.”
164. It was noted that the test laid down in The Ahmedabad,
St. Xaviers3 that the balance between the two
objectives that; of ensuring the standard of excellence of
Page 216 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
the institution and that of preserving the right of
minorities to establish and administer their educational
institutions, had been accepted in TMA Pai
Foundation3 in the context of two categories of
institutions:-
(i) One imparting education, which is directly aimed
at or dealing with preserving and protection of the
heritage, culture, script and special characteristics of
a religious or a linguistic minority;
(ii) While the second category of institution can be
those, which are imparting what is commonly known
as ‘secular education’.
165. It was observed that in the first category, maximum
latitude may be given to the management of the minority
institutions concerned as they would normally be
considered to be the best judges of what would help
them in protecting and preserving the heritage, culture
or script or such special features or characteristics of
the minorities concerned. However, when it comes to the
second category of institutions, “the governing criteria
must be to see to it that the most conducive atmosphere
is put in place where the institution achieves excellence
and imparts best possible education.”
166. The observations in paragraph Nos. ’49 to 53′ in S.K.
Mohd Rafique18 are to be noted herein for a better
appreciation of the law laid down therein:-
Page 217 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
“49. As laid down in the leading judgment in
Ahmedabad St. Xavier’s College case, regulations
which will serve the interest of the students so also
regulations which will serve the interest of the
teachers are of paramount importance in good
administration; that regulations in the interest of
efficiency of teachers are necessary for preserving
harmony amongst the institutions; and that the
appointment of teachers is an important part in
educational institutions. It is quite natural that
qualitatively better teachers will ensure imparting
of education of the highest standard and will help
in achieving excellence. As accepted in Frank
Anthony Public School case, the excellence of the
instruction provided by an institution would depend
directly on the excellence of the teaching staff and
would in turn depend inter alia on the quality of
teachers.
50. Thus, if the intent is to achieve excellence in
education, would it be enough if the educational
institutions concerned were to employ teachers
with minimum requisite qualifications in the name
of exercise of right under Article 30 of the
Constitution, while better qualified teachers are
available to impart education in the second
category of institutions as stated hereinabove. For
example, if the qualifying percentile index for a
teacher to be appointed in an educational
institution, considering his educational
qualifications, experience and research, is required
to be 50, and if teachers possessing qualifications
far greater and higher than this basic index are
available, will it be proper exercise for a minority
educational institution to select teachers with
lower index disregarding those who are better
qualified? Will that subserve pursuit of excellence
in education? One can understand if under the
regulatory regime candidates who are otherwise
less qualified are being nominated in the minority
educational institution and the minority
educational institution is forced to accept such less
meritorious candidates in preference to betterPage 218 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
qualified candidates. In such cases, the minority
educational institution can certainly be within its
rights to agitate the issue and claim a right to
choose better teachers. But if the candidates who
are selected and nominated under the regulatory
regime to impart education which is purely secular
in character, are better qualified, would the
minority institution be within its rights to reject
such nomination only in the name of exercise of a
right of choice? The choice so exercised would not
be in pursuit of excellence. Can such choice then
be accepted?
51. If the right is taken to be absolute and
unqualified, then certainly such choice must be
recognised and accepted. But, if the right has not
been accepted to be absolute and unqualified and
the national interest must always permeate and
apply, the excellence and merit must be the
governing criteria. Any departure from the concept
of merit and excellence would not make a minority
educational institution an effective vehicle to
achieve what has been contemplated in various
decisions of this Court. Further, if merit is not the
sole and governing criteria, the minority
institutions may lag behind the non-minority
institutions rather than keep in step with them.
52. Going back to the example given above, as
against index of 50 i.e. the minimum qualifying
index, if a candidate nominated under the
regulatory regime is at an index of 85, selection by
a minority educational institution of a candidate at
an index 55 may certainly be above the minimum
qualifying mark, but in preference to the one at the
index of 85 who is otherwise available, the
appointment of a person at the index level of 55,
will never give the requisite impetus to achieve
excellence. A meritorious candidate at the index
level of 85 in the above example, if given the
requisite posting will not only help in upholding the
principle of merit but will in turn generate an
atmosphere of qualitative progress and sense ofPage 219 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATIONC/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
achievement commensurate with societal
objectives and ideology and such posting will,
therefore, be in true national interest.
53. At the cost of repetition, it needs to be clarified
that if the minority institution has a better
candidate available than the one nominated under
a regulatory regime, the institution would certainly
be within its rights to reject the nomination made
by the authorities but if the person nominated for
imparting education is otherwise better qualified
and suitable, any rejection of such nomination by
the minority institution would never help such
institution in achieving excellence and as such, any
such rejection would not be within the true scope
of the right protected under Article 30(1) of the
Constitution.”
167. We may note that placing the discussion in paragraph
No.55 in S.K. Mohd. Rafique18 it was argued by the
learned Senior Counsels for the petitioners that the law
laid down therein cannot come to the rescue of the
State. The Apex Court had held therein that there was
no defect in the composition of the Commission therein,
which had been entrusted with the task to recommend
teachers for Madrasah, inasmuch as, predominant
composition of the Commission was that of educationist
and persons with profound knowledge in Islamic culture
and Islamic theology. It was noted that the provisions of
the Commission Act’ 2008 was specially designed for
Madrasah and Madrasah education system in the State.
It was, therefore, held that when the State legislature
had taken care to see that the composition of the
Commission would ensure compatibility of the teachers,
Page 220 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
who would be selected to impart education in Madrasah
education system, there was no reason to interfere.
168. The submission is that no analogy can be drawn from the
said decision to save the constitution of the Scrutiny
committee and Minority schools selection committee,
prescribed in the impugned rules framed by the State
under Section 35 of the Act’ 1972. The rationale, which
was applied in S.K. Mohd Rafique18 to save the
provision challenged therein, cannot be applied to the
facts and circumstances of the present case.
169. The question, thus, to be examined by us in the facts and
circumstances of the present case, is whether the
procedure prescribed in the rules for recruitment of
Principal and Teachers of the minority educational
institutions aimed towards a fair and transparent
process of merit based selection, to ensure that only
those teachers, who would be best suited to impart
education in minority institutions would be selected; or
by prescribing methodology of recruitment in the rules,
the State has crossed the delicate line to reach on its
negative side, making the rules vulnerable and they are
required to be held as encroaching upon the right of the
minorities to administer their institutions by exercising
their choice to select teachers and, thus, impinge Article
30 (1). We are, thus, required to examine as to whether
the rules under challenge can withstand the time tested
dual stated down in the Ahmedabad, St. Xaviers3.
