# ALL SAINTS HIGH SCHOOL, HYDERABAD ETC. ETC v. GOVERNMENT OF ANDHRA PRADESH & ORS. ETC

- **Citation:** [1980] 2 S.C.R. 924
- **Court:** Supreme Court of India
- **Decided:** 1980-02-04
- **Case number:** Civil Appeal Nos. 1280, 1279, 1327-1330 of 1978
- **Bench:** Y. V. Chandrachud, S. MURTAZA fAZAL ALI, P. s. KAlLASAM
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/all-saints-high-school-hyderabad-etc-etc-v-government-of-andhra-pradesh-ors-etc-7942
- **Pages:** 81

## Headnote

Andhra Pradesh Recognised Private Educational Institutions Control
Act
1975-Sections 3 to
1-Validity of-Provisions if
violate
constitutional
guarantee in Art. 30(1).
Constitution of India 1950-Article 30(1)-Andhra Pradesh
Recognised
Private Educational Institutions Control Act, 1915-lf offends against
Art.
30(1).
The purported object of the Andhra Pradesh Recognised
Private Educational Institutions Control Act 1975 was to regulate
the service
conditions
of teachers in private educational institutions and for ensuring the security of
service of the teachers. Section 3 (I) of the Act provides : "Subject to any rule
that may be made in this behalf, no teacher employed in any private educa·
tional institution shall be dismissed, removed or reduced in rank nor shall his
appointment be otherwise terminated except with the prior approval of the competent authority". The proviso to this sub-section states that if any educational
management etc. contravenes the provisions of this sub-section, the teacher
affected shall be deemed to be in service. Where a proposal to dismiss etc. any
teacher is communicated to the competent authority, according to sub-section
(2) of this section, that authority shall, if satisfied that there are adequate and
reasonable grounds for such proposal, approve such dismissal, removal or reduction in rank or termination of appointment. Clause (a) of sub-section (3) of
this section states that no teacher employed in any private educational institution shall be placed under suspension, except when an enquiry into the gross
'misconduct of such teacher is conten1plated.
Clause (b) provides that no such
suspension shall remain in force for more than a period of two months from
the date of suspension and if such inquiry is not completed within that period,
such teacher shall, without prejudice to the inquiry, be deemed to have been
restored as teacher.
The proviso states that the competent authority may, for
reasons to be recorded in writing, extend the said period of two months for a
further period not exceeding two months, if in his opinion, the inquiry could
not be completed within the said period of two months for reasons directly
attnbutable to each teacher.
Section 4 gives a right of appeal to teachers
employed in private educational institutions against orders
of
punishment
imposed on them.
Section 5 deals with special provisions regarding appeal in certain past dis·
ciplinary cases.
Section 6 which deals with retrenchment of teachers provides that where
retrenchment of any teacher is rendered necessary consequent on any order of
the Government relating to education or course of instructions or to any
other matter, such retrenchment may be effeoted with the prior approval of
the competent authority.
Section 7 · provides for payment of pay and allowances to teachers in the
¥-·-
•
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1
•
f
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ALL SAINTS !IlGH SCHOOL V. GOVT. OF A.P.
92 5
The appellants who were minority educational institutions established
by
A
members of the Christian commnnity filed writ petitions before the High Court
impugning various provisions of the Act as being violative of the &'llarantee con·
1ained in Article 30 (I) of the Constitution by permitting or compelling interference with the internal administration of their private educational institutiions.
In particular they challenged the provisions of sections 3 to 7 of the Act on
the gronnd that they deprive them of their right to administer the affairs Of
minority institutions by vesting the ultimate administrative control in an out·
B
side authority. The contentions having been rejected by the High Court they
filed appeals by special leave.
HELD s Permajorily-(Chandrachud, CJ., and Fazal Ali, J.-Kailasam, J.,
dissenting.) :
Sub-sections (I) and (2) of section 3 are invalid and cannot be applied to
minority institutions.
C
Per majorily-(Chandrachnd, C.J., and Kailasam J.-Fazal Ali, J. dissent.
mg).
Clauses (a) and (b) of section 3(3) do not offend against Art. 30(1) and
are valid.
By th

## Text

_Characters 0–39,700 of 217,998. This is a partial read: ask again with offset=39700 for what follows._

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924
ALL SAINTS HIGH SCHOOL, HYDERABAD ETC. ETC.
v.
GOVERNMENT OF ANDHRA PRADESH & ORS. ETC.
February 4, 1980
[Y. V. CHANDRACHUD, C.J., S. MURTAZA fAZAL ALI AND
P. s. KAlLASAM, JJ.]
Andhra Pradesh Recognised Private Educational Institutions Control
Act
1975-Sections 3 to
1-Validity of-Provisions if
violate
constitutional
guarantee in Art. 30(1).
Constitution of India 1950-Article 30(1)-Andhra Pradesh
Recognised
Private Educational Institutions Control Act, 1915-lf offends against
Art.
30(1).
