# 17cv. Sidhaj'til_tai SabhfJi v. State of Bomba)'

- **Citation:** [1963] 3 S.C.R. 837
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Case number:** Writ Petition No. 76 of 1957
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/17cv-sidhaj-til-tai-sabhfji-v-state-of-bomba-2680
- **Pages:** 21

## Headnote

a s·.c.R.
SUPREME COURT REPORTS
837
REV. SIDHAJBHAI SABHA! AND OTHERS
v,
STATE OF BOMBAY AND ANOTHER
(B. P. SrNHA., C. J., S. J,. IMAM, K. SuBBA RAo,
K. N. W .A.NCHoo,
J. C. SHAH and
N. RuAGOPA.LA AYY.A.NGAR, JJ.)
Fundamental Rights, Infringement of-Right of minorities
to establish educational institution1-I nterference with the right
oj bare management of an educational institution, if an infringement of the right to property-Nature of Fundamental right unrier
.A.rt. 30-0onetitution of lnriia, Arts. 30(1), 26(a), (b), (c), (a),
19(1)(!).
The petitioners who profess the Christian faith and
belong to the United Church of Northern India are members
of a society which maintain educational institutions primarily
for the benefit of the Christian Community. The society con·
ducts forty-two primary schools and a Training College for
teachers. The teachers trained in the college are absorbed in
the primary schools conducted by the society and those not
so absorbed are employed by other Christian Mission Schools
conducted by the United Church of Northern India. The
cost of maintaining the training college and the primary
schools is met out of donations received from the Irish Presbyterian Mission, fee from scholars and grant-in-aid from
the State Government. On May 28, 1955, the Government of
Bombay issued an order that from the academic year 1955-56,
80% of the seats in the training college> for teachers in non·
Governm~nt training colleges shall be reserved for teachers
nominated by the Government, and the Educational Inspector
on June 13, 1955, ordered the Principal of the Training College
of the Society, not to admit without specific permission of the
Education department private students in excess of20% of the
total strength in each class. The Pripcipal of the college ex pr·
essed his inability to comply with the order. On December
27, 1955,the Educational Inspector informed the management
that their action in refusing admission to Government nomi·
nated teachers was irregular and against the Government Policy
and he severely warned the society that for disregardino- the
orders no gfant would be paid to the college for the cu
0rrent
year. On March 29, 1956, the Educational Inspector called
upon the Principal not to admit private candidates to the !st
year class without obtaining specific permission, failin~ whic4
/~62
.. ,iugu•t ifO.
1962
17cv. Sidhaj'til_tai
SabhfJi
v.
State of Bomba)'
838
SUPREME COURT REPORTS [1963]
severe disciplinary action, such as withdrawal of recognition
of the institution, would be taken. The society was again
informed by letter dated May 9,1956, that havmg failed to
abide by the conditions set out earlier, the college will not be
paid the education grant. The petitioners moved the Supreme
Court for a writ in the nature of mandamus or other writ
directing the State of Bombay :fnd the Director of Education
not to compel the Society and the petitioners to reserve 80o/0
or any seats in the training college for the
''Government
. nominated teachers", nor to compel the society and the petitioners to comply with the p·ovisions of rr.5\2),11, 12 and 14
and net to withdraw recognition of the college or withhold
grant~in-aid under r. 14 01herwise. The petitioners claimed
that their fundamental rights guaranteed by Arts. 30(1),26.a).
(b),(c) and (d) and 19(l)(f) and (g) were violated by letters
dated May 28,1955, December 27,1955, and March 29,1956,
threatening to withhold the grant in aid and to withdraw
recognition of the college.
,
Bela, that by the impugned rules and orders no right to
acquire, hold or dispose of property was violated. Interference
with the right of bare management of an educational institution
does not amount to infringement of the right to property under
Art. 19 (1) (f).
No attempt was made
by
the
order
of the State to deprive the petitioners of their rights to pro·
perty and the fundamental freedom guaratn<e<l by Art.19(l)(f)
was, therefore, not violated; nor was the right of the petitio-
~

## Text

_Characters 0–39,904 of 41,438. This is a partial read: ask again with offset=39904 for what follows._

a s·.c.R.
SUPREME COURT REPORTS
837
REV. SIDHAJBHAI SABHA! AND OTHERS
v,
STATE OF BOMBAY AND ANOTHER
(B. P. SrNHA., C. J., S. J,. IMAM, K. SuBBA RAo,
K. N. W .A.NCHoo,
J. C. SHAH and
N. RuAGOPA.LA AYY.A.NGAR, JJ.)
Fundamental Rights, Infringement of-Right of minorities
to establish educational institution1-I nterference with the right
oj bare management of an educational institution, if an infringement of the right to property-Nature of Fundamental right unrier
.A.rt. 30-0onetitution of lnriia, Arts. 30(1), 26(a), (b), (c), (a),
19(1)(!).
