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Judgment
Bakthavatsalam, J.—When the miscellaneous petitions came up for hearing, by consent of both parties, the main Writ petitions are taken up
for final disposal.
The prayer in W.P. No. 12333 of 1993 is as follows:
....to issue a writ of mandamus forbearing the Respondents herein from interfering with the rights of the Petitioner herein to continue on
reemployment till 31.5.1994 as Headmaster of the C.S.I. Elementary School at Nilkuppam, Arkonam, taluk.
Theprayerin W.P. No. 15798 off 993 is to issue an order or direction or writ more specifically writ of mandamus directing the Respondents to
allow the Petitioner to continue in service as P.G. Assistant in the first Respondent school on reemployment terms till 31.5.1994.
The prayer in W.P. No. 1579 of 1993 is to issue an order or direction or writ more specifically writ of mandamus directing the Respondents
and also the Petitioner to continue in service as Tamil Pandit is the first Respondent school on reemployment terms till 31.5.1994.
Theprayerin W.P. No. 16935 of 1993 is to issue a writ of certiorari calling for the records relating to the proceedings issued in Memo No.
52041 Fl/60-1 Education dated 8.10.1969 issued by the Director of Education and G.O. Ms. No. 1643 Education (US) Department dated
27.10.1988 from the office of the Respondents 1 and 2 and quash the same.
The common issue involved in all these writ petitions is regarding the Government order which requires the teachers who have alleging the
superannuation in the middle of school year to continue till the end of the academic year.
It seems that the Government in Memo 52041-F.l/69-l Education dated 8.10.1969 has ordered that teachers who attain the age of
superannuation in the middle of the school year should be continued or reemployment till the date of closure of the school for summer vacation
subject to the following conditions:
that their work and conduct are satisfactory.
that they are physically found fit for further service,
that no disciplinary proceedings are pending against them.
Admittedly, the Petitioners in W.P. Nos. 12333, 15798 and 15799 of 1993 are working in the institutions which are minority institutions.
The Petitioner in W.P. No. 16935 of 1993 challenges the proceedings of the Director of Education in Memo. No. 52041-Fl/69-l Education
dated 8.10.1969 and G.O. Ms. No. 1643 Education (US) Department dated 27.10.1988. In Memo No. 52041 dated 8.10.1969 the Director of
School Education was informed that teachers Head Masters of aided Elementary and Secondary Schools who are continued in service on
remployment terms till the closure of the school for summer vacation are eligible for full vacation salary. In G.O.249 Education dated 9.2.1959, the
Government accepted the suggestion of the Government of India in the Ministry of Education that school teachers who reach the age of
superannuation during the middle of the school year should be allowed to continue till the end or summer vacation in order to ensure continuity of
staff. In the year 1988, the Government passed G.O. Ms. No. 1643 Education (U2) Department dated 27.10.1988 in which earlier G.O. Ms.
No. 249 Education dated 9.2.1959. had been referred to. This Government order is with regard to the despatch of pension papers of the teachers
well in advance. However, the Petitioner in W.P. No. 16935 of 1993 on 15.5.1993 passed a resolution thus:
...93:21 (C) Policy on school staff retirement: Resolved that as a general policy relating to retirement of all the school staff in the Diocese of
Madras every staff retire by the close of the month during which birthday occurs. No extension on superannuation will be recommended for any
staff. This policy will come into immediate effect.
Mr. Peppin Fernando, the Learned Counsel appearing for the Petitioner in W.P. No. 16335 of 1993 vehemently contends that condition to
reemploy the teacher curtails cannot give right to the Petitioners under 1st of the constitution re-employment amounts to reappointment and that
when the management has not given a clearance in accordance with the Government order, whether it is not open to the educational authorities to
allow the teachers to continue their work after their retirement. Learned Counsel contends that it is violation of Article 30 of the Constitution of
India and that it is an interference with the management of the school and as such the Government order cannot apply to the Petitioner management
though it applies to institutions which receive aid from the state.