The purported object of the Andhra Pradesh Recognised
Private Educational Institutions Control Act 1975 was to regulate
the service
conditions
of teachers in private educational institutions and for ensuring the security of
service of the teachers. Section 3 (I) of the Act provides : "Subject to any rule
that may be made in this behalf, no teacher employed in any private educa·
tional institution shall be dismissed, removed or reduced in rank nor shall his
appointment be otherwise terminated except with the prior approval of the competent authority". The proviso to this sub-section states that if any educational
management etc. contravenes the provisions of this sub-section, the teacher
affected shall be deemed to be in service. Where a proposal to dismiss etc. any
teacher is communicated to the competent authority, according to sub-section
(2) of this section, that authority shall, if satisfied that there are adequate and
reasonable grounds for such proposal, approve such dismissal, removal or reduction in rank or termination of appointment. Clause (a) of sub-section (3) of
this section states that no teacher employed in any private educational institution shall be placed under suspension, except when an enquiry into the gross
'misconduct of such teacher is conten1plated.
Clause (b) provides that no such
suspension shall remain in force for more than a period of two months from
the date of suspension and if such inquiry is not completed within that period,
such teacher shall, without prejudice to the inquiry, be deemed to have been
restored as teacher.
The proviso states that the competent authority may, for
reasons to be recorded in writing, extend the said period of two months for a
further period not exceeding two months, if in his opinion, the inquiry could
not be completed within the said period of two months for reasons directly
attnbutable to each teacher.
Section 4 gives a right of appeal to teachers
employed in private educational institutions against orders
of
punishment
imposed on them.
Section 5 deals with special provisions regarding appeal in certain past dis·
ciplinary cases.
Section 6 which deals with retrenchment of teachers provides that where
retrenchment of any teacher is rendered necessary consequent on any order of
the Government relating to education or course of instructions or to any
other matter, such retrenchment may be effeoted with the prior approval of
the competent authority.
Section 7 · provides for payment of pay and allowances to teachers in the
¥-·-
•
•
1
•
f
•
ALL SAINTS !IlGH SCHOOL V. GOVT. OF A.P.
92 5
The appellants who were minority educational institutions established
by
A
members of the Christian commnnity filed writ petitions before the High Court
impugning various provisions of the Act as being violative of the &'llarantee con·
1ained in Article 30 (I) of the Constitution by permitting or compelling interference with the internal administration of their private educational institutiions.
In particular they challenged the provisions of sections 3 to 7 of the Act on
the gronnd that they deprive them of their right to administer the affairs Of
minority institutions by vesting the ultimate administrative control in an out·
B
side authority. The contentions having been rejected by the High Court they
filed appeals by special leave.
HELD s Permajorily-(Chandrachud, CJ., and Fazal Ali, J.-Kailasam, J.,
dissenting.) :
Sub-sections (I) and (2) of section 3 are invalid and cannot be applied to
minority institutions.
C
Per majorily-(Chandrachnd, C.J., and Kailasam J.-Fazal Ali, J. dissent.
mg).
Clauses (a) and (b) of section 3(3) do not offend against Art. 30(1) and
are valid.
By the Court: Sections 4 &. 5 are unconstitutional as being Yiolative of Art.
l'
SO(IJ.
D
•
Per majority IChandrachnd, C.J., and Kailasam J-Fao:al Ali, J, dissenting) •
Section 6 is valid.
By the Court :
Section 7 is valid.
)
Per Chandrachud, C.J.
_> ,
Section 3 ( 1) and 3 (2) are unconstitutional
in so far as
they are made
applicable to minority institutions since in practice these provisions are bound
to interfere substantially With their right to
administer
institutions of their
choice.
[937E]
I. (a) Section 3 (I) gives an unqualified mandate that no teache" shall be
dismissed etc. except with the prior approval of the competent authority. Under
the proviso, contravention of the !ection results in a total invalidation of the
proposed action. lf the section is contravened the teacher shall be deemed to be
in service. Secondly, the sub-section applies not only to cases in
which the
teacher is punished by an order of dismissal etc. but to cases in
which the
appointment is otherwise terminated.
An order of termination simpliciter is
also required to be submitted for the prior approval of the competent autbo~
rity.
All this shows that the true object of the sub-section is not that which
one could liberally assume by reading down the section.
[935H; 936ABJ
(b) In the absence of any rules furnishing guidelines on the subject, it is
difficult to predicate that in practice the operation of the
section would be
limited to a certain class of cases only.
The absence of rules on the subject
makes the unguided discretion of the competent authority the sole arbiter of
the question as to which cases would fall within the section and which would
fall outside it.
[936 B-F]
E
F
G
(c) Section 3(2), nnder the guise on coaferring the power of approval,
B
confers upon the competent authority an appellate power of great magnitude.