The petitioners who profess the Christian faith and
belong to the United Church of Northern India are members
of a society which maintain educational institutions primarily
for the benefit of the Christian Community. The society con·
ducts forty-two primary schools and a Training College for
teachers. The teachers trained in the college are absorbed in
the primary schools conducted by the society and those not
so absorbed are employed by other Christian Mission Schools
conducted by the United Church of Northern India. The
cost of maintaining the training college and the primary
schools is met out of donations received from the Irish Presbyterian Mission, fee from scholars and grant-in-aid from
the State Government. On May 28, 1955, the Government of
Bombay issued an order that from the academic year 1955-56,
80% of the seats in the training college> for teachers in non·
Governm~nt training colleges shall be reserved for teachers
nominated by the Government, and the Educational Inspector
on June 13, 1955, ordered the Principal of the Training College
of the Society, not to admit without specific permission of the
Education department private students in excess of20% of the
total strength in each class. The Pripcipal of the college ex pr·
essed his inability to comply with the order. On December
27, 1955,the Educational Inspector informed the management
that their action in refusing admission to Government nomi·
nated teachers was irregular and against the Government Policy
and he severely warned the society that for disregardino- the
orders no gfant would be paid to the college for the cu
0rrent
year. On March 29, 1956, the Educational Inspector called
upon the Principal not to admit private candidates to the !st
year class without obtaining specific permission, failin~ whic4
/~62
.. ,iugu•t ifO.
1962
17cv. Sidhaj'til_tai
SabhfJi
v.
State of Bomba)'
838
SUPREME COURT REPORTS [1963]
severe disciplinary action, such as withdrawal of recognition
of the institution, would be taken. The society was again
informed by letter dated May 9,1956, that havmg failed to
abide by the conditions set out earlier, the college will not be
paid the education grant. The petitioners moved the Supreme
Court for a writ in the nature of mandamus or other writ
directing the State of Bombay :fnd the Director of Education
not to compel the Society and the petitioners to reserve 80o/0
or any seats in the training college for the
''Government
. nominated teachers", nor to compel the society and the petitioners to comply with the p·ovisions of rr.5\2),11, 12 and 14
and net to withdraw recognition of the college or withhold
grant~in-aid under r. 14 01herwise. The petitioners claimed
that their fundamental rights guaranteed by Arts. 30(1),26.a).
(b),(c) and (d) and 19(l)(f) and (g) were violated by letters
dated May 28,1955, December 27,1955, and March 29,1956,
threatening to withhold the grant in aid and to withdraw
recognition of the college.
,
Bela, that by the impugned rules and orders no right to
acquire, hold or dispose of property was violated. Interference
with the right of bare management of an educational institution
does not amount to infringement of the right to property under
Art. 19 (1) (f).
No attempt was made
by
the
order
of the State to deprive the petitioners of their rights to pro·
perty and the fundamental freedom guaratn<e<l by Art.19(l)(f)
was, therefore, not violated; nor was the right of the petitio-
~ -,
ners to practice any profession, or to carry on any occupation,
trade or business guarenteed by Art. 19(l)(g) of the Constitution infringed by the impugned rules and directions,
The Commissioner, Hindu Religious Endowments, Madras
v. Sri Lakshmindra Thirlha Swnmiar of Sri Shiru Mutt, [1954]
S.C.R. 1005 and Sri Dwarka Nath Tewari v. State of Bihar,
A.LR; (1959) S. C. 249, distinguished.
Held. further, that r.5(2) of the Rules for Primar~ .Training Colleges and rr. 11 and 14 of the Rules for recognition of
Private Training institutious, in so far as they relate to reser~
vation of seats therein under orders of Government and
directi~ns given pursuant thereto regarding reservation of 80%
of the seats and the threat to withold grant-in.aid and
recognition of the college, infringed the fundamental freedom
under Art. 30( 1 ).
.
The right established by Art. 30(1) is a fundamental
right declared in terms absolute : unlike the fundamental freedoms guaranteed by i\rt. 19 it is not subject to re~son!!bl~
'•
"
'
,
1.
--•(
3 $.C.R.
SUPREME COURT REPORTS
839
restrictions. It is intended to be a real right for the protection
of the minorities in the matter of setting up educational institutions of their own choice.
The right is intended to be
effective and is not to be whittled down by so called regulative measures conceived in the interest not of the minority
educational institution, but of the public or the nation as
a whole. Regulatillns which may lawfully be imposed either
by legislative or executive action mu•t satisfy a dual testthe 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.
111 re, The Kerala Education Bill, 1957, (1959) S.C.R.
995, distinguished.
ORIGINAL JURISDICTION :Writ Petition No. 76
of 1957.
Petition under Art. 32 of the Constitution of
India for enforcement of Fundamental Rights.
G. S. Pathak, J. B. Dadachanji, Rameshwar
Nath, S. N. Andley and P, L. Vohra, for the petitio·
ners.
