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

- **Citation:** [1987] 1 S.C.R. 238
- **Court:** Supreme Court of India
- **Decided:** 1986-11-17
- **Bench:** O. Chinnappa Reddy, G.L. Oza
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/frank-anthony-public-school-employees-association-v-union-of-india-ors-9358
- **Pages:** 37

## Headnote

Equal pay for equal work, principle as envisaged in section JO of
~
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the Delhi School Education Act made inapplicable to an unaided
minority school by section 12, thereof-Whether section 12 is hit by
Articles I4, 2I and 23 of the Constitlltion-Whether sections 8 to I I -'"'{-
impinge on the right of the minorities to administer educational institu-
.
tions of their choice envisaged in Articie 30 of the Constitution.
Chapter IV of the Delhi School Education Act, comprising of
sections 8 to 12 deal with "Terms and conditions of service of employees
D
of recognised private schools". Chapter V consisting of sections 13 to 15
contains "the provisions applicable to unaided minority schools". Section lil( I) specifically requires that, "the scales of pay and allowances,
medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognised private school shall not
be less than those of the employees of the corresponding status in
E
schools run by the appr;,priale authority". But section l2 provides,
"Nothing contained in this Chapter shall apply to an unaided minority
school." Chapter V contains certain provisions relating to unaided
minority schools.
The effect of section 12 of the Act is to make sections 8. 9. I 0 and I I
F
inapplicable to unaided minority schools: First, the Administrator may
not make rules regulating the conditions of service of employees of
unaided minority schools. But so far as the minimum qualifications for
recruitment of employees are concerned, Section 13 enables the
Administrator to make regulations even in respect of __ unaided minority
· schools. Second, ti.~ prior approval of the Director need not be obtained
G
for the dismissal, removal. reduc:tion in rank or termination of service
otherwise than hy dismissal or removal of an employee of an unaided
minority sc'iool. Third. against such dismissal, removal or reduction in
rank, there is to be no appeal. Fourth, neither prior nor subsequent
approval of the Director need be obtained to suspend any of the employees of an unaided minority school. Fifth, the scales of pay and alloH
wances, medical facilities, pension, gratuity, provident fund and other
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F.A. PUBLIC SCHOOL v. UNION OF INDIA
239
benefits which may be given to employees are subject to no regulation
A
except that they should be contained in a written contract of service and
need not conform to the scales of 11ay and _allowances etc. of the employees of the corresponding status in schools run hy the appropriate
authority as in the case of other recognised private schools.
Frank Anthony Public School is a recognised unaided minority
school within the meaning ofsections 2(x) read with 2(e), 2(o) and 2(1) of
the. Act. In the matter of emoluments and conditions of service such as
leave etc., teachers and employees of the Frank Anthony Public School
lag far behind the teachers and employees of Government schools.
}-·several other conditions of service of teac~ers and employees also com-
• are unfavourably with the conditions of service of teachers and employees of Government Schools. But for section 12 and if sections 8 to 11
were applicable to them, they would at least be as well off as teachers
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and other employees of Government Schools. The Petitioner association, therefore, has filed the writ petition under Article 32 of the
Constitution, seeking equalisation of their pay scales and conditions of
service with those of their counterparts in Government Schools and for
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a declaration that section 12 of the Act is void and constitutionally
invalid as offending Articles 14, 21 and 23 of the Constitution.
Sometime after the filing of the writ petition and before the preliminary hearing of the writ petitions, some developments took place. ·
On May 9, 19!!6 at 10.30 A.M. during the daily school break between 10
E
A.M. and 10.40 A.M. the teaching staff other than one or two teachers
who are required to be on duty, took out a .. silent march" w

## Text

_Characters 0–39,783 of 97,582. This is a partial read: ask again with offset=39783 for what follows._

A
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FRANK ANTHONY PUBLIC SCHOOL EMPLOYEES
ASSOCIATION
v.