Page 221 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
170. We have to test the validity of the rules under challenge
keeping in mind of the basic principles that the
regulation, which:-
(i) does not tinker with the minority character of
the institution; and
(ii) does not interfere with the day to day
management of such institutions and has been
enacted for the purpose of maintaining standards
and excellence of education;
cannot be held to be bad, inasmuch as, the right of
the State to regulate education, educational standards
and allied matters cannot be disputed since the minority
institution cannot be allowed to fall below the standards.
Findings and conclusion on the impugned Provisions:-
171. We shall now proceed to record our findings on a careful
reading of the Rules, 2021 framed by the State
prescribing procedure for selection of principal and
teachers in the registered private secondary and higher
secondary minority schools in the State.
172. We may clarify, at this stage, that we are concerned here
with the aided minority institutions registered in the
State of Gujarat, who are before us as the petitioners.
We may also note that there is no quarrel about the
prescription of the eligibility qualifications under the
Page 222 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
regulations framed by the State Government namely the
Secondary Education Regulations’ 1974. Regulation 20
as referred in Appendix I and II of the Rules, 2021 for
selection of Principal and Teachers is the provision
which prescribes qualifications for the appointment of a
Headmaster and Teachers of a registered school in the
State. With respect to the prescription of the eligibility
qualification, only dispute raised herein is about the
prescription of “Head Master Aptitute Test” (HMAT) and
“Teachers Aptitute Test” (TAT), incorporated for
selection of Principal and teachers, by giving weightage
of marks obtained in the said test for the purpose of
preparation of the “list of ‘eligible candidates’ in the
order of merit.”
173. Proceeding with the challenge, we may record Section
40-A, saving clause in the Principal Act of 1972,
amended by the Gujarat Secondary and Higher
Secondary Education (Amendment) Bill, 2021 for
exclusion of the exceptions in the principal section or in
other words, for application of the provisions contained
in Clause (26) of Section 17, Section 34 (2) and Section
35 to any educational institutions established and
administered by a minority (religious and linguistic).
174. As noted hereinbefore, Section 17(26) confers powers on
the Board (Gujarat Secondary and Higher Secondary
Education Board) to lay down qualifications, methods of
selection of conditions of appointment, promotion and
termination of employment and providing for rules for
Page 223 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
conduct and discipline of headmaster and the teaching
and non-teaching staff of registered private secondary
and higher secondary schools.
175. The Gujarat Secondary and Higher Secondary Education
Act, 1972 had been enacted to streamline the pattern of
education in the State of Gujarat at the secondary and
higher secondary level institutions, so as to bring
uniformity and to achieve excellence in education. The
First regulations to carry out the purposes of the Act
have to be framed by the State Government in light of
the provisions contained in Section 54 of the Act’ 1972
and they continue to remain in force until new
regulations are framed and sanctioned.
176. The ‘Board’ defined under Section 2 (b) is the ‘Gujarat
Secondary and Higher Secondary Education Board’
established under Section 3, which is constituted of
experts in the field of education (specifically secondary
and higher secondary), as can be seen from the said
section. Amongst various powers and duties of the Board
prescribed in Section 17, the primary duty of the Board
is to advice the State Government on matters of policy
relating to secondary and higher secondary education in
general. The Board enjoys power and has a duty
amongst others; to prescribe for maintenance of
educational standards such as patterns of secondary and
higher secondary education; pertaining to educational
planning, program and organization; integration of
national and state policy with respect of secondary and
Page 224 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
higher secondary education; to recommend to the State
Government the curricula and detailed syllabi relating to
secondary and higher secondary education and to
approve and to recommend to the State Government the
textbooks prepared by the Gujarat State Board of School
Textbooks for the use in the registered schools; to guide
and help registered schools in their search in talent and
in their endevour to lead them to peaks of excellence; to
lay down the standards, including qualifications,
methods of selection and conditions of appointment,
promotion and termination of employment and rules for
conduct and discipline of the headmaster and the
teaching and non-teaching staff of the registered private
secondary and higher secondary schools; to conduct the
secondary and higher secondary school certificate
examinations and other examinations and award
certificates to candidates passing the said examination.
177. The Board is empowered to regulate private secondary
and higher secondary schools from registration of the
school to admission of students, selection of teaching
and non-teaching staff, conduct of examinations, all
aimed at achieving excellence of education.
178. Section 53 of the Act’ 1972 empowers the Board to make
regulations to carry out the purposes of the Act by giving
effect to the provisions of the Act, generally and
particularly relating to examinations and awarding
certificates as well as providing the Constitution, powers
and functioning of the Committee appointed under
Section 18.
Page 225 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
179. We may note that Clause (26) of Section 17, which was
initially excluded by virtue of original Section 40-A
(saving clause) from its application to minority
institutions, has now been made applicable to the
minority institutions. However, it only empowers the
Board to lay down qualifications, method of selection
and conditions of appointment, promotion and
termination of employment and rules for conduct of
discipline of Headmaster and teaching and non-teaching
staff of registered minority institution in the State of
Gujarat, which cannot be said to be transgression to the
right of the minority to administer their institutions
guaranteed under Article 30 (1) of the Constitution of
India.
180. We may simply record that Clause (26) of Section 17
only empowers the Board, which is an expert body in the
field of secondary and higher secondary institution to
regulate minority institutions by providing prescription
of qualifications etc. for the teaching and non-teaching
staff, in its power delegated by the Statute framed by the
State Government which can, in no manner, be said to
be beyond the jurisdiction of the State to regulate the
functioning of the minority institutions.
181. As regards Section 34 (2), which has now been applied
to minority institutions by the Amendment Act of 2021, it
only provides for empowering the Board to regulate the
recruitment and conditions of service including conduct
and discipline of persons appointed as headmasters,
Page 226 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
teachers and members of the non-teaching staff of the
registered private secondary and higher secondary
schools in the State.
182. We may note that the second proviso to Sub-section (2)
of Section 34 even empowers the private secondary and
higher secondary schools to make additional regulations
with the previous provision of the Board, consistent with
the basic nature and concept of basic education and not
inconsistent with the regulations made by the State in
the field. The power conferred upon the Board by virtue
of Sub-section (2) of Section 34 to make regulations
regulating the appointment and conditions of service
including conduct and discipline of teaching and non-
teaching staff of minority institution, in no manner, can
be said to be violative of Article 30 (1) of the
Constitution, for the settled legal position pertaining to
the power of the State to regulate as discussed above.
183. The third provision, which has now been applied to
minority institutions is Section 35 of the Act, 1972,
which confers power upon the State Government to
make rules prescribing for selection of teachers and
headmasters of registered private secondary and higher
secondary schools.