Mr. P.D. Dinakaran, the Learned Counsel appearing for the Petitioner in W.P. No. 12333 of 1993 contends that the condition to impose is
not one sons one, that it is only extending the continuous service for few months upto the end of academic year, that in all these cases, the
corRespondents of the concerned schools have recommended for such extension and as such the management cannot reject the extension.
Learned Counsel also relies upon the decision in Francis John Vs. Director of Education and Others, for this proposition.
Miss K. Suguna, the Learned Counsel appearing for the Petitioner in W.P. No. 15799 of 1993 contends that the Respondent school being an
aided school is sound by the orders of the Government that as per the Government order any teacher who retires during the middle of the
academic year is eligible to continue in service till the end of the academic year and that it is not open to the Respondents to say that the said
Government order will not apply to the Petitioner herein.
I have considered the arguments of the Learned Counsel for the Petitioners and of Mrs. V.J. Latha, learned Government Advocate. As I have
already stated the short point that arises for consideration is whether the Government order extending the service of the teachers who retired during
the middle of the academic year till the end of the academic year can be enforced on the minority institutions. If it offends, Article 30 of the
Constitution it cannot be done. Mr. P. Peppin Fernando, the Learned Counsel for the Petitioner in W.P. No. 16935 of 1993 took an objection
that the writ petition is not maintainable. Learned Counsel for the Petitioner relies upon the decision in Francis John Vs. Director of Education and
Others, , for this proposition and contends that if the school is receiving aid then the writ petition is maintainable. The decision relied upon by the
Learned Counsel for the Petitioner in W.P. No. 12333 of 1993 is a case arose out of disciplinary proceedings in an aided school. In A. Thomas v.
Deputy Inspector of Schools AIR 1976 Mad 214 a Division Bench of this Court, after referring to the decision of the Supreme Court in The
Ahmedabad St. Xavier''s College Society and Another Vs. State of Gujarat and Another, has held as follows:
... Denominational institutions have freedom of management which includes also appointment of teachers of their choice. Though the Government
has a right to prescribe the minimum qualification for a teacher, it cannot insist that the institution cannot take a more highly qualified teacher in the
interest of higher standards of education in the institution. That will be uncalled for, unreasonable and arbitrary interference with the management of
the school. The aid given by the government does not clothe it with such type of right to interfere with the freedom management of the institution.
In that case, the Division Bench has held that the decision of the Supreme Court has to recognise the freedom of management on the part of the
denominational institutions and the management includes also appointment of teachers of their choice. It is true that this was a case where it has
been held that the Government has right to prescribe minimum qualification for a teacher, it cannot insist that the institution cannot take a more
highly qualified teacher in the interests of higher standards of education in the institution. But the principle on which the said decision rendered was
whether the minority institution has got a right to appoint teachers of their choice. As rightly pointed out by Mr. P. Peppin Fernando, the earned
counsel for the Petitioner in W.P. No. 16935 of 1993, that if teachers are allowed to continue in service till the end of the academic year, though
for the continuity of the education in the welfare of students, it will amount to re-employment. In my view, it is virtually compelling a minority
institution for re-employing a person for a particular period. It is true that there can be regulatory measures for a uniformity, efficiency and
educational excellence in educational courses and that the right conferred on the religious and linguistic minorities to administer educational
institutions or of their choice is not an absolute right. It has been held so by this Court in the light of Article 30(1) of the Constitution of India. I am
of the view such a compulsion made on the minority institutions to continue the teachers after the period of superannuation till the end of academic
year, amounts to interference so as to affect the rights of the minority institutions. It has been held by the Supreme Court in St. Stephen''s College
etc., etc. Vs. The University of Delhi Etc., Etc., that so long as the basic right of minorities to manage educational institution is not taken away, the
State is competent to make regulatory legislation. It has also been held that minority mstitutions are entitled to get the financial assistance much the
same way as the institutions of the majority communities. It has also been held that the receipt of State aid does not impair the rights in Article
30(1) of the Constitution of India. It has also been held that the State has no power to compel minority institutions to give up their rights under
Article 30(l) of the Constitution of India, just because they receive aid, and that the State can lay down reasonable conditions for obtaining grant-
in-aid and for its proper utilisation. It has also been held that the right to administer does not include the right to malad-minister. In that case, the
Supreme Court has held as follows: (at p.1652)
... Though Article 30(l) is couched in absolute terms in marked contrast with other fundamental rights in Part III of the Constitution, it has to be
read subject to the power of the State to regulate education, educational standards and allied matters. In The Ahmedabad St. Xavier''s College
Society and Another Vs. State of Gujarat and Another, which was the decision of a nine-judge Bench, Ray, C.J. with whom Palekar, J.,
concurred, observed (at pp. 197, 200) that upon affiliation to a University, the minority and non-minority institutions must agree in the pattern and
standards of education. Regulations which will serve the interest 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 institution. It was further observed:
That the ultimate goal of minority institutions 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 every thing in educational and academic matters for achieving excellence and uniformity
in standard of education.