UNION OF INDIA & ORS.
NOVEMBER 17, 1986
[O. CHINNAPPA REDDY AND G.L. OZA, JJ.]
Equal pay for equal work, principle as envisaged in section JO of
~
c
the Delhi School Education Act made inapplicable to an unaided
minority school by section 12, thereof-Whether section 12 is hit by
Articles I4, 2I and 23 of the Constitlltion-Whether sections 8 to I I -'"'{-
impinge on the right of the minorities to administer educational institu-
.
tions of their choice envisaged in Articie 30 of the Constitution.
Chapter IV of the Delhi School Education Act, comprising of
sections 8 to 12 deal with "Terms and conditions of service of employees
D
of recognised private schools". Chapter V consisting of sections 13 to 15
contains "the provisions applicable to unaided minority schools". Section lil( I) specifically requires that, "the scales of pay and allowances,
medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognised private school shall not
be less than those of the employees of the corresponding status in
E
schools run by the appr;,priale authority". But section l2 provides,
"Nothing contained in this Chapter shall apply to an unaided minority
school." Chapter V contains certain provisions relating to unaided
minority schools.
The effect of section 12 of the Act is to make sections 8. 9. I 0 and I I
F
inapplicable to unaided minority schools: First, the Administrator may
not make rules regulating the conditions of service of employees of
unaided minority schools. But so far as the minimum qualifications for
recruitment of employees are concerned, Section 13 enables the
Administrator to make regulations even in respect of __ unaided minority
· schools. Second, ti.~ prior approval of the Director need not be obtained
G
for the dismissal, removal. reduc:tion in rank or termination of service
otherwise than hy dismissal or removal of an employee of an unaided
minority sc'iool. Third. against such dismissal, removal or reduction in
rank, there is to be no appeal. Fourth, neither prior nor subsequent
approval of the Director need be obtained to suspend any of the employees of an unaided minority school. Fifth, the scales of pay and alloH
wances, medical facilities, pension, gratuity, provident fund and other
238
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F.A. PUBLIC SCHOOL v. UNION OF INDIA
239
benefits which may be given to employees are subject to no regulation
A
except that they should be contained in a written contract of service and
need not conform to the scales of 11ay and _allowances etc. of the employees of the corresponding status in schools run hy the appropriate
authority as in the case of other recognised private schools.
Frank Anthony Public School is a recognised unaided minority
school within the meaning ofsections 2(x) read with 2(e), 2(o) and 2(1) of
the. Act. In the matter of emoluments and conditions of service such as
leave etc., teachers and employees of the Frank Anthony Public School
lag far behind the teachers and employees of Government schools.
}-·several other conditions of service of teac~ers and employees also com-
• are unfavourably with the conditions of service of teachers and employees of Government Schools. But for section 12 and if sections 8 to 11
were applicable to them, they would at least be as well off as teachers
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and other employees of Government Schools. The Petitioner association, therefore, has filed the writ petition under Article 32 of the
Constitution, seeking equalisation of their pay scales and conditions of
service with those of their counterparts in Government Schools and for
D
a declaration that section 12 of the Act is void and constitutionally
invalid as offending Articles 14, 21 and 23 of the Constitution.
Sometime after the filing of the writ petition and before the preliminary hearing of the writ petitions, some developments took place. ·
On May 9, 19!!6 at 10.30 A.M. during the daily school break between 10
E
A.M. and 10.40 A.M. the teaching staff other than one or two teachers
who are required to be on duty, took out a .. silent march" which was
joined by the Class IV Staff also. Except those on duty, all the others
took part in the "silent march". Classes were resumed al 10.40 A.M.
and were not affected in any manner. There were no speeches, no
, --;-.\ shouting of slogans, no violence and no disruption of studies., But even
)
· so a notice was i.Sued by the principal on April 10, 1986 warning the
· J.
members of the staff. Despite the warning a similar silent march was
'
taken out on April 10, 1986 also. The management issued orders of
suspension against Mrs. Malik, Mrs. Dhar, Mrs. Balman and Mr.