184. In light of the law laid down of the Constitution Bench of
the Apex Court in the Ahmedabad St. Xavier’s3 and
TMA Pai Foundation7 the right conferred on the
religious and linguistic minorities to administer
educational institutions of their choice is not an absolute
Page 227 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
right and is not free from regulations, we find that by
mere application of the provisions of Section 17 (26),
Section 34 (2) and Section 35 to the registered aided
minority institutions in the State, it cannot be said that
the State has crossed the line to encroach upon the
rights of the minorities to run and administer their
institutions. The power of the State to regulate, though,
is not unfettered or unlimited but mere conferment of
power by enabling provisions itself, cannot be perceived
as infringement of the protection of Article 30 (1) of the
Constitution.
185. The language of the above provisions is not such, which
can be said to be unfettered, uncannalized or unlimited
power of the State to make regulations as while framing
regulations, the State legislature or the Board are
expected to be alive of the constraint on their powers in
the matter of making law regulating minority institutions
put forth by the Constitution [Article 30(1)], which do
not interfere with the right of minorities management to
administer their institutions.
186. Mr. Mihir Joshi, the learned Senior Counsel, for the
petitioners, in support of his contentions to challenge the
validity of the provisions, would argue that the
legislative history of the enactment of the Principal Act’
1972 show that the President of India had shown
deference while evaluating the original bill for the Act,
1972, and the bill was suitably amended by
promulgation of the Ordinance No.6 of 1972 to exclude
Page 228 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
the provisions of Section 17 (26), Section 34 (2) and
Section 35 from its applicability to the minority
institutions with the clear idea, by the legislature, that
there shall be no fetters on the right of the minority. To
answer this, suffice it to say that, in the present
scenario, when with the judicial pronouncements of the
Apex Court clout on the power of the State to regulate
the minority institutions has been cleared, the reference
to the incident occurred at the time of enactment of the
principal Act’ of 1972, the original enactment, would be
wholly irrelevant being prior to the Ahmedabad St.
Xavier’s3. With the development of the law holding the
field, as deliberated above, it cannot be argued that the
power conferred upon the State to make regulations by
bringing amendment in the Statute incorporating
enabling provision is itself hit by Article 30 (1) of the
Constitution of India.
187. Suffice it to record that three provisions in the Statute
namely Section 17 (26), Section (2) and Section 35,
brought into force by the Amendment Act’ of 2021, are
merely enabling provisions, empowering the State
Government and the Board, as the case may be, to make
regulations, to regulate the minority institutions, so as to
carry out the purposes of the Act’ 1972, the object of
which is to achieve excellence in education by
maintaining standards of minority institutions. There can
be no quarrel about the enabling power of the State to
regulate, which obviously is circumscribed by the
Constitutional framework in Article 30(1).
Page 229 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
188. The point pressed by the learned Senior Counsel that the
Amendment Act, 2021 was brought ignoring the
legislative history of exclusion of the aforesaid provisions
to minority institutions in the State, at the time of
enactment of the principal Act’ 1972 therefore, does not
have any force.
189. Further submission of Mr. Mihir Joshi, learned Senior
Counsel that is that Section 35 of the Act, 1972 applied
by the amendment of Section 40-A by the Amendment
Act 16 of 2021 being a general provision without any
guidance conferring unfettered discretion upon the State
executives to frame rules providing procedure for
selection of Principal and teachers of minority
institutions suffers from excessive delegation of
legislative authority amounting to its abdication. Dealing
with the same, suffice it to note that Section 35 of the
Act, 1972 is an enabling provision conferring power on
the State to regulate. As to how and to what extent the
power to regulate is to be exercised by framing rules or
regulations by the State executives is guided by the
Supreme law of land, which is the Constitution of India
under Article 30 (1), which confers right on the
minorities (religious and linguistic) to establish and
administer educational institutions of their choice. The
restraint on the power of the State to frame rules, thus,
being a constitutional mandate, is to be adhered to while
making laws / rules, which seek to regulate minority
institutions. This restraint can also be found in Article 13
Page 230 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
(2) of the Constitution, which prohibits the State from
making any law, which takes away or abridges the rights
guaranteed by Part – III of the Constitution of India.
190. Saving such law, which is totally destructive or abridges
the guaranteed right in Part III in any form which have a
secondary or indirect or incidental effect, where it
crosses the line of permissible regulations and enters the
forbidden territory of restriction or abridgment, would
not be possible as it would have to be struck down being
violative of Article 30 (1).
191. To moot the point, we may take guidance from the
observations of the Apex Court in the Ahmedabad, St.
Xavier’s3 in Paragraph Nos. ’99’ and ‘174’, which state
as under:-
“99. Argument has been advanced on behalf of the
respondents that unless a law or regulation is
wholly destructive of the right of minorities under
Article 30(1), the same would not be liable to be
struck down. This argument is untenable and runs
counter to the plain language of Article 13.
According to that article, a law would be void even
if it merely abridges a fundamental right
guaranteed by Part III and does not wholly take
away that right. The argument that a law or
regulation could not be deemed to be unreasonable
unless it was totally destructive of the right of the
minority to administer educational institutions was
expressly negatived by this Court in the case of
Rev. Sidhajbhai Sabhai42. After referring to the
case of Re Kerala Education Bill4 this Court
observed in the case of Rev. Sidhrajbhai Sabhai
42
……”
Page 231 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
“174. The application of the term “abridge” may
not be difficult in many cases but the problem
arises acutely in certain types of situations. The
important ones are where a law is not a direct
restriction of the right but is designed to
accomplish another objective and the impact upon
the right is secondary or indirect. Measures which
are directed at other forms of activities but which
have a secondary or indirect or incidental effect
upon the right do not generally abridge a right
unless the content of the right is regulated. As we
have already said, such measures would include
various types of taxes, economic regulations, laws
regulating the wages, measures to promote health
and to preserve hygiene and other laws of general
application. By hypothesis, the law, taken by itself,
is a legitimate one, aimed directly at the control of
some other activity. The question is about its
secondary impact upon the admitted area of
administration of educational institutions. This is
especially a problem of determining when the
regulation in issue has an effect which constitutes
an abridgment of the constitutional right within the
meaning of Article 13(2). In other words, in every
case, the Court must undertake to define and give
content to the word ‘abridge’ in Article 13(2). [ See
generally the Judgment of one of us (Mathew, J.) in
Bennett Coleman & Co. v. Union of India44] The
question to be asked and answered is whether the
particular measure is regulatory or whether it
crosses the zone of permissible regulation and
enters the forbidden territory of restrictions or
abridgment. So, even if an educational 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 regulations do not take away or abridge the
guaranteed right. Regular tax measures, economic
regulations, social welfare legislation, 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
44
(1972) 2 SCC 788
Page 232 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
that borne by others engaged in different forms of
activity, the similar impact on the right seems
clearly insufficient to constitute an abridgment. If
an educational institution established by a religious
minority seeks no recognition, affiliation or aid, the
state may have no right to prescribe the
curriculum, syllabi or the qualification of the
teachers.”