That authority is made a judge both 'll facts and on law by the conferment upon
A
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926
SUPREME COURT REPORTS
[1980] 2 S.C.R,
it of a power to test the validity of the proposal on the vastly subjective touchstone of adequacy and reasonableness. The sub-section leaves no scope for
reeding down the provision of section 3 ( 1). The two sub-sections together confer upon the competent authority, in. the absence of proper rules, a wide and
untrammelled discretion to interfere with the proposed orde.r whenever in its
opinion the order is based on grounds \Vhich do not appear to it either adequate or reasonable.
[936G-H; 937Al
(d) Though the section provides
that the
competent
authority "shall"
approve. the proposed order if it is satisfied th11t it is based on adequate and
reasonable grounds, its plain and necessary implication is that it shall not approve the proposal unless it is satisfied. The conferment of such a power on an
outside authority, the exercise of which is ma.de to depend purely on subjective
consideration 0rising out of twin formula of adequacy and reasonableness, cannot but constitute an infringement of the right guaranteed by article 30(1).
[937C]
State of Ker(lfu v. Very. Rev. Mothe1· Provincicil [197 lj 1 SCR 734,
D.A.V. College v. State of Punjab [1971] Suppl. S.C.R. 688 and Alimedabad
St. Xaviers College Society' v. State of Gujarat [1975] I S.C.R. 173; referred
to.
2. (a) Section 3(3)(a) and 3(3)(b) of the Act do not offond against the
provisions of article 30(1) and are valid.
[939B-Cl
(b) Clause (a) contains but an elementary guarantee of freedom from
arbitrariness to the teachers.
The provision is regulatory in character since
it neither denies to the management the right to proceed against an erring
teacher nor does it place an unreasonable restraint on its pov.'er to do so.
It aBsumes the right of the managenient to suspend a teacher but regulates that
E
right by directing that a teacher shall not be suspended unless an inquiry
into his conduct is contemplated and unless the inquiry is in respect of a
charge of gross misconduct. These restraints which bear a reasonable nexus
irwith attainment of educational excellence cannot be considered to be/viola-
}
tive of the right given by article 30(1). The limitation of the period of suspension initially to two months, which can in appropriate cases be extended
by another two months, as provided in clause (b) and its proviso, partakes of
F
the same character as the provisions contained in clause (a). A provision
founded so patently on plain reason is difficult to construe as an invasion of
the right to administer an institution unless that right carried with it the right
to maladminister. [938G-H]
G
R
3. Section 4 is unconstitutional as
being
violative
of
article
30(1)
of the constitution.
The section confers upon the government the power
to
provide by mies that an appeal might lie to such authority or officer as it designates, regardless of the standing or status of that authority or officer. Secondly an appeal is provided for on all
questions of fact and law, thereby
throwing open the
order
passed by
the
management
to the unguided
scrutiny and unlimited review of the appellate authority, which would mean
that, in the exercise of the appellate power, the prescribed authority or officer
can substitute his own view for that of the
management
even
in
cases
in which two views are reasonably possible.
Lastly, while a right of appenl
i! given to the aggrieved teacher ~ainst the order passed by the management,
no corresponding right is conferred on the management against the order
passed by the competent authority under section 3(2) of the Act.
In the
absence of a provision for appeal against the order of the competent autho-
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ALL SAINTS HIGH SCHOOL V. GOVT. OF A.P.
927
rit.f{' refusing to approve the action proposed
by the
management,
tbc
Am-.agemcnt is pleased in a gravely dis-advantageous
position
vis-a-vis
the
teadier who is given the right of appeal by section 4.
[939D·H]
Section 5 must fall with section 4.
[940B]
4. Section 6 is valid.
The section aims at affording a minimal guarantee
of ie.Curity of tenure to teachers by eschewing the passing of 1nala-fide orders
in the garb of retrenchment.
It is implicit in the provisions of this section
B
tkat the limited jurisdiction which it confers upon the con1petent authority
is to examine whether, in cases \vhere 1he retrenchment is stated to have
become necessary by reason of an order passed by the Goven1ment, it has
in fact so hecon1e necessary.
The conferment of a guided and limited pov.er
on the competent authority for the purpose of finding out whether, in fact the
retrenchment has bC:come necessary by reason of a Govemmentci1 order can
4
net constitute an interference with the right of administration conferred by
c·
article 30(1 ).
[940D-F]
Section 7 is regulatory in its character and is valid.
[940H]
Per Fazal Ali, /.
On an exhaustive analysis of the authorities of this Court on the various
aspects of the fundamental right· enshrined in article 30(1) of the ConstitutiOB the following propositions of law emerge :-
[)·
(i) Article 30(1) enshrines th:e fundamental right
of the
miaority
institutions
to
manage
and
administer
their educational institutions.
[967H]
(ii) Although, the right conferred by this
article is absolute, unfettered and unconditional, it does not mean that it gives a licence
for maladministration so as to defeat the avowed object of the
E
article, namely to advance excellence and perfection in the field.
(iii)
of education.
[968B]
\Vhile the State or any other statutory authority has no right to
interfere with the internal administration of the 1ninority institution, it could take regulatory measures to pron1ote the efl:iciency
and excellence of educational standards and issue guidelines for
ensuring the security of the services of the tt:achers and other
employees of the institution.