Bush. The Petitioner Association ·challenged the said suspension orders
as well and sought stay of the operation of the orders of suspension of
the four teachers.
The respondents in response to the "Rule Nisi" contended; (i)
that the classification made by section 12 was perfectly valid; (ii) that
but for section 12, sections 8 to 11 would have to be held to interfere
with the right guaranteed by Article 30 of the Constitution to religious
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240
' SUPREME COURT REPORTS
[1487] I S.C.R.
and ·linguistic minorities to administer educational institutions of their
choice; (iii) the petitioner school was an educational institution of great
repute whose excellence spoke for itself and therefore it did not necessitate any regulation by any other authority; (iv) that the scale of fee
should continue to be low so that it may be within the reach of the
ordinary people whom it was intended to reach. It was because of this
desire of the management to keep the scale of fee low that the management could not pay higher salaries and allowances; and (v) that if
section l 2 was struck down and the management was compelled to pay
the same scale of salary and allowances as was paid to employees of
Government schools, the Frank Anthony Public School would have to ,J
be closed down.
' l
Allowing the writ petition, the Court,
HELD: l. Section 12 of the Delhi School Education Act which
makes the provisions of Chapter IV inapplicable to minority institutions
. is discriminatory· and void not only because it makes section I 0 inappliD cable to minority institutions, but also because it makes sections 8( I),
8(3), 8(4), 8(5), 9 and l 1 inapplicable tu unaided minority institutions.
That the Parliament did not understand sections 8 to I l as offending the
fundamental right guaranteed to the minorities under Article 30( l) is
evident from the fact that Chapter IV applies to aided minor;ty institutions and it cannot for a moment he suggested that surrender of the ·
E right under Article 30( l) is the price which the aided minority institutions have to pay to obtain aid from the Government. [2nG-273AI
2. l From the decided cases, it is clear, that there is a general and
broad consensus about the content and dimension of the Fundamental
Right guaranteed by Article 30( l) of the Constitution. The right
F
guaranteed to religious and linguistic minorities by Article 30( I ) is two
fold, to establish and to administer educational institutions of their
choice. The key to the Article lies in the words "of their own choice".
These words indicate that the extent of the right is to be determined, not
with reference to any concept of State necessity and general societal
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interest but with reference to the educational institutions themselves,
that is, with reference to the goal of making the institutions "effective
vehicles of education for the minority community or other persons who
resort to them". It follows that regulatory measures which are designed
towards the achievement of the goal of making the minority educational
institutions effective instruments for imparting education cannot be
considered to impinge upon the right guaranteed by" Article 30( I) of the
Constitution. The question in eacH case is whether the particular mea-
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F.A. PUBLIC SCHOOL v. UNION OF INDIA
24 l
sure, it in the ultimate analysis, designed to achieve such goal, without
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of course nullifying any part of the right of management in substantial
measure. [267C-E]
In re Kerala Education Bill, 1957 [1958] SCR 995; Rev. Sidha·
jbhai School and Ors., v. State of Bombay and Anr., [1963] 3 SCR 837;
State of Kera/a etc v. Mother Provincial etc, [1971] l SCR 734; The
B
Ahmedabad St. Xaviors College Society & Anr., v. State of Gujarat and
Anr., [ 1975] I SCR 173; All Saints High School etc., v. The Govern·
ment of Andhra Pradesh AIR 1960 SC 1042 discussed.