192. The arguments advanced by the learned Senior Counsel
that Section 35 of the Act, 1972 cannot be made
applicable to minority institutions in its original form as
it would result in excessive delegation of legislative
authority to the State executives, which may result in
the State executives making laws to infringe Article 30
of the Constitution, therefore, cannot be sustained. The
submission that unfettered discretion conferred on the
executives, by virtue of Section 35 of the Act,1972,
without laying down any standards or rules of guidance
to make use of it, would result in infringement of the
equality doctrine enshrined in Article 14 of the
Constitution of India, where positive discrimination
amongst different classes of person is permissible is also
to be turned down being far fetched.
193. We may only say that Section 35 is an enabling provision
conferring power on the State to make rules providing
procedure for selection of teachers and headmaster of
registered private secondary and higher secondary
schools, which itself is guided by the Constitutional
provisions in Article 30 (1) read with Article 13 and no
further guidelines is required to be incorporated by the
legislature, as the legislature is expected to make laws,
Page 233 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
which are not inconsistent with the provisions of the
Constitution, specifically Part – III. All laws of the State,
in any case, have to confirm to the Constitutional
mandate and there being specific mandate under Article
30 (1) about the protection of right of minority to
establish and administer their institution, no more
guidance is needed in the State legislation empowering
the State Government (State executives) to make laws,
in exercise of Section 35 of the Act’1972.
194. The above noted grounds to assail the amendment of
Section 40-A to bring in the minority educational
institutions under the umbrella of the enabling power of
the State under Section 34 (2) and Section 35 being hit
by Article 30 (1) of the Constitution and plea to declare
it as ultra vires to the Constitution is, therefore, turned
down.
195. The contention that the same enactment, which governs
educational institutions run by the majority cannot be
applied to regulate the minority institution on the plea of
violation of Article 14, is also liable to be turned down
for the discussion about the concept of equality,
principle as culled out from the long line of decisions of
the Apex Court that the whole object of conferring the
special rights on minorities under Article 30 is to ensure
that there will be equality between the majority and the
minority.
196. The impugned provisions of the Act, 1972, conferring
enabling power upon the State to make rules to regulate
Page 234 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
minority institutions in order to bring equality in the
matter of administration of minority institutions keeping
in mind the special protection granted to under Article
30, cannot be said to be hit by Article 14 or ultra vires to
Articles 29 and 30 read with Article 14 of the
Constitution.
197. Coming to the selection Rules ‘2021 regulating the
selection of the Principal and the teachers in the
registered Private Secondary and Higher Secondary
Minority Schools framed by the State Government, in
exercise of powers conferred under Section 35 of the
Act’ 1972, we may record that two separate rules have
been framed in the matter of appointment of the
Principal and the teachers of the schools having minority
status in the State, which are pari materia in most of the
aspects. The learned advocates for the petitioners have
pressed common grounds of challenge to the validity of
both the rules. We are, therefore, analysing both the
rules together on the common aspects for dealing with
the arguments of the learned Senior advocates.
198. The “Registered Private Secondary and Higher
Secondary Minority Schools” as defined in Rule 2(b) of
the Rules ‘2021 are such minority institutions (both
religious and linguistic) which are receiving Grant-in-aid
from the State Government. Rule 3 of the Rules ‘2021 for
the Principal prescribed for the Constitution of the
Scrutiny Committee, which has been extracted in the
initial part of this judgment.
Page 235 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
199. A perusal of the same indicates that while the Director of
Schools, State of Gujarat is the Chairman, the Secretary
of the Gujarat Secondary and Higher Secondary
Education Board is the Ex-officio Member. Out of nine
(9) Members and a Chairman of the Scrutiny Committee,
five (5) are the representatives from the Minority School
Management nominated by the Government. The Head
Quarter of the Scrutiny Committee for the minority
schools, as stated in the Rules, shall be at Gandhinagar.
200. The duties and functions of the Scrutiny Committee for
the minority schools (Constituted under Rule 3) as
prescribed in Rule 6, includes inter alia (1) ascertain the
number of posts of the Principals/teachers, for which
recruitment is to be made; (2) invite applications by an
advertisement in the newspaper; (3) scrutinize the
applications received and prepare the school-wise (in
case of Principal) and School and subject wise (in case of
Teachers) merit wise on the basis of weightage of the
marks secured by the candidates in “Head Master
Aptitude Test” (HMAT)/ “Teachers Aptitude Test” (TAT),
as the case may be, conducted by the State Examination
Board and the educational qualification as also the
experience, if any, in the ratio prescribed therein [rule
6(3)], (4) prepare the list of 15 candidates in the order of
merit in accordance with the Rule 6(3) and send it to the
Minority Schools Selection Committee for personal
interview. We may note that Rule 11 of the Rules ‘2021
governs the preparation of merit list for personal
interview by the Scrutiny Committee and provides the
Page 236 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
criteria for consideration of the marks secured by the
candidates for the Aptitude test and the weightage for
preparation of the merit list, as per the Appendix I and II
attached to the Rules.
201. The Appendix I & II provide for allocation of marks for
educational qualifications required under Regulation
20(1) of the Gujarat Secondary and Higher Secondary
Education Regulations ‘1974, such as Graduate, Post-
Graduate degrees as well as required experience, and
the methodology for calculation of weightage of aptitude
test (HMAT/TAT) and educational qualification. A
perusal of the Appendix I and II indicates that maximum
marks have been allocated for each level of
qualifications and experience of teaching on the post of
Principal, for selection of Principal and as per the
eligibility criteria for selection of Teachers. The criterias
for calculation of weightage for the Aptitude test and
weightage of qualification virtually do not leave any
scope of discretion to be exercised by the Scrutiny
Committee for assessment of the merit of the candidates.
On assessment of eligibility criteria prescribed in
Regulation 20(1) of the Regulations ‘1974, Rule 4 of the
Rules, 2021 clearly provides that the requisite
educational qualification to be eligible for appointment
of a Principal/teachers under the provisions of the Act
‘1972, shall be as prescribed under the Regulations
‘1974 framed thereunder, as amended from time to time.
The additional qualification of the basic knowledge of
computer application, as prescribed in the Gujarat Civil
Page 237 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Services Classification and Recruitment (General) Rules,
1967 is not under challenge before us.