H. N. 8anyal, Additional Solicitor-General of
India, R. Ganapathy Iyer and R.H. Dhebar, for the
respond en ts.
1962. August 30. The Judgment of the Court
was delivered by
SHAH, J.-The
petitioners
profess
the
Christian faith and belong to the United Church of
Northern India. They are membArs of the Gujarat
and Kathiawar Presbyterian Joint Board-hereinafter
called
'the
society' -which conducts in
the
areas which now form the State of Gujarat,forty·two
primary schools and a Training College for teachers,
known as the "Mary Brown Memorial Training
College", at Borsa.d, District Kaira. The teachers
trained in the colleges are absorbed in the primary
ijOqool!J qouducted b' the society- ancl those :qot .sq
Rev, Sldhojbhai
Sabhai
v.
Sue of Bombqy
Shah J.
--.-..
Rto. Yitlhajbha·i
Sabhai
v.
State of Bombay
Shah .1.
840
SUPREME COURT l{.EPORTS [1963]
absorbed are employed by other Christian 'fission
Schools conducted by the United Church of Northern
India. The cost of maintaining the Training college
and the primary schools is met out of donations
received from the Irish Presbyterian Mission, fee from
scholars and grant-in-aid under the education Code
of the State Government. The primary sehools and
the college are conducted for the henefit of the
religious
denomination of the United Church of
Northem India and Iudian Christiana generally,
though admission is not denied to students belonging
to
other communities. The training course in the
college is of the duration of two years and originally
25 students were admitted in the First Year and 25
in the Second Year. Till the y<'ar Hl52 surplus
accommodation after admitting students who were
to qualify as teachars required for the society's
primary schools, waJ available for other students.
The College was recognised by the Government of
Bombay for training students for the examination
held by the Education Department for granting
certificates for trained teachers.
In each District of the State of Bombay there
is maintained a District School Board and in a
Municipal area a Municipal School Board. These
School
Boards
attend
to
matters
relating
to
primary
education and
conduct
schools
in the areas in which they function. To prov id 3
trained teachers for the schools run and conducted
by the School Boards, the State maintains Training
Colleges for teachers .
In November 1952 the Government of Bombay
ordered all private Training Colleges in the State to
reserve 60 % of "seats for training Boards' School
teachers nominated by the Government." l he society
'
...
protested against the order. There, were negotiations
.,,.__.
between the Education Department of the Govern·
meμt aμd the sooiety and it was aweed that tqe
3 s.c.R
SUPREME COURT REPORTS
84i
society should admit every ye~r 20 students, 10 in
each clastS. Accordingly, in June 1953, 10 students
were nominated by the Government and another
batch of ten students was nominated in June, 1954.
On May 28, 1955, the Government of Bombay issued
another order that with effect from the academic
year 1955-56, 80 % of the seats should be reserved
by the Management in non-Government Training
Colleges for the District and Municipal School Board
teachers to be nominated by the Government.
It
was recited in the order that there were 40,000
untrained primary teachers employed by District
School Boards and Authorised Municipalities, and
some more untrained teachers were likely to be
selected and appointed as primary teachers during
the next academic year and in order that untrained
teachers should have the necessary training as soon
as possible, Government had decided to expand the
existing training facilities with a view to increasing
"the output of trained teachers" by opening new
Training Colleges and by directing that 80 % of the
seats in non-Government Training Colleges should
be reserved for Schcol Board teachers with effect
from the next academic year ( 1955-56 ). On June 13,
1955, the Educational Inspector, Kaira District
.addressed a letter to the Principal of the College
informing him that 80 % of the total number of
·seats in the training college be reserved for school
Board teachers "deputed by the Government," and
ordered the Principal not to admit private students
in his institution in excess of 20%of the total strength
in each class without specific permission of the
Education Department. The Principal of the College,
by letter dated June 15, 1955, expressed his inability
to comply with the order. There was correspondence
between the society and the Education Department
in the co11rse of which the Department insisted that
80 % of the seats ehould be reserved by the College
1962
Reu. Sidhjab hai
Sabhai
...
Slal1 of Boinha.v
Shah_.r.
1962
Rev. Sidhajbhai
Sabhai
v.
State of Bomba'
Shah.'.
842
SUPREME OOURT REPORTS [I963J
for school Board teachers and that no fresh admissions should be made. By letter dated December 27,
1955, the Educational Inspector, Kaira District
informed the management of the College that the
action taken by them in refosinQ: admission to the
School Board teachers was hh1hl_y irregular and
"against the Government policy", that the management was severely warned for disregarding the
orders issued in that connection, an<l that in view of
the management's defiant attitude it had been decided that no grant would be paid to the College for
the current year unless the management agreed to
reserve 80 % seats for School Board teachers from
1956-57 and that the manage'llent should maintain
only one division of the IInd Year class during the
year 1956-57 and that it should not admit fresh
candidates to the Ist Year without specific permission from the Director of Education, Poona., failing
which severe disciplinary action suoh, as withdrawal
of recognition of the institution would be taken. The
society submitted on Febraury 10, 1956 a memorial
to the Minister for Education Government of
Bombay protesting against the threat to take
disciplinary action and to withdraw recognition. By
letter dated March 12,1956, the society was informed
that in view of the refusal of the society to reserve
seats for the school Board teachers, "grant for the
current year
was withheld.