2.2 What was decided by the Supreme Court in In re Kera/a
Educational Bill, 1957 was that Anglo-Indian Schools which were entitled to receive grants under the Constitution and which received no
more aid than that to which they were entitled under the Constitution
could not be subjected to stringent terms as fresh or additional conditions precedent to enable them to obtain the grant. Such conditions
would infringe their rights under Article 337 and violate their rights
under Article 30(1). To place an interpretation that any conditions
imposed for granting recognition to unaided minority educational in·
stitutions would infringe on the right of administration granted to them
by Article 30( l) of tile Constitution would be subversive of the right
guaranteed by Article 30(1) since it would make the extent of the right
depend on the receipt or non-receipt of aid. If one thing is clear, it is this
that the Fundamental Right guaranteed .by Article 30( !) cannot be surrendered, wholly or partly, and the authorities cannot make the
grant of aid conditional on the surrender of a part of the Fundame,;tal
Right. [2530-E]
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2.3 Sections 8(1), 8(3), '8(4) and 8(5) do not encroach upon any
right of minorities to administer their educational institutions. Section
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8(2), however does interfere with such right and, therefore, inapplicable to minority institutions section 4 is again innocuous since section
9 which applies to unaided minority schools is virtually on the same
lines as sectioq 9. [272F-G]
2.4 Section 8( l) merely empowers the Administrator to make
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rules regulating the minimum qualifications for recruitment, and the
conditions of service of recognised private schools. Section 8(1) is inmicuous and in fact section 13 which applies to unaided minority
schools is almost on the same lines as section 8(1 ). Section 8(2) which
requires the prior approval of the Director for the dismissal, removal,
reduction in rank or other termination of the services of an employee of
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SUPREME COURT REPORTS
[!'187] l_ S.C.R.
A a recognised private school is objectionable. Section 8(3) provides for an
;.,
appeal to the Tribunal constituted under s. II, that is, a Tribunal
consisting of a person who has hold office as a District Judge or any
equivalent judicial office. The appeal is not to any departmental official
hut to a Tribunal ma.toed by a person who has held office as a District
Judge and who is required to exercise his powers not arbitrarily hut in
B the same manner as a court of appeal under the Code of Civil Procedure. The right of appeal itself is confined to a limited class of cases,
namely, those of dismissal, removal or reduction in rank and not to
every dispute between an employee and the management. The limited
right of appeal, the character of the authority constituted to hear the ~·
appeal and the manner in which tm appellate power is required to he exerci-
'
c sed make the provision for an appeal perfectly reasonable. [270E-G, 27 !D-F)
2.5 Section 8(4) would he inapplicable to minority institutions ifit
had conferred blanket power on the Director to grant or withhold prior
approval in every ca'!e where a management proposed to suspend an
employee but it is not so. The management has the right to order imD mediate suspension of an employee in case of gross misconduct hut in
order to prevent an abuse of power by the management a safeguard is
provided to the employee that approval should he obtained within I 5
days. The Director is also hound to accord his approval if there are
adequate and reasonable grounds for such suspension. The provisions is
eminently reasonable and sound. [271H-272B)
E
The Ahmedabad St. Xaviers College Society & Anr. v. State of
Gujarat and Anr., (1975) I SCR 173; All Saints High School etc. v. The
Government of Andhra Pradesh AIR 1%0 SC 1042 referred to.