202. Having gone through the provisions of Rule 6 read with
Rule 11 under Appendix I and II to the said rules, it is
evident that the role of the Scrutiny Committee in
preparation of the list of 15 candidates in the order of
merit by inviting applications by an advertisement and
scrutinizing the applications is to ensure that only those
candidates possessing requisite qualification and
meritorious amongst the eligible, are brought within the
zone of consideration for selection to the post of
Principal and teachers. With the specific marks provided
in Appendix I and II for each criteria prescribed, no
leverage remains with the Scrutiny Committee to make
any deviation in the matter of preparation of the list of
eligible candidates in the order of merit. The list of
eligible candidates prepared by the Scrutiny Committee
as per Rule 6(4) though termed as “the merit list for
personal interview” in Rule 11, but as is clear from the
careful reading of the Rules, the said list is only a “list of
the eligible candidates in the order of merit”, who meet
the requisite eligibility qualification as prescribed in the
Regulations ‘1974 as also the additional qualifications
prescribed by the State Government. The list which is to
be sent by the District Education Officer to the Minority
School Selection Committee for personal interview as
per Rule 11 is the list of eligible candidates shortlisted
for the selection process, which is to be conducted by
the Minority School Selection Committee by personal
Page 238 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
interview.
203. Rule 12 further only requires the District Education
Officer to verify the certificates of the qualification
criteria etc. of each of the candidates placed in the list of
eligible candidates in the order of merits, before
issuance of call letter to such candidates for personal
interview. The power conferred upon the District
Education Officer to verify the genuineness of the
documents pertaining to the eligibility criteria of the
shortlisted candidates, cannot be said to be
transgression of the powers of the State into the arena
of the jurisdiction of the Minority School Management
Committee, to select a suitable candidate after
interview.
204. Rule 13 which provides the selection procedure
conducted by the Minority School Selection Committee
clearly states that subject to verification of the
documents by the District Education Officer after
ascertaining the eligibility qualifications of each
candidate placed in the list of eligible candidates, as per
the rules, the Minority School Selection Committee shall
make an assessment of the suitability of the candidates
in the personal interview. Sub-rule(3) of Rule 13
provides the norms to be followed by the Minority
School Selection Committee while allocating marks to
the candidates in the interview. Sub-rule(3) of Rule 13
provides that after personal interview on the basis of the
marks allocated to the candidates, final select list of not
Page 239 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
more than three candidates shall be prepared by the
Minority School Selection Committee and
recommendation be made to the Minority School Trust/
Management for the appointment. The order for
appointment be issued to the first placed candidate out
of the final select list so prepared and, in case, the
candidate at sr.no.1 does not join, the second placed
candidate shall be issued appointment order; in the
similar fashion, in case of non-joining of the second
placed candidate, the third-positioned candidate be
issued appointment letter.
205. The provision prescribing for procedure of selection in
Rule 13, to be adopted by the Minority School Selection
Committee, providing the norms to be followed by the
Selection Committee during the interview to assess the
ability and knowledge of the candidate and preparation
of the final selection list on the basis of marks allotted by
it, cannot be said to an inroad to the rights of the
minority to select a Principal or teacher according to
their choice.
206. The norms prescribed in the Rule 13(3) are the
guidelines to be followed by the Minority School
Selection Committee to streamline the selection process
by assessment of the suitability of the candidates for
selection to the post of Principal/teacher, cannot be said
to be an interference in the right of the minority
management to choose a candidate who meets all
eligibility criteria and is suitable to the expectation of
Page 240 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
the school management. The guidelines though are to
be followed scrupulously, but they cannot be said to
have an effect of curtailing the right of the Minority
School Management or the Governing Body to choose
the suitable candidates conducive to their institution
directly or indirectly. The provisions in Rule 13(3) that
the final merit (select) list of three candidates shall be
prepared on the basis of the marks allocated in the
personal interview by the committee and the first placed
candidate shall be given preference in the appointment,
cannot be said to be a fetter on the choice of the
minority management, inasmuch as, the marks in the
personal interview are to be allocated by the Selection
Committee itself. The freedom to choose a candidate on
assessment during the course of personal interview, who
would be suitable to the culture, ethos and the minority
character of the institution is left with the Minority
School Management Committee.
207. The provisions of the Selection Rule prescribing that the
first placed candidate should be given the appointment
letter and the second and the third placed candidate will
get their chance, in case of refusal to join by the
candidates placed higher in the select list, are projected
as the provisions interfering with the rights of the
minorities to choose the Principal/teachers suitable to
their institutions. In our considered opinion, the
provision cannot be treated as a step of the rule making
authority to cross the delicate line of permissible limit of
reasonable restrictions and is liable to be rejected as
Page 241 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
misconceived, for the simple reason that the minority
institutions cannot be permitted to argue that the
Minority School Management or the Governing Body be
given leverage to appoint a candidate lower in merit
than the candidate who has obtained higher marks in the
personal interview and placed higher in the final merit
list. Once choice is made by the Minority School
Management Committee as to who would be the most
suitable candidate amongst all eligible candidates by
allocation of marks in the interview, the school
management cannot be permitted to deviate and choose
anyone, even lower in merit, for issuance of appointment
letter.
208. The submission of the learned senior counsels for the
petitioners is that prescribing total marks allocated for
preparation of the pool of the eligible candidates by the
Scrutiny Committee and the procedure for selection of
the Principal/teachers by the Minority School Selection
Committee, is the proof of excessive control of the State
in the whole selection process and nothing is left
actually to the discretion of the minority institutions in
the matter of making selection of Principal and teachers
of their choice who could uphold the ethos, culture and
traditions of the minority (religious and linguistic). The
submission is that Rule 13 providing for selection
procedure leaves a very limited choice for the Minority
School Management to select the Principal/teachers
from the pool of eligible candidates in the list prepared
by the Scrutiny Committee. The argument is that instead
Page 242 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
of prescribing that only the first placed candidate in the
final select list shall be issued appointment letter by the
Minority School Trust/Management, the discretion
should have been left to the management to choose a
better candidate who may not be at Sr. no.1 in the final
select list prepared by the Minority School Selection
Committee, but is best suited to the minority character
of the institution.
209. The further contention is that only 40 marks have been
left to the discretion of the Minority School Selection
Committee which have further been distributed amongst
the members of the Minority School Selection
Committee, which include outsiders, in the constitution
provided under Rule 3 of the Rules ‘2021, which is not
sufficient to make a choice. The contention is that the
reading of the Rule, as a whole, makes it clear that the
Minority School Management/Governing Body has been
completely displaced and the decision making authority
of the Governing Body of the minority management has
been usurped by the Scrutiny Committee and the
Selection Committee prescribed in the rules.
210. There is a challenge to the Constitution of the Minority
School Selection Committee prescribed in Rule 7. It was
vehemently argued by the learned senior counsel for the
petitioners that the Rules ‘2021 prescribing the selection
criteria for the Principal/Teachers have crossed the line
drawn by the Apex Court and cannot withstand the dual
test of reasonableness and being rationale, i.e. the
Page 243 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
regulations being conducive to the minority character of
the institution.