By letter
dated
March 22, 1956, the society wrote to the Minister for
Education requesting that they be permitted to fill
twelve places in each year and the remaining places
(which amounted
to
60 %
of
the
total
strength) be reserved for School Board teachers.
By
letter
dated
March
29,
1956,
the
Educational Inspector called upon the Principal
of the College not to admit private candidates
to the 1st year class without obtaining previous
permission from the Dirtctor of Education, and
informed him that the provisional grant of Rs. 8,000/
!
3 s.c. n,,
stri>RE1ME COURT REPoRTS
sanctioned to the
College was on "the distinct
understanding that 80 %of the seats are reserved
for School Board taachers from 1956·57 and necessary residential accommodation is made available
for.them." On April 18, 1956, the society was
informed that 80 % of the seats for the 1st year
should be reserved for the School Board teachers
annually and the same be continued next year in
the !Ind year, that due hostel accommodation be
provided for those teachers,
that the College
students should be allowed to observe important
festivals of all religions not "involving rituals as
part of
cultural programmes under community
living", and the College should provide some place
where all teachers, staff and students can meet and
recite common prayers.
By letter dated May 9,
1956, the Director of Educati0n informed the
society in continuation of letter dated April 18,
1956 that the Society having failed to assure the
Government that they will abide by the conditions
Ret out in the earlier letter no deputations of
teachers were made to the 1st Year of the college
during the year 1956-57 and that the College will
not be paid the grant. On J·une 9, 1956, the Director of Educatiou again wrote to the society calling
upon it to admit all the School Board teachers as
may be deputed upto 80 % of the seats in the 1st
year class for the year 1956 57, and to provide
·adequate hostel accommodation for them and if
the society failed to communicate its willingness to
comply therewith within seven days from the
receipt of the letter, the Government would be
constrained to withdraw recognition accorded to
the 1st year class of the training College under
Rule 11 for recognition of non-primary training
College framed by the Government under G.R. 11
dated November 9, 1949. This letter was written
in pursuance of the authorit.y assumed under two
sets of Rules
framed by the Government of
lll~B
Rev. Sidhajbhai
Sabhai
V•
Slate of Bombay
ShahJ.
Rev. Sid~ajbhai
6'q~hai
v.
State aj B cmi.ay
Shah J.
844
SUPREME COURT REPORTS [1963]
Bombay-(i) Rules for Primary Training Colleges,
and (:l) Rules for t:ie recognition of the Private
'J'raining Institutions. By
5(2) of the first set of
Rules, it was prescribed that in non-Govermental
Institutions, percentage of seats reserved for Board
deputed teachers shall be fixed by the Government
and the remaining seats shall be filled by students
deputed by private schools or by private students.
Rules 11, 12 and 14 of the Rules for the recognition
of Private Primary Training Institutions were as
follows:-
"11.
The Institution will have to be
kept open for all students irrespective of caste
or creed. It will be open to Government to
reserve seats for Board deputed teachers to
such extent as
is deemed necessary. The
institution will have to give such representation on its staff and students to Backward
classes as may be fixed by Government."
..
"12. Women teachers will he admitted
·in Women's Training Institutions. The Head
~
of such Institutions should be a woman and
not less than 50 percent of the Assistant
Teachers, should be
women.
In special
cases, men's
institutions may be allowed to
admit women teachers provided:
( i) . Separate classes
for women are
formed.
(ii)
(iii)
One trained graduate woman teacher
is appointed per class for women
teachers opened in the college.
Separate
residential
arrengement
under supervision of a woman teacher are made for women students
in the Hostel.
·1
3 s.cji.
SUPREME COURT REPORTS
845
(iv) Satisfactory arrangements are made
for teaching Home Science as an
auxiliary craft to women students.
(v) Separate sanitary arrangements are
made for women
teachers in the
college and hostel premises."
"14. It will be open to the Department
to withdraw recognition or refuse payment
of grant to any private training institution for
non-fulfilment of any of the conditions mentioned above, for inefficient management and
poor quality of tflaching, or for failure to comply
with any of the Departmental regulation now
in force or that may be issued from time to
time by the Government, or by the Director
of Education on behalf of Government.''
The petitioners moved this Court for a writ
in the nature of mandamus or other writ directing
the State of Bombay and the Director of Education
not to compel the society and the petitioners to
a
reserve 80 % or any seats in the training College
for "the Government nominated teachers" nor to
compel the society and the petitioners to comply
with the provisions of Rules 5(2), 11, 12 and 14
and not to withdraw recognition of the College or
withhold grant.in-aid under Rule 14 or otherwise.