[968C]
(iv) Under the garb of adopting regulatory measures. the State or any
other authority cannot destroy the administrative a·ulonomy of the
institution or interfere with the management
..._)f
the institution
so as to render the right of adn1inistration of the management
F
of the institution illnsory.
[968E]
G
(v) By its very nature article 30 implies that where an affiliation is
asked for, the university cannot refuse the same without sufficient
reason or try to in1pose such conditions
as
\Vou!d
cornplctely
destroy the autonomott>; administration of the educational institution.
[968G]
(vi) Induction of an outside authority in the governing body of the
minority institution to conduct the affairs of the institution \\'ould. Il
be completely destructive of the fundamental right under <lrticle
30(1), where a high authority like the Vice·Chancellor
or
his
5-138SCI/80
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SUPREME COURT REPORTS
(1980] 2 S.C.R.
nominee
is
<1ppointed
in
the
administration,
such authorities
should not be thn1st so as to have a
controlling voice in tbe
n1atter overshado\Ying the pOV.'ers
of
the
managing
commitlee.
[96BH]
{vii) Jt is open to the Government or the University to fran1e rules
and regulations ,governing the conditions of 'iervice of teachers
in order to secure their tenure of service and to appoint n high
authority to see that the rules are not violated or the mctnbcrs of
the staff are not victimised. Jn such .cases the purpose
is
not
to interfere with the autonomy of the
institution but n1erc:1y to
improve the excellence and .efficiency of education.
Even
f\O,
an authority should not be given a blanket uncanalised .and
arbitrary powers.
[969E-F)
(viii) \\'here a minority institution affiliated to a university is enjoUied
to adopt courses of study of the syllabi or the nature of books
prescn"bed and the ho1ding
of examination to test the ability
of the students of the institution, it does not follow- that the freedom contained in article 30(1) of the
Constitution
is Yiolated.
[970AJ
(ix) \Vhere a high authority is appointed to exercise vigilance on tbp
work of the teachers and to ensure security of tenure for thCm
the authority must be given proper guidelines.
Before cocting to
any decision which may be binding on the n1anaging committee
the head of the institution or the senior member. of the managing
conunittee must be associated and they should be allowed to have
a say in the matter. [970C]
'
Kera/a Education Bj[[, 1957, [1957] SCR 995; Sidliaibhai Sablwi and
Ors. v. State of Bombay and Anr. [1963] 3 SCR &37; Rev. Father W. Proost
& Ors. v. State of Bihar [1969.l 2 SCR 73; State of Kera/a etc. v. Yem
Rev. Mother Provincial etc. [1971] 1 SCR 734; D.A.V. College etc. v. State
of Puniab & Ors. [1971] Suppl. SCR 688 and The Al1medabad St. Xoviers
College Society & Anr. etc. v. State of Guiarat [1975] I SCR 173; referred
to.
F
1. (a) Section 3 in its entirety is ultra-vires as being violative of article
G
30(1) and is wholly inapplicable to the appellants who are minority imtitutions.
[97 5B]
(b) The proviso enjoins that any contravention of the provisions would
not affect the teachers who would be deemed to be in service.
It i~ manifest
that in the absence of any rules the proviso would have no application and
even if it applied it would amount to a serious inroad on the fundamental
right of the minority institutions to administer or manage their own affairs.
[971H]
(c) Sub-section 2 of section 3 is unconstitutional as being vio1ative of article
30(1). It suffers from the vice of excessive delegation of powers and con~
fers undefined, absolute and arbitrary powers to grant or to refuse sanction
to any action taken by the managing committee and almost reduces the
H
institution to a helpless position.
[973B-C]
( d) If the State wanted to regulate the conditions of service of the
teachers, it should have taken care to make proper rules
giving
sufficient
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ALL SAINTS HIGH SCHOOL v. GOVT. OF A.P.
929
wowers to the n1anagement in the manner in which it \Vas to act.
fnduction
,of an outside authority into the institution and making bis decision final ·was
.a. blatant interference \vith the
autonomy of the institution.
The
words
~·adequate and reasonable" are too vague and do not lay down any objective
"Standard to judge the discretion to be eixercised
by the competent
anthoTity whose order would be binding on the institution. f972F-G]
(e) While section 4 gives a right of appeal to the aggrieved· teacher no such
right has been given to the management to/ file an appeal against the order of t)le
.competent authority if it refuses to grant sanction to the order of the ~.fana~
ging Committee of the institution. The
competent authority
is
only
the
District Educational Officer who is not a very high authority such
lL"l
a Director of Public instruction or Vice-Chancellor of a
University.
No
time limit has been fixed by the statute \Vithin which the competent authority
is to give its approval. The cumulative effect of clause (a) and
(b)
of
section 3 (3) and the proviso is to interfere with the internal administration
of the rrtinority institutions and curb the power of suspension. It deprives
the institution of the right of taking any disciplinary action against a teacher.