211. It was urged that a perusal of the rule 7 indicates that
the Chairman of Minority School Selection Committee
for selection of Principal/Teachers though is one of the
trustees nominated by the Trust/Management of the
minority school, who is indisputably obviously an insider,
but the provision including other three members namely,
(i) an academician outside of the Taluka; (ii) one
representative to be nominated by the concerned
Minority School Trust/Management and (iii) a Principal
of another Grant-in-aid registered private school to be
nominated by the concerned Minority School
Trust/Management, who are all outsiders and have been
thrust upon the minority school trust/management is an
interference. The choice of Members to be incorporated
in the constitution of the Minority School Selection
Committee under Rule 7 of the Rules ‘2021, is nothing
but an infringement in the right of the management to
make a choice. It was urged that when the selection
committee itself is constituted of outsiders, how can it be
assumed that the choice made by the committee is the
choice of the School Management/Trust. A camouflage
is created as though the academician outside of the
Taluka and a Principal of another Grant-in-aid registered
private schools though are to be suggested/nominated in
the matter of selection of Principal by the concerned
Minority School Management/Trust, but they both are
rank outsiders. The regulations (rule 7) prescribing the
Page 244 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Constitution of the Minority School Selection Committee
for selection of the Principal Teachers provided in the
Rules ‘2021 is contrary to the spirit of the statement of
law made by the Apex Court in Ahmedabad St.
Xavier’s3.
212. Testing the above submissions, with the standards laid
down in Ahmedabad St. Xavier’s3, we may reiterate
that a balance has to be kept between the two
objectives, that of ensuring the standard of excellence of
the institution and that of preserving of rights of the
minorities to establish and administer their education
institution. It is settled law that the regulation which
embraces and reconciles the two objectives cannot be
considered to be unreasonable. The submission of the
learned senior counsel for the petitioners that
prescription of the constitution of the Selection
Committee in Rule 7 and the method and manner of
preparation of final selection list after interview under
Rule 13, are serious inroads on the rights of
administration and appear perilously near violating their
right, is not found convincing considering the law
developed by the Apex Court since over 5 decades.
213. We find guidance in the statements made in S.K. Mohd.
Rafique18 (para Nos. ’49’ and ’50’) considering the
leading judgment in Ahmedabad St. Xavier’s3 and
Frank Anthony Public School Employees
Association45 that “excellence of the instructions
provided by an institution would be dependent directly
Page 245 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
on the excellence of the teaching staff and would in turn
depend inter alia on the quality of teachers. The
regulations which serve the interest of the students as
also the interest of the teachers are of paramount
importance in good administration. The regulations in
the interest of efficiency of teachers by bringing
transparency in the selection process are necessary for
preserving harmony amongst the institutions, inasmuch
as, the appointment of the teachers is an important part
of maintaining the excellence in education institutions.
It is quite natural that qualitatively better teachers will
ensure imparting education of highest standard and will
help in achieving the excellence. The governing criteria
providing for selection of better qualified teachers who
impart education in recognized aided minority
institutions can be said to be the most appropriate
criteria to bring the most conducive atmosphere in place
where the institution achieve excellence and imparts
best possible education.”
214. In S.K. Mohd. Rafique18, the Apex Court has further
proceeded to refer and examine that if the intent is to
achieve the excellence in education, would it be enough
if the educational institutions concerned were to employ
teachers with minimum requisite qualifications in the
name of exercise of right under Article 30 of the
Constitution, while better qualified candidates are
available to impart the education. Will it be proper for a
minority education institution to select the teachers with
lower qualifying percentile index disregarding those who
Page 246 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
are better qualified. It has posed a question “will that
sub-serve the pursuit excellence in education ?”.
215. While answering the same, it was noted by the Apex
Court that there may be a situation where minority
education institution can agitate their right where under
the regulatory regime, the candidates who are otherwise
less qualified, are being nominated in the minority
education institutes and the Minority Education
Institutes are forced to accept such less meritorious
candidates in preference to the better qualified
candidates. But if in the regulatory regime, the
candidates are selected and nominated to impart
education are better qualified, would the minority
institution be within its rights to reject such nominations
only in the name of exercise of right of choice? The
choice so exercised would it not be in the pursuit of
excellence.
216. The Apex Court has gone on to hold that right under
Article 30 has not been accepted to be an absolute and
unqualified and the National interest must always
permeate and apply, the excellence and merit must be
the governing criteria. Any departure from the concept
of merit and excellence would not make any minority
educational institution an effective vehicle to achieve
what has been contemplated in various decisions of the
Apex Court. If merit is not the sole and governing
criteria, the minority institutions may lag behind non-
minority institutions rather than keeping in step with
Page 247 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
them. It was observed that rejection of a better
candidate available with the minority institution will
never help to such institution in achieving the excellence
and such rejection would not be within the scope of
rights protected under Article 30(1) of the Constitution.
217. In light of the said statement of law, as noted
hereinabove, the governing criteria brought in place by
the Rules ‘2021, framed by the State Government under
Section 35 of the Act ‘1972, is such which will help the
minority institutions to choose the best available
candidate out of the list of eligible candidates in the
order of merit prepared by the Scrutiny Committee. The
role of the Scrutiny Committee, as noted hereinabove
from the careful reading of the Rules, is wholly
circumscribed by the provisions in Rule 11 read with
Appendix I and II of the Rules ‘2021 and the eligibility
list in the order of merit is to be prepared by the
Scrutiny Committee chaired by the Director of Schools
of State of Gujarat out of those candidates who possess
the eligibility criteria. The criteria of allocation of 60%
weightage for the Aptitude test (HMAT & TAT)
conducted by the State Examination Board is also
circumscribed by the calculation prescribed in Appendix
II. The criteria for allocation of 40% weightage of
educational qualification is prescribed in Appendix I.
As per the Appendix I, as can be seen, that 10 maximum
marks are prescribed for Graduate Degree; 7 for the
Post-Graduate Degree; 10 for the Graduate Degree in
professional courses; 5 for Post-Graduate Degree in
Page 248 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
professional courses; 5 for experience, as per regulation
20(1) of the Gujarat Secondary and Higher Secondary
Education, Regulations, 1974 which prescribes the
qualifying criteria for selection to the posts. “The
experience” as a Principal in a Registered Private
Secondary and High Secondary School has been
allocated maximum marks of (@ per year 0.5). This
criteria of allocation of maximum marks to calculate 40%
weightage of qualification for the purpose of preparation
of the list of eligible candidate in the order of merit, to
prepare a pool of meritorious candidates for placing the
list before the minority school Selection Committee, in
our considered opinion, is in the spirit of the law laid
down by the Apex Court in 1974 in Ahmedabad St.