The petitioners are members of a religious
denomination and constitute a religious minority.
Tl;i.e society of which they are membera maintains
edmiational institutions primarily for the benefit
of the Christian community, but admission is not
denied to students professing other faiths. They
maintain a college for training women teachers
required for their primary schools.
The petitioners
claim that their fundamental rights guaranteed by
Arts. 30(I), 2G(a), (b), (c) and (d) and 19(1)(f)and
(g) are violated Ly letters dated May 28, 1955,
1962
Iler. Sidhaj•htli
~ah.'tai
v.
Slota of Ho, b••
Shah J.
1962
li.~v. Sidhajbhr•i
Sabha~
v.
Sta~ of Bornboy
Shah J.
846
SUPREME COURT REPOB,TS [1963]
December 27, 1955 and March 29, 1956 threatening to withhold the grant-in-aid and to withdraw
recognition of the College.
It is common ground that the Gove1·nment
of Bombay makes under the Education Code a
grant of Rs. 8,000/- annually to the college.
Thie
Code is not framed under any Statute but consists
of a series of administrative directions issued by
the Government of Bombay pertaining to matters
eduoational and sets out regulations for making
grants. The Government also holds examinations
for granting certificates to successful candidates as
trained primary teachers, and scholars receiving
training in recognised institutions alone are entitled
to appear at the examination. Manifestly, in the
absence or recognition by the Government training
in the College will have little practical utility. The
College
is a non-profit making institution and
depends primarily upon donations and Government
grant for_ meeting its expenses. Wi.thout such
. grant, it would be extremely difficult if not impossible for the institution to function.
Article 19(1) (f) on which reliance has been
placed on behalf of the society does not come to its
aid. By that clause all citizens are declared to
have the fundamental freedom to acquire, hold and
dispose of property. But by the rules and orders
impugned no right to acquire, hold or dispose of
property is violated.
Interference with the right
of bare management of an educational institution
does not amount to infringement of the right to property under Art. (I) (f). The decision of this Court
in The Commissioner, Hindu Religious Endowments,
Madras v. Sri Lakshmindra Thirtha Swamiar of Sri
Shiru Mutt (') on which reliance is placed by the
Society does not lay down any proposition to the
(1) [1954] S. C.R. I005.
i•
3 S.C.R.
SUPREME COURT REPORTS
847
•
contrary. The Court was dealing in that oase with
the alleged infringement of the rights of a. Mahant
in a religious institution by the enactment of the
Madras Hindu Religious and Charitable Endowments Act, XIX of 1951. It was observed that a
Mathadhipati of a Math is not a mere manager and
that it would not bf' right to describe mahantship as
a mere office : a superior of a Math has not only
duties to discharge "in connection with the endowment but he has a personal interest of a beneficial
character which is sanctioned by custom and is
much larger than that of a Shebait in the deb1ttter
property. xx xx xx Thus in thti conception of
Mahantship, as in Shebaitship, both the elements of
office and property, of duties and personal interest
are blended together and neither can be detached
from the other. The personal or beneficial interest of
the Mahant in the endowments attached to an institution is manifested in his larger powers to create
derivative tenures in respect to endowed properties;
and these and other rights of a similar character
invest the office of the Mahant with the character of
proprietary right which, though anomalous to some
extent, is still a genuine legal right." The word
"property" in Art. 19(1) (f) must doubtless be
extended to all those recognised types of interest
which have the insignia or characteristics of proprietary rights, and a Mathadhipati has those rights,
but it cannot be said that the petitioners in this case
have any such proprietary rights as are vested in
the Mahant of a Math.
Nor does the principle of
Sri Dwarka Nath Tewari v. State of Bihar (1) apply
to this case. In Dwarka Natb's case, by an executive order the Government of Bihar purported to
divest the trustees of a school of their right to land
and building belonging to the school. The Court
held that the applicants in whom the land and the
building of the school were vested as the Managing
Committee of the school could not be divested of
(I) A. I. R, (1959) S.C. 2•9.
1968
Rei. SiihajUai
Sab.lai
v.
Stott of S.111bay
Shah J,
1911
R1•· SidhaJbhai
Sabhtri
...
Sl~Jle of Bombay
ShohJ.
848
SUPREME COURT REPORTS [l963j
their rights by the mere fiat of an official of the
Government.
No attempt is made by the order of
the State to deprive the petitioners of their right to
property, and fundamental freedom guaranteed by
Art. l9(1) (f) of the Constitution is therefore not
violated. Nor is the right of the petitioners to
practise any profession, or to carry on any occupation, trade or business guarant.eed under Art. 19(l)(g)
of the Constitution infringed by the impugned rules
and directions.