The adjective "gross'' before the term "misconduct in clause (a) destroys the
power of suspension which the minority institution possesses.
The
provision
contained in clause (b) of section 3 (3) providing that no suspension
shall
remain in force for a period of more than two months from the date of suspension and if no inquiry is completed within this period the teacher \\'oulct
have to be reinstated. gives an unqualified right to a teacher in the matter of
suspension which even a government servant does not enjoy.
[973A, 974D-EJ
2. Section 4 is ultra-vires and is violative of article 30 of the Constitution.
It does not contain any guidelines as to the manner in which the pow·er could
~e exercised, nor does it contain any provision which may entitle the minority
A '
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institution to be heard by the appellate authority.
The conferment of an
E
abSOlute and unguided power on the appellate authority \VOuld amount to a
direct interference with the right enshrinecl in article 30(1) and makes the
minority institution a powerless body.
[976B; 975GJ
3. If section 4 is inapplicable to the minority institution Section 5 also
~
follows the same fate.
[976C]
;a.__•
4. Section '6 which contains an un-canalised and unguided
power suffers
from the same vice as in the case of section 3.
'The words "administer educational institutions of their choice'' in article 30 clearly indicate
that
the
institution has an absolute right to select teachers, ret.1.in them or retrench them
at its sweet will according to the norms prescribed by the institution or by
the religious order "'·hich has founded the institution.
[976HJ
5. Sectiori 7 is an innocuous provision and is valid.
[977C]
6. Sections. 8, 9, 12 and 13 are inapplicable to the minority institutions.
[977D, 978B]
7. Section 16 suffers from a serious defect namely that the provision regarding appeal to the appellate authority v,;as valid then it completely bars
the right of the management to file a suit to challenge the validity of the
order of the appellant. To this extent the section makes serious inroad 011
the fundamental right of the minority institutions and is inapplicable to ti.
'illinority institutions. [978G]
Section 17 is inapplicable.
[978F]
F
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930
SUPREME COURT REPORTS
[1980] 2 S.C.lt. •
' A
Per Kailasam, J.
B
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H
1. A reading of the various decisions rendered by this Court on the interpretation of article 30(1) of the Constitution makes it clear that while the
right to establish and administer a minority institutiOn cannot be interfered,
with, restrictions by way of regulations for the purpose of maintaining the
educational standards of the institution can be validly in1posed.
For maintaining the educational standards of the institution as a whole, it is necessary
to ensure that it is properly staffed.
Conditions imposing the minimum quallfications of the staff, their pay and othar benefits, their service conditions, theimposition of punishment will all be covered and regulations of such a nature
are valid.
In the case of institutions
that
receive
aid
it is
the duty
of the government who grants
aid to see that the iunds are properly
utilised.
Regulations can be made by the government for ensuring the
proper conditions of service of the teachers and for securing fair procedure in the matter of disciplinary action against them.
Prescribing uniformity in the conditions of service and conduct of teachers in all non-governmental colleges would promote harmony, avoid frustration and, therefore, is
permissible.
Rules prescribed by the university or other authority may require
that no member Of the teaching or non-teaching stafi of a recognised or approved institution shall be dismissed etc., except after a proper cnquity.
If
the regulations require thei approval of the
competent authority
for safeguarding the rights of the teachers and for securing the procedure there can
be no objection.
Such authority can also interfere with the decision of tl•ie
private institutions when ,the punishment awarded is malafide or by way of
victimisation or for similar causes.
[989B; 993D-G[
Kera/a Education Bill [1959] SCR, 995,
Rev. Sidhajbhai Sabhai & Ors,
[1963] 3 SCR 837, Rev. Father W. Proost and Ors. v. State of Bihar & Ors.
[1969] 2 SCR 73, State of Kerala v. Very. Rev. Mother Provincial [19711 I
SCR 734, D.A.V. College etc. v. State of Punjab & Ors. [1971] Suppl. &C.R.
688 and Ahniedabad St. Xaviers College Society and A.rir.
etc. v.
State af
Guiarat [1975] 1 S.C.R. 173, referred to.
2. It is not only reasonable but proper that a restricted meaning is given
to the power of prior approval conferred on the competent aU:thority under sec·
tion 3 of the Act. It is a well established principle of interpretation that the
statement of objects and reasons could\ be referred to for the limited purpose of
ascertaining the conditions prevalent at the time which actuated the sponsor
<>f the Bill to introduce the same and Iha extent of urgency and the e"11 songht
to be remedied. Clearly the legislation was intended to regulate the service
conditions of teachers employed in the private educational institutions and for
the security of service of the teachers.
Tile power contained in section 3(t)
and 3(2) is reStricted to regulating the service conditions of teachers and for
ensuring their security of se-rvice.