Xavier’s3 and consistently followed uptil the year 2020
in S.K. Mohd. Rafique18.
218. The governing criteria prescribed in the Rules, 2021 for
the post of Principal, in no manner, can be said to be hit
by Article 30 of the Constitution, inasmuch as, the
legislature has taken due care of the interest of the
Registered Minority Institutions receiving Grant-in-aid
from the State exchequer, that they may get the best
qualified and suitable candidates to impart education.
The provision ensures that the Scrutiny Committee
adopts a fair criteria to prepare a pool of the best
available talent purely on the merit from amongst the
applicants by ensuring publication of vacancies in the
two widely circulated newspapers, one in Gujarat
language and the second in English language in the
Page 249 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
locality.
219. A fair and transparent selection is the hallmark of
“excellence” in education, which would satisfy both the
National interest as well as the interest of the minority
institutions. It is stated by the Apex Court in S.K. Mohd.
Rafique18 that the minorities are as much part of the
Nation as the majority, and anything which affect the
interest of the majority or the minority section of the
population, would be against the National interest. To
promote the interest of the minority institutions to
produce the best possible talent, who in the pursuit of
their career would contribute in the progress of the
Nation, it is imperative that the best qualified and the
most suitable candidate is selected by adopting a fair
selection procedure purely on merit basis where due
weightage is given to the ideology of the minority
community generating an atmosphere of qualitative
progress and sense of achievement commensurate with
societal object and ideology, which will be in true
National interest. (Ref: para 52)
(emphasis supplied)
220. The regulations, which promote such a process of
selection of a candidate for the post of principal or
teacher of a minority institution, cannot be said to be
violative of the rights of the minority educational
institution under Article 30 of the Constitution. It needs
to be emphasized that in the process of selection of the
best qualified and the most suitable candidate, the
Page 250 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
qualifying marks in the personal interview are allocated
by the Minority School Selection Committee headed by
the Nominee of the concerned Trust/Management of the
minority school, to prepare the final select list. The
Committee is free to choose a candidate out of the most
qualified candidates from the list prepared by the
Scrutiny Committee, who is the best suited to the
ideology of the school management. There is absolutely
no fetters on the powers of the minority school
management in selection of the best suited candidate for
its own school.
221. As to the Constitution of the Minority School Selection
Committee, it may be noted that the Committee is
chaired by one of the trustees nominated by the
concerned Trust/Management of the Minority School (an
insider). Amongst three members, an academician
outside of the Taluka is to be chosen by the concerned
Minority School Trust/Management, and to be appointed
by the District Education Officer as a Member of the
Committee. The second Member is a representative of
the concerned Minority School Trust/Management,
nominated by it. The third Member namely one
Principal of another Graint-in-aid Registered Private
School, is also to be nominated by the concerned Trust/
Minority School Management. It is, thus, clear that two
Members namely an academician outside of the Taluka
and the Principal of any other Grant-in-aid Registered
Private School though are outsiders, but are
chosen/nominated by the concerned Trust/Management
Page 251 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
of Minority Institutions. One member, who is a
representative may be an insider as well, as nomination
of their representative is left with the Minority School
Trust/Management.
222. An affidavit dated 24.10.2024 has been filed by the
Principal Secretary (Primary & Secondary Education) on
behalf of the State Government that in the selection of
an academician outside of the Taluka, the requirement of
consultation with the District Education Officer as
perceived, has been done away and the table in Rule-7
can be read down to the extent that the Minority Schools
shall have complete discretion and any such suggestion
given by the Minority School have to be carried out by
the District Education Officer by issuing consequential
appointment order. The appointment of the said member
by the District Education Officer is a ministerial act to
give legal framework to the Constitution of the
committee.
223. In so far as the Education Inspector of the office of the
District Education Officer of the concerned District is
concerned, it is clarified in the said affidavit that he
being the Member Secretary, will have no say in the
selection process of a candidate by allocation of marks
as his only job is to call for meetings and maintain
records to ensure transparency. The entire selection
process is, thus, effectively controlled by the
representatives of the Minority School without any
interference from the State Government. The quorum for
Page 252 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
the meeting of Minority School Selection Committee
shall be three though the presence of the District
Education Inspector being the Member Secretary has
been made compulsory. Rule 7 (1) of the Rules, 2021
cannot be read to mean that the quoram of three would
include Member Secretary as well, and he would
participate in the personal interview. This submission
made by the learned senior counsel for the petitioners
has been clarified by the learned Advocate General and
his contention is that the Member Secretary being the
District Education Inspector cannot participate in the
selection process for allocating the marks, which seems
to be plausible and acceptable. Once the Chairman, who
is the trustee nominated by the concerned
Trust/Management of the Minority School and three
Members are nominated by the concerned Minority
School Trust/Management to constitute the Minority
School Selection Committee, the Constitution of the
committee prescribed in the rules can not be said to
have resulted in displacement of the Minority School
Management. There is no fetter on the choice of the
Minority School Management in making selection of
Principal and teachers for minority schools.
224. As regards the process conducted by the Scrutiny
Committee (constituted under Rule 3) as provided under
Rule 6 & 11, suffice it to say that the marks allocated by
the Scrutiny Committee, circumscribed by the criteria
provided in Appendix I and II, are not to be added for
preparation of the final select list. The marks allocated
Page 253 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
by the Scrutiny Committee for the educational
qualifications are as per the qualifying criteria provided
under Regulation 20(1) of the Regulations ‘1974, which
applies equally to both the minority and majority
institutions recognized by the State of Gujarat. As
regards the Aptitude test (HMAT) conducted by the
State Examination Board and the weightage given to it,
we may note from Rule 11 (b) that the marks secured by
the concerned candidate in HMAT are valid for five
years from the date of the result and the candidate who
has secured at least 50% marks in HMAT is treated as
qualified for allocation of 60% weightage. As per the
guidelines of the State, a candidate is at liberty to
appear in HMAT conducted by the State Examination
Board for more than one time.
225. Coming to the Teachers Selection Rules ‘2021, as noted
above, it is pari materia to the rules pertaining to the
selection of the Principal. The Constitution of the
Scrutiny Committee in Rule 3 of the Teachers Selection
Rules ‘2021 is the same as that of the Principal and
there is no difference in the duties and functions of the
Scrutiny Committee as also the mode and manner for
preparation of the list of eligible candidates in the order
of merit, for personal interview by the Minority School
Selection Committee. The selection procedure to be
adopted by the Minority School Selection Committee is
the same as that prescribed in Rule 13 for the Principal.