'
Article 26 occurs in a group dealing with freedom of religion and is intended to protect the right
"to manage religious affairs". By cl. (a) of Art. 26,
every religious denomination or any section thereof,
has, subject to public order, morality and health,
the right to establish and maintain institutions for
religious and charitable purposes and in a larger
sense an educational institution may be regarded aa
charitable. But in the view we take of the protection of Art. 30( 1 ), we do not think it necessary to
express any opinion on the plea that the. right of the
petitioners guaranteed by Art. 26 to manage the
college is infringed by the impugned rules and
orders issued by th11 Government of Bombay.
Serious inroads are made by the Rules and
orders issued by the Government of Bombay upon
the right vested in the society to administer the
training College. By Rule 5 ( 2) of the Rules for
Primary Training Colleges., the Government is autho
rised to reserve in "non.Governmental institutions" a
percentage of seats "for the Board deputed teachers"
and the .V[11nagement of the institution has the right
to admit student~ only for unreserved seats. By
Rule 11 of the Rules for recognition of the Private
Primary Institutions, authority is again assumed by
the Government to reserve seats "for Board deputed teachers." By Rule 14, the Education Department
is authorised to withdraw recognition and to refu~e
)
.
\
r'f•
3 S.C.R.
SUPREME COURT REPORTS
849
to pay grant to any private institution for non.
fulfilment of the conditions Fet out in the Rules, for
inefficient management and poor quality of teaching
or failure to comply with the regulations in force or
that may be issued from time to time by the Government or by the Director of Education on behalf
of Government. It is manifest that the right of the
Private Training Colleges to admit students of their
own choice is severely restricted and enforcement
of the restrictions sought to be secured by holding
out a. threat to withdraw recognition and to refuse
to pay grant.
Article 30(1) provides that all minorities have
the right to establish and administer educational
institutions of their choice, and Art. 30( 2) enjoins
the State, in granting aid to educational institutions
not to discriminate against any educational institution on the ground that it is under the management
of a minority, whether based on religion or language.
Clause (2) is only a phase of the non-discrimination
clause of the Constitution and does not derogate
from
the
provisions
made
in cl. (1 ).
The
clause
is
moulded
in
terms
negative :
the State is thereby enjoined not to discriminate
in granting aid to educational institutions on
the ground that the management of the institution is in the hands of a minority, religious or
linguistic, but the form is not susceptible of the
inference that the State is competent otherwise to
discriminate so as to impose restrictions upon
the substance of the right to establish and administer educational institutions by minorities, religious
or linguistic. Unlike Art. l\J, the fundamental
freedom under cl. (1) of Art, 30, is absolute in
terms ; it is not made subject to any reasonable
restrictions of the nature the fundamental freedoms
enunciated in Art. 19 may be subjected to. All
minorities, linguistic or religious have by Art. 30 ( l)
a.q Q.bsolute right
to establish and administer
1!i62
Rev. Sidhajbhai
Sab!ia'
v.
Stale of Bombay
Shah J.
Rev. Sid~ajDJ.ai
s~b,iai
..
Stiile oj Bom~11,1
SJroh J.
850
SUPREME COURT REPORTS (1963]
educational institutions of their choice; and any law
or executive direction which seeks to infringe the
substance of that right under Art. 30( I) would to
that extent be void. This, however, is not to say
that it i6 not open to the State to impose regulations
upon the exercise of this right. The fundamental
freedom is to establish and to administer eduoational institutions : it is a right to establish and
administer what are in truth educational institutions, institutions which cater to the educational
needs of the citizens, or sections thereof. Regulation made in the true interests of efficiency of
instruction, discipline, health, sanitation, morality,
public order and the like may undoubtedly be
imposed.
Such regulations are not restrictions on
the substance of the right which is guarante'3d : they
secure the proper functioning of the institution, in
matters educational.
The petitionerH do not contend that the
absolute terms in which the Art. 30 (I) is enuncia·
ted deprive the State, especially when it pays grant
and affords recognition to it as an educational
institution competent to
train students for the
examinations held by the State, to
impose
reasonable regulations,
But it is contended that
these regulations can only be in the interest of the
institution-regulations to make it an effective
educational institution so as to secure excellence of
the training imparted therein-the regul11tions cannot
be made in the interest of outsiders. Counsel for
the State of Gujarat (upon which State the duty to
defend this petition has since the constitution of
the new State of Gujarat, devolve<l.) contended that
the right exlends to all such regulations as may
appear to the Government in the national or public
interest, provided that the regulations do not
tend to destry the character of the institution as
one maintained by the minority.