[1001C; 998A-B]
3. While interpreting a provision of law the Court will presume that the
legislation was intended to be intra vires and also reasonable. The section ought
to be interpreted consiste-nt with the presumption which imputes to the legislature an intention of limiting the direct operation of its enactmerit to the
extent that is permissible. A reading down of a provision of a statute puts into
operation the principle that so far as it is reasonably possible to do so, the legislation should be construed as being within its power. It has the principle effect
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ALL SAINTS HIGH SCHOOL V. GOVT. OF A.P .
931
<that where an Act is expressed in language of generality, which makes it capable, if read literally, of applying to matters beyond the relevant legislative
powers, the Court will construe it in a more limited sense so as to keep it
within power.
[998E-F]
The State of West Bengal v. Sub/wdh Gopal Bose and Ors. (1954]
SCR
:i87, Att. Genl. v. HRH Prince Earnest Augstas of Hanover, [1957] AC. 436,
A
Keshavananda Bharti v. State of Kerala [1973] Suppl. S.C.R. 1, 101, Towns v.
B
.Eigner 245 U.S. 413·62 Led. 372, 376 and Kedar Nath Singh v. State of Bihar
[1962] 2 Suppl. SCR 769; referred to.
In the instant case it must be presumed that the legislature was conscious
of the limitations of the po\ver which the competent authority can have in
granting or withholding apprQ!Val in the c:ase· of disciplinary proceedings con·
-ducted by private institutions. The object of the legislation in this case was
very different from ether cases in which 1h~ legislation was aimed &t depriving
the minority institutions' of all their powers. Its only aim is to provide security
of service.
There are sufficient guidelines ~ the objects and reasons as
well
as in the preamble.
[I 00 I B-C]
4. (a) The
contention
that
section
3(1)
and (2) lack
guidelines
and have conferred a blanket power cannot be accepted.
Section 3(1)
and (2) must be read together.
The wordsi
"ad~quate and reasonable"
should be given a
re~tricted meaning so as to validate· the provisions of the
section.
The approval of an order contemplated by sub-section (2) will have
to be read with sub·section (1). Sub-section (2) required the competent authority to approve such a proposal if it is satisfied that there are adequate and
J.easonable grounds for such proposal.
The words "adequate and reasonable"
furnish sufficient guidelines.
The competent authority can interfere if there
are no materials at all for sustaining the order of punishment or when on the
materials found chc charge is completely baseless and preserve. The word "ade~
quate" will have to bC' understood as being confined to such examination of
the proposal.
The y.;ord
"reasonable·~ would indicate that the power of the
competent authority is confined to the power of an authority
to interfere
with the enquiry and the conclusions arrived at by the domestic tribunal.
It
cannot be understood as conferring nbsolute power to interfere '\Vith the enquiry
by the tribunal as a Court of appeal on merits.
[1002E; 1001G-H]
(b) The plea that the "competent authority" may be any petty officer cannot be upheld because it is defined in section 2(1) to mean "any authority,
officer or person authorised by notification perfomling the functions of competent authority". The officers of the educational dtpartment
who are
incharge of the administration of educational institutions in the area cannot be
called petly officers.
[I002H]
(c) Clauses (a) and (b) of sub·section (3) cannot be said to interfere
with the right of administratio;n of the, private institutions. 1b.e two clauses
are regulatory in nature and are intended to safeguard the teachers from
being, suspended for unduly long periods ·without there being an enquiry into
1'gross mis·conduct."
[1003C]
(d) Sub-section (4) of section 3 which states that every teacher pla<:ed
·.under suspension shall be paid subsistence allowance at such rates as may be
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prescribed during the period of his suspension is purely regulatory in -n~ture
and. therefore, un-objectionable.
[1003D]
5. Section 4 is invalid.
The vice contained in this section is that the riiht
of appeal which is confined only to the teachers is not available to institutions.
1003Fl
6. Section 5 which! confers poWer on the competent authority to hear
B
appeals in certain, past disciplinary cases will have to fall' along with-
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section 4.
[1003G]
7. Section 6 is also regulatory in nature and its validity cannot be questioned.
[ 1003H]
8. Section 7 is :egulatory in nature and is intended for securing regular
payment to the teachers.
[1004A]
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1280, 1279,
1327-1330 of 1978 and 35 of 1979.
Appeals by special leave from the Jndgment and Order
dateci'
2-8-1978 of the Andhra Pradesh High Court in Writ Petition Nos.
718, 5505. 3618, 5506, 5518, of 1975 and 604/78 and 4814/1975.
L. N. Sinha, K. Srinivasa Murthy, Naunit Lal and M. Panduranga
for the Appellants in CA Nos. 1279, 1280, 1327-1330/78.
S. N. Kackar, Sol. Genl., Venkatarao and G. N. Rao for R. 1
in CA 1280, RR 1-3 in CAs. 1327 & 1329 and RR 1 & 2 in 1328 &
1330.
II. S. Gururaja Rao and S. Markendaya for RR 2-3 in CA 128()
and R. 4 in CA 1279.