The only difference is of the weightage of 70% for
Teachers Aptitude Test (TAT) examination conducted by
Page 254 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
the State Examination Board and 30% weightage of the
prescribed educational qualification for the post. The
criteria for prescribing marks for calculation of 70%
weightage of TAT and calculation of 30% weightage of
educational qualification is circumscribed by the
prescription in Appendix I & II attached to the rules. The
Minority School Selection Committee is to select a
candidate after interview from the pool of the eligible
candidates prepared by the Scrutiny Committee. The
marks allocated by the Minority School Selection
Committee out of 10 (total 10 marks) in the personal
interview, shall be the basis for preparation of the final
select list.
226. The Constitution of the Minority School Selection
Committee for selection of the teachers as provided in
Rule 7 of the said Rules is the Chairman, who is one of
the trustees nominated by the trust/management of the
minority school and three Members, out of whom; one is
the representative to be nominated by the Minority
School Trust/Management and another is Principal or in-
charge Principal of the concerned minority school. Only
one Member of the Scrutiny Committee is an
academician outside of the Taluka, who can be said to be
an outsider, but he is also to be nominated by the
concerned Minority School Trust/Management.
227. In light of the aforesaid affidavit filed on behalf of the
State, the consultation with the District Education
Page 255 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Officer for nomination of an academician outside the
Taluka is already done away, and the appointment made
by the District Education Officer is only a ministerial act
so as to give a legal framework to the Constitution of the
Selection Committee. The contention of the learned
Senior counsels that the Minority School Selection
Committee for selection of teachers, is primarily a
Committee comprising of the outsiders, is, thus, not
substantiated.
228. Looking to the role of two Committees, namely the
Scrutiny Committee and Selection Committee in the
entire selection process, we are of the considered view
that the committees constituted under the Rules ‘2021
for two stages of selection, one for verification of the
qualifying eligibility criteria specified by the State under
the Regulation, 1974 and preparation of the list of
eligible candidates in the order of merit, which is also
comprised of the five representatives of the concerned
Minority Institutions, and another to select the
candidates finally after interview by allocation of marks,
which comprised of the representatives of minority
institutions (primarily and wholly), is an attempt of the
State Government to balance the twin objectives; of
achieving academic excellence while retaining minority
character of the institution by giving the freedom in
selection, in the spirit of the judgment of the Apex Court
in Ahmedabad St. Xavier’s3, T.M.A. Pai Foundation7,
S.K. Mohd. Rafique18. Under the Rules, there is an
effective representation of the concerned Minority
Page 256 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Institutions at the stage of scrutiny and they have a
complete control in the final selection process by
personal interview. The Rules ‘2021, thus, ensure that
the minority character of the institution is preserved
while the best and most suitable candidate is selected
through a fair and transparent procedure of selection, in
conformity with the qualifying criteria provided in the
Regulations ‘1974.
229. There is no dispute with regard to the right of the State
to prescribe the qualification eligibility criteria which
has been prescribed in the Regulations ‘1974 and the
Scrutiny Committee is constituted just to ensure that the
prescription in the Regulations ‘1974 is adhered to and
out of all eligible candidates the best ones are kept in
the list after due verification for making pool of the
qualified candidates. Tested on the anvil of the dual test
prescribed in Ahmedabad St. Xavier’s7, the Rules
‘2021 (both for the Principal and Teachers) satisfied twin
conditions, and as such, they cannot be said to be such
which tinker with the minority character of the
institutions registered in the State and interfere with the
day-to-day management of such institutions.
230. Having said that, we also reject the contention of the
learned Senior counsels for the petitioners that the
prescription of the requirement of weightage of 60% for
a candidate who has passed the Head Master Aptitude
Test (HMAT) and the Teachers Aptitude Test (TAT)
Page 257 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
conducted by the State Examination Board, is in teeth of
the decision of the Apex Court in Pramati Educational
Cultural Trust20, inasmuch as, the prescription of
Teachers Aptitude Test (TAT) and the Right to Education
Act, 2009 has been held in-applicable to the Minority
School Institutions protected under Article 30(1) of the
Constitution. We may note that the decisions of the
Bombay High Court and the Madras high Court relied on
by the learned senior counsels for the petitioners are the
cases where the requirement of Teachers Eligibility Test
(TET) prescribed under the regulations framed by the
National Council of Teachers (NCTE), the regulatory
body constituted to ensure strict implementation of the
RTE Act ‘2009, was insisted upon.
231. In the facts and circumstances of those cases, it was
held therein that the rules prescribing eligibility
qualification by undertaking an Aptitude test prescribed
by the Regulation framed by the National Council of
Teachers (NCTE), further impinges the rights of the
minority. The question therein was of the applicability
of the guidelines framed under the RTE Act, 2009 and by
the National Council for Teachers Education, which
being the regulatory body constituted to ensure strict
implementation of the RTE Act, 2009, has no power to
regulate the minority institutions.
232. In the instant case, the Head Masters Aptitude Test
(HMAT) and the Teachers Aptitude Test (TAT) is the
requisite qualification prescribed by the State
Page 258 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Government, examination of which is conducted by the
State Examination Board, so as to achieve the standards
of excellence in the field of education. The prescription
of the qualification criteria of passing the Head Master
Aptitude Test (HMAT) and Teachers Aptitude Test (TAT)
conducted by the State Examination Board and the
weightage for the Aptitude test for preparation of the list
of eligible candidates under the rules, in no manner, can
be said to be the transgression of the right of the
Minority Institutions to select the Principal and teachers
of their choice.
233. In view of the above discussion from all angles, we have
no hesitation to hold that the provisions of Section 40A
of the Gujarat Secondary and Higher Secondary
Education (Amendment) Act, 2021 (for application of
Section 17(26), 34(2) and 35 of the Act ‘1972, to the
registered Minority Institutions) and the Principals and
Teacher (procedure of selection) Rules, 2021 for the
Registered Private Secondary and Higher Secondary
Minority Schools, are not violative of the rights of the
Minority Education Institutions guaranteed under Article
30(1) of the Constitution of India. The challenge to the
validity of the said statutory provisions being violative of
Articles 14 and 30(1) of the Constitution of India is,
therefore, turned down.
234. All the writ petitions in this bunch, are, accordingly,
dismissed.
Page 259 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
NEUTRAL CITATION
C/SCA/8081/2021 CAV JUDGMENT DATED: 23/01/2025
undefined
Connected Civil Applications would not survive and
stand disposed of, accordingly. No order as to costs.
(SUNITA AGARWAL, CJ )
(PRANAV TRIVEDI,J)
Bijoy Pillai / Sahil Ranger/C. M. Joshi
Page 260 of 260
Uploaded by C.M. JOSHI(HC01073) on Fri Jan 31 2025 Downloaded on : Sat Feb 01 03:26:39 IST 2025
[ad_1]
Source link