Counsel submits
NH·t tqE) $tate is not boi!nd to maim a grant, nor
'~ • • •
3 S.C.R.
SUPREME COURT REPORTS
851
it is bound to recognise the minority institution for
examinations held by a State : if the State makes
a grant or gives recognition to an institution for
the examination held by it, the State is entitled to
impose conditions relating to admission of students
and to withhold grant and recognition, in the event
of the institution failing to carry out the conditions,
such regulation being in the national or public
interest. Counsel concedes that if the effect of the
restrictions is the total destruction of the character
of the institution as an institution administered by
a minority, the restrictions may be regarded as
infringing Art. 30 ( 1)
but not otherwise. In
support of his argument, reliance is placed upon
the affidavit of Dr. D.V. Chickermane who affirmed
that "the number of Primary and Baeic Schools in
the
State run by :r1istrict School or Municipal
Boards and others was great," primary achoo ls
alone being over 8,900 and the untrained personnel
in all the primary schods was about 40,000 which
had to be progressively reduced in the interests of
the public. It was therefore necessary for the
Government and the private Colleges receiving
grant-in-a.id from Government to prepare qualified
teachers for these schools in large numbers and if
the private Training Colleges did not train teachers
for the School Boards, it would not be possible for
such colleges to absorb all the teachers trained by
them
in their own
schools and the training
given to extra teachers wuuld be wasted. Dr.
Chickermane further
affirmed that in 1955 the
Government had decided to step up the programme
of training teachers in the Boards Schools for
training 2,000 teachers every year, the intention
being to remove the untrained element in primary
schools in the State as early as possible, and that
with this object the Government had decided to
depute 1,600 teachers to private Training Colleges
a11d tpis co11lcl be possible onl! if 80% seats i~
1J62
Riv. Sidhajbhai
Sa•hai
., .
State of Bomhay
Shah J.
1962
R,w. Sidhojbhai
Su6h"·i
v.
S1•r-e of Bom·bay
Sltah J.
852
SUPREME COURT REPORTS [1963]
the private Training Colleges would be reserved
for such nominees.
The truth of these statements made in Dr.
Chickermane's affidwit is not denied by the petitioners. They however submit that the requirement
of the State Government of a large number of
trained teachers in thB near future is not \1- ground
on which tbe infringement of the fundamental right
of the society under Art. 30 (1) to administer its
educational institution could be justified~
Restrictions imposed by the Rules and the
directions issued upon the right of the society to
administer the Training College maintained by it,
are manifestly not conceived in the interests of the
College. The Additional Solioitor General appearing on behalf of the State, contends that this Court
has held in the [( erala Education Bill case(l) that the
State may validly impose restrictive measures in
national or the public interest on the right of a
min '>rity to administer its educational institution
notwithst.anding the protection of Art. 30 ( 1), provided such measures arc not annihilative of the
charaotor of the minority educational institutions.
The Kerala Education Bill case arose out of a
reference made by the President under Art. 143 of
the Constitution, and this Court was called upon to
report amongst others on the question whether
sub·ol. { 5) of cl. 3, sub-cl. (3) of cl. 8 and els. 9 to
13 of th3 Bill or any provisions thereof, offended
ol. ( l) of Art. 30 of the Constitution.
By the
impugned clauses of the Bill establishment of a
new school or the opening of a higher class in any
private school cJuld be made only in accordance
with the provisions of the Act and the rules made
thereunder, "'nd any school or higher class established or opened otherwise than in accordance with
pl \19lJj s.c.a. 995 1
>
.,,,-
-
. -
38.C.R.
SUPREME COURT REPORTS
853
such provisions was not to be entitled to recognition by the Government [cl. 3(5)] ; all fees collected
from the students in an aided school were, notwithstanding anything contained in any agreement,
scheme or
arrangement, to
be made
over
to
the
Government
[cl. 8 (3) ;
and
the
salary of the teachers in aided schools
was to
be paid by the Government (ol.9); the Government
was authorised to prescribe qualifications of teachers
in private schools, and the Public Service Commission was authorised to frame a list, of teachers for
appointment in aided schools (els. 10 and 11), the
conditions of service relating to scales of pay, .i;>ension, provident fund, insurance and age of retire·
ment applicable to teachers of Government schools
were to apply to teachers of aided schools, and the
Managers of aided schools were without the prE>vious
sanction of the Government prohibited from dismissing, removing or reducing in rank or suspending any teachers, a.nd subject to the provisions so
enacted the conditions of service of teachers of
aided schools were to be such as may be prescribed
(cl. l~) : the Government was authorised to take
over any aided school if it appeared that the
management thereof had neglected to perform the
duties imposed by or under the Act or the rules
made thereunder or if the Government was satisfied,
that was necessary to do so for standardising general
education in the Rtate or for improving the level of
literacy in any area or for more effectively managing the aided educational institutions in any area
or for bringing education of any category under
their direct control. The schools were thenceforth
to vest in the Government absolutely (ols.14and15).
By the provisions of the Bill the power to administer an aduoational institution was practically
taken away from the management.
Managers of
certain minority schools urged before the Court in
that case that the protection of Art. 30(1) to minoritr educational institutioqs wa.s iq. terrqs absolute,
··t·,;
Rev. Sidhajbhai
Sabhai
v.
Slate of Bombay
:·ha~ J.