K. M. K. Nair for R. 4 in CA 1329
S. Balakrishnan for R. 8 in CA 1329
G. Narasimhulu for R. 3 in CA 1330
B. Parthasarthi for the Appellant in CA 35/79.
B. Kanta Rao for the RR 4-5 in CA 35/79.
The following Judgments were delivered
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CHANDRACHUD, C.J.-Article 30(1) of the Constitution provides:
All minorities, whether based on religion or language,
shall have the right to establish and administer educational
institutions of their choice.
H
The question which arises in these appeals is whether certain provisions of the Andhra Pradesh Recognised Private Educational Institutions Control Act, 11 of 1975, offend against the fundamental right
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~ ALL SAINTS HIGH SCHOOL v. GOVT. OF A.P. (Cha11draclmd, C.J.) 933
conferred on mioorities by Art. 30 ( 1). The appellants
are unA
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questiOlll!bly minority educational institutions, having been establish-
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ed by members of .the Christian community .
. My learned Brothers, Murtaza Fazal Ali and Kailasam,
have
examined the authorities bearing on the question before us.
The
reilSons which impelled me to write a separa~ judgment are my inability to agree wholly with the various observations made by Justice
Fazal Ali and with some of the prO]JOsitions which he has formulated
as etlh,"t"ging from the decisions referred to by him, as also with the
conclusion to which Justice Kailasam has come.
I do not consider
it necessary to examine all the decisions of this Court in which Art.
30(1) has received a full and careful consideration.
These decisions are reported in Re Kera/a Education Bill(!) 1957,, Rev. Sidhajbhai Sabhai v. State of Bombay(2) Rev. Father W. Proost v.
The
State of Bihar(') State of Kera/av. Very Rev. Mother PrGvincial(4 )
D. A. V. College v. State of Pu'njab(') The Ahmedabad St. Xaviers
College Society v. State of Gujarat(") Gandhi Faizeam College Shahajalzanpur v. University of Agra(') and Lilly Kurian v. Sr. Lewina(')
Almost each succeeding judgment has considered and analysed the
previow judgment or judgments.
I regard the matter arising before
us as well-settled, especially
after the 9-Judge Bench
decision in
Alunedabad St. Xaviers College Society (supra) and the recent judgment of the CQ!lstitution Bench in Lilly Kuria11,(')
All that we have
to do iil this case is to apply the law laid down in these decisions.
0L- /
Tiie.se decisions show that while the right of the religious
and
""
linguistic minorities to establish and administer educational institutions of their choice cannot be interfered with, restrictions by way of
regulations for the purpose of ensuring educational standards ond
maintaining the excellence thereof can be validly prescribed.
For
maintaining educational standards of an institution, it is necessary to
ensure that it is competently staffed.
Conditions of service which
prescrif:le minimum qualifications for the staff, their pay scales. their
entillcment to other benefits of service and the laying down of safeguaids which must be observed before they are removed or dismisse([
from service or their services are terminated are all pcrmis>ib!e measures
({j [1959] S.C.R. 995.
(2) (1963] 3 S.C.R. 837.
(3) [1969] 2 S.C.R. 73.
(4) [1971] l S.C.R. 734.
(SJ [1971] Supp. S.C.R. 688.
(lij [1975] 1 S.C.R. 173.
(7) [1975] 3 S.C.R. 810.
(8) (1979] l S.C.R. 820.
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of a regulatory character.
As observed by Das C.J., in Re :
Kera/a Education Bill, (supra) "Right to administer cannot obviously
include the right to mal-administer", and in the words of Shah J., in
Rev. Sidhajbhai, (supra) "The right is subject to reasonable restrictions in the interest of efficiency of instruction, discipline,
health,
sanitation, morality, public order and the like". Hidayatnllah C.J.
said in Very Rev. Mother Provincial (supra)
that "Standards of
education are not a part of management as such", that the "minority
institutions cannot be permitted to fall below the standard of excellence expected of educational institutions" and that "the right of the
State to regulate education, educational standards and the allied
matters cannot be denied".
Justice Jaganmohan Reddy, in D. A. V.
College (supra) reiterated while upholding clause 18 of the Guru
Nanak University, Amritsar Act, 1961 that regulations
governing
recruitment and service conditions of teachers of minority institutions,
which are made in order to ensure their efficiency and excellence do
not offend ·against their right to administer educational institutions of
their choice
In the case of institutions that receive State aid, it is the duty and
obligation of the Government which grants aid to see that
pablic
funds are usefully and properly expended.
If the expenditure incurred for paying the emoluments of the staff is subsidised or financed
from out of State funds, it becomes the duty of the State to se~ that
no one who does not possess the minimum qualifications is zppointed
on the staff, the pay and other emoluments of the staff are guaranteed
and their service conditions secured.
Minority institutions
which
receive State aid cannot complain of conditions subject to which the
aid is granted, so long as such conditions do not amount to discrimination against them on the ground of language or religion nnd so
long as the aid is not made to depend upon the performance or observance of conditions which amount to deprivation of the right guaranteed by article 30( l). There is also no doubt that minority institutions cannot be discriminated against in the matter of granting State
aid.