In the same case Khanna, J. put the principles with a different emphasis (at 234-35);
The right of the minorities to administer educational institution does not however, prevent the making of reasonable regulations in respect of those
institutions. The regulations have necessarily to be made in the interest of the institution as a minority educational institution. They have to be so
designed as to make it an effective vehicle for imparting education. The right to administer educational mstitutions can plainly not include the right to
maladminister. Regulations can be made to prevent the housing of an educational institution in unhealing surrounding 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 light of the minority to administer the institutions.
Regulations made in the true interest 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 or the institution,
in matters educational.
Mathew, J. had this to state (at 267) ""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 of the University if it wants affiliation or recognition; but the character of the permissible
regulations must depend upon their purposes. 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 borderline 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 sub-serve 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 global
secular education as, ex hypothesis, the only permissible regulations are those where 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
interest of the minority community and those person who resort to it.
In Lily Kurian Vs. Sr. Lewina and Others, it was pointed out (at 137):
Protection of the minorities is an article of faith in the Constitution of India. The right to the administration of institutions of minority''s choice
enshrined in Article 30(1) means management of the affairs of the institution. This right is, however, subject to the regulatory power of the State.
Article 30(1) is not a charter for maladministration regulation, so that the right to administer may be better exercised for the benefit of the institution
is permissible, but the comment one goes beyond that and imposes, what is in truth, nor a mere regulation out an impairment of the right to
administer, the Article comes into play and the interference cannot be justified by pleading the interests of the counsel publish the interests justifying
interference can only be the interest of the minority concerned.
...(60)The need for detailed study on this aspect is indeed not necessary. The right to minorities whether religious or linguistic, to administer
educational institutions and the power of the State to regulate academic matters and management is now fairly well settled. The right to administer
does not include the right to malad-minister. The State being the controlling authority has right and duty to regulate all academic matter. Regulations
which will serve the interests of students and teachers, and to preserve the uniformity in standards of education among the affiliated institution could
be made. The minority institutions cannot claim immunity against such general pattern and standard or against general laws such laws relating to law
and order, health, hygience, labour relations, social welfare legislations, contracts, torts etc. which are applicable to all communities. So long as the
basic right of minorities to manage educational institution is not taken away, the State is competent to make regulatory legislation. Regulations,
however shall not have the effect of depriving the right of minorities to educate their children in their own institution. That is a privilege which is
implied in the right conferred by Article 30(1)....
It has also been held by a Division Bench of this Court in Paulraj v. The District Educational Officer, Tanjore and Ors. 99 T.L.N.J. 7, that
requirement that senior most teacher should be appointed as Headmaster is violative of right of minority school to administer institution of its choice
and that such regulatory measure cannot be justified by pleading the interest of the general public.
In view of the settled position in law with regard to the rights of the minority institutions, I nave no hesitation to hold that the minority institutions
cannot be asked to continue the teachers who have retired on superannuation during the middle of the academic year to be continued till the end of
the academic year. The view I take, the writ petition in W.P. No. 16935 of 1993 will stand allowed. Writ Petition Numbers 15798, 15799 and
12333 of 1993 will stand dismissed. However, there will be no order as to costs.