1962
.II)•. Sidhajbhai
-Sabhai
v.
S•.,te tJj Bom_bay
·--
854
SUPREME COURT REPORTS [1963]
and the State could not competentl.v impose any
restrictions upon the exercise of the right of administration or management.
On behalf of the State
of Kera la it was submitted that by Art. 30 ( 1) the
minorities were merely invested with the fundamental right to establish and administer educational
institutions of their choice, and that right could
be exercised by them w long as they cared to do
so on their own resources : fundamental right
guaranteed by Art. 30( I) did not extend to getting
assist,ance from the coffers of tho state, and if the
minority institutions de8ir< d to obtain aid from the
State they must submit to the terms on which the
State offered aid to all at.her institutions established
by other persons.
The Court rejected the extreme contentions
advanced by the Managers of the educational institutions and by the State, and observed that the
right to administer did not include a right to maladminister, and the minority cou Id not ask for aid.
or recognition for an educational institution run by
them in unhealthy surroundings, without any competent teachers possessing a'ly semblance of qualification, and which did not maintain even a fair standard of teaching or which taught matters subversive
of the welfare of the scholars. The. constitutional right
to administer an educational institution of their
choice, it was observed, does not necessarily militate against the claim of the State to insist that in
order to grant aid the St~te may prescribe reasonable regulations to ensure the excellence of institutions to be aided, but the State could not grant aid
in such a manner as to take away fundamental
right of the minority community under .Art. 3U(l).
It was pointed out that under the Directive Principles of State Policy, under Articles 41 to 46 it was
the dutv of State to aid educational institutfons and
to promote tile educational ipterest of minorities
-
3 S.C.R.
SUPREME COURT REPORTS
855
and weaker section of the people. Again, in the
circumstances prevailing in the country, no educational institution could, in actual practice, be maintained without aid from the State and if it cou1d
not get it unless it surrendered its rights, it would,
because
of pressure of financial necessities, be
compelled to give up its right under Art. 30(1). The
State could not disregard or override the fundamental right by employing indirect methods of achieving exactly the same result. Even the legislature
could not do indirectly what in certainly could not
do directly,and the effect of the application of some
of those provisions of the Bill was substantially to
override the provisions of Art. 30(1). The Court
then entered upon an examination of els. 9, 10, 11,
12 and
13 and observed that they constituted
serious inroads on the right of administration and
appeared "perilously near violating that right", but
considering that those provisions were applicable to
all educational institutions and that the impugned parts of els. 9, 11 and 12 were designe~
to give protection and security to the ill-paid
teachers who
we.re
engaged in rendering service
to the nation and to
pt'otect
the backward
classes, the Court was prepared to treat els. 9. 11 (2)
and 12(4) as permissible regulations which the State
might impose on the minorities as a condition for
granting aid to their educational institutions. But,
it was observed, the clauses which authorised the
taking over of management, and vested the schools
absolutely in the Government, purported, in effect,
to annihilate the educational institutions of their
choice could not be sustained under Art. 30(1). It
was therefore held that notwithstanding the absolute
terms in which the fundamental freedom under Art.
30( l) was guaranteed, it was open to the state by
legislation or by executive direction to impose reasonable regul11.tion. The Court did not, however,
lay down any test of reasonableness of tue regula-
~ion. 'f4e Court qi4 not decide t}iat public or natioqa\
--
B1u. SidMIJlltai
Sabhai
'·
S 1a1, of BQmbct,;
S*1hJ,
J!Jffl --
Rao:·'Sidhojbha"i
Sabha(
"-•
8~at• <J l!om&•;i
fl56
SUPREME COURT REPORTS [1963)
interest was the sole measure or test of reasonable;
ness .= it also did not decide that a regulation wouid
be deemed unreasonable only if it was totally destruotive of the right of the minority to administer
educational institution.
No general principle on
which reasonableness or oth~rwise of a regulation
inay be tested was sought to be laid down by the
Court, The Kerala Education Bill case ('), therefore,
iS not an authority for the proposition submitted by
the Additional Solicitor General that all regulative
measures which are not destructive or annihilative
of the character of the institution established by the
minority, provided the regulations are in the national
or public interest, are valid.
The right established by Art. 30(1) is a funds.·
mental right declared in terms absolute.
Unlike
the fundamental freedoms guaranteed by Art.19, it iii
not subject to reasonable restrictions. It is intend·
ed to be a real right for the protection of the mi no·
rities in the matter of setting up of edu(Jational institutions of their own choice. 'fhe right is intended
to be effective and is not to be whittled down by
so-called regulative measures conceived in the inte·
rest not of the minority educational institution, but
of the public or the nation as a whole. If every
order which while maintaining the formal character
of a minority institution destroys the power of
administration is held justifiable because it is in
the public or national interest, though not in its
interest as an educational
institution, the right
guaranteed by Art. 30( I) will be but a ''teasing
ilinsion", a promise of unreality.