No institution, minority or majority, has a fundamental right to
recognition by the State or affiliation to the University,
but ~ince
recognition and affiliation are indispensable for an effective and fruitful exercise Of the fundamental right of minorities to establish and
administer educational institutions of their choic_e, they are entitled
B
to recognition and affiliation if they agree to accept and comply with
regulatory measures which are relevant for granting recognition and
affiliation, which are directed to ensuring educational excellence of
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• ALL SAINTS HIGH SCHOOL I'. GOVT. OF A.P. (Chandrachud, C.J.) 935
the institution concerned and which, largely and substantially, leave
uJlimpaired the right of administration in regard to internal affairs of
the institution.
The impugned Act, by reason of section 1 (3), applies to all
private educational institutions, whether or not they are established
by minorities.
The appellants' contention is that several provisions
·of the Act violate the guarantee contained in Art. 30(1) by permitting or compelling interference with the internal administration
of
private
edncational
institutions
established
by minorities.
The
'appellants are particularly aggrieved by the provisions of sections 3
t() 7 of the Act, the validity whereof in challenged on the ground that
they deprive the appellants of their right to administer the affairs of
minority institutions by vesting th.e ultimate administrative control in
an outside authority.
These contentions having been rejected by the
High Court of Andhra Pradesh, the appellants hav~ filed these appeals
by special leave.
Section 3 ( 1) of the Act provides that, subject to any rule that
may be made in this behalf, no teacher employed in any private educational institution shall be dismissed, removed or reduced in rank
nor shall his appointment be otherwise terminated, except with the
prior approval of the competent authority.
The proviso to the section says that if any educational institution contravenes the aforesaid
provision, the teacher affected by the contravention shall be deemed
to be in service.
Section 3 (2) requires that where the proposal to
dismiss, remove or reduce in rank or otherwise terminate the appointment of any teacher employed in any private educational institution
is communicated to the competent authority, that
authority shall
approve the proposal, if it is
satisfied that there are adequate and
. reasonable grounds for the proposal.
For appreciating their trne meaning and effect, sections 3 (1) and
3 (2) have to be read together.
The requirement of prior approval
of the competent authority to an order of dismissal, removal,
etc.
may not by itself be violative of article 30 ( 1) because it may still
~e possible to say, on a reasonable construction of the provision laymg down that requirement, that its object is to ensure
compliance
with the principles of natural justice or the elimination of malll fide;j
or victimisation of teachers.
But I find it
difficult to read down
section 3 (I) so as to limit its operation tn these or similar considet'ations.
In the first place,
the section does not itself
limit its
operation in that manner; on the contrary, it gives an unqualified
mandate that no teacher shall be dismissed, removed, etc. exc~pt with
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the prior approval of the competent authority.
Under the proviso,.
contravention of the section results in a total invalidation of the pro-·
posed action. If the section is
contravened the teacher shall be;
deemed to be in service.
Secondly, section 3 ( 1) not only applies.
to cases in which a teacher is, what is generally termed as 'punished',
by an order of dismissal, removal or reduction in rank, but it also
applies to cases in which an appointment is otherwise terminated. An
order of termination simpliciter which involves no stigma or aspersion and which does not result in any evil consequences is also required to be
submitted for
the prior approval of the competent
authority. The argument that the principles of natural justice have·
not been complied with or the argument of ma/a fide~ andi victimisation has seldom any relevance if the services are terminated in accordance with the terms of a contract by which the tenure of the employment is limited to a specified period.
This shows
that the true
object of section 3 ( 1) is not that which one could liberally assume·
py reading down the section.
Section 3 (1) is subject to any rules that may be made in behalf
of the matter covered by it.
If the State Government were to frame
rules governing the matter, there would have been some
tangible.
circumstances or situations in relation to which the practical opecation of section 3 (1) could have been limited. But in the abselll:e
of any rules furnishing guidelines on the subject, it is
difficult to
predicate that, in practice, the operation of the section will be limited
to a certain class of cases only.
The absence of rules on the subject
makes the unguided discretion of the competent authority the sole.
arbiter of the question as to which cases would fall within the section·
and which would fall outside it.
Any doubt as to the width of the area in which section 3(1)
operates and is intended to operate, is removed by the provision contained in section 3 (2), by virtue of which the competent authority
"shall" approve the proposf!), "if it is satisfied that there are adequate·
and reasonable grounds" for the proposal.
This provision,
under
the guise of conferring the power of approval, confers upon the competent authority an appellate power of great magnitude. The competent authority is made by that provision the sole judge of the propriety of the proposed order since it is for that authority to see whether
there are reasonable grounds for the proposal. The authority is indeed made a judge both of facts and law by the conferment upon it of
a power to test the validity of the proposal on the vastly subjective
touch-stone of adequacy and reasonableness.
Section 3 (2), in my
opinion, leaves no scope for reading down the provisions of sectioro
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ALL SAINTS HIGH SCHOOL v. GOVT. OF A.P. (Chandrachud, C.J.) 937
3 ( ! ) .