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2.6 The excellence of the instruction provided hy an institution
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would depend directly on the excellence of the teaching staff, and in
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turn, that would depend on the quality and the contentment of the
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teacher. Conditions of service pertaining to minimum qualifications of
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teachers, their salaries, allowances and other conditions of service
which ensure security, contentment and decent living standards to
teachers and which will consequently enable them to render better
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service to the institution and the pupils cannot surely be said to be
violative of the fundamental right guaranteed by Article 30( I) of the
Constitution. The management of a minority Educational institution
cannot be permitted under the guise of the fundamental right guaranteed by Article 30(1) of the Constitution, to oppress or exploit its
employees any more than any other private employee. Oppression or
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exploitation of the teaching staff of an educational institution is hound
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F.A. PUBLIC SCHOOL v. UNION OF INDIA
243
to lead; inevitably, to discontent and deterioration of the standard of A
instruction imparted in the institution affecting adversely the object of
making the institution an effective vehicle of education for the minority
community or other persons who resort to it. The management of
minority institution cannot complain of invasion of the fundamental
right to administer the institution when it deniei; the very object of
Article 30(1) which is to make the institution an effective vehicle o~ B
education. Therefore, section JO of the Delhi Education Act which requires that the scales or pay and allowances, medical facilities, pension,
gratuity, provident fund and other prescribed benefits of the employees
of a recognised private school shall not be less than those of the emp·
loyees of the corresponding status in schools run by the appropriate
authority and which further prescribes the procedure for enforcement c
of the requirement is a permissible regulation. aimed at attracting com·
petent staff and consequently at the excellence of the educational institution. It is a permissible regulation which in no way detracts from
the fundamental right guaranteed by Article 30( I) to the minority institution to administer their educational institutions. Therefore to the
extent that section 12 makes section IO inapplicahle to unaided minority
institutions, it is clearly discriminatory. [269B-E, 270C-D I
The Ahmedabad St. Xaviers College Society & Anr:, v. The State
of Gujarat & Anr., (1975) 1 SCR 173; In re Kerala Education Bill,
1957, (1958] SCR 995; The State of Kerala v. Mother Provincial (1971)
D
1 SCR 734; All Saints High Schbol v. Government of Andhra Pradesh
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AIR 1960 SC 1042 relied on~
ORIGINAL JURISDICTION: Writ Petition (Civil) No. 587 of
1986
Under Article 32 of the Constitution of India.
C.S. Vaidyanathan, M.K.S. Menon and S.R. Bhatt for the
Petitioner.
G. Ramaswamy, Additional Solicitor General, Miss Sushma
Relan and R.D. Agarwala for the Responde~t.
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Frank Anthony. Sushi! Kumar and S.P. Mitra for fi.espondent
No.3.
The Judgment of the Court was delivered by
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244
SUPREME COURT REPORTS
[1987] I S.C.R.
A
CHINNAPPA REDDY, J. The scales of pay and other conditions
of service of teachers and other employees of the Frank Anthony
Public School New Delhi compare very unfavourably with those of
their counterparts of the Delhi Administration Schools. The scales of
pay of teachers, primary, T.G.T. or middle, and senior or P.G.T. of
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Government schools (that is, schools run by the Delhi Administration), as of today, are 1200-30-1560-EB-40-2000, 1400-40-1600-502300-EB-60-2600 and 1640-60-2600-EB-75-2900 respectively. Primary
and middle school teachers are entitled to House Rent Allowance of
Rs.250. City Compensatory Allowance of Rs. 75 and .Medical Allowance of Rs.25 while, Senior school teachers are entitled to House
Rent Allowance of Rs.450, City Compensatory Allowance of Rs. 100
and Medical Allowance of Rs.25. At the starting point a primary school
teacher gets a total sum of Rs. 1540 per month by way of salary and
allowances, a middle school teacher gets a total sum of Rs. 1750 and a
senior school teacher a total sum of Rs.2215. The scales of pay of
primary, middle and senior school teachers of the Frank Anthony
Public School are 275-20-475-25-600-25-725, 300-25-550-30-770-30-850
and 400-30-700-35-875-35-1050. They get allowances of Rs. 702.50, 715
and 765 respectively. At the starting point the salary and allowances
together come to Rs. 977.50, 1015 and 1165 respectively. In the case of
teachers of Government schools they are entitled to gratuity of 15
days' pay for every year of service, Provident Fund at the rate of
8.33% and Leave Travel Concession once every two years to their
home town. In the case of teachers of the Frank Anthony Public
School there is provision for Contributory Provident Fund and Family
Pension only. Teachers of Government schools are entitled to Casual
Leave of 12 days, Earned Leave of IO days, Sick Leave of IO days and
Maternity Leave of 90 days, whereas, teachers of the Frank Anthony
Public School are entitled to Casual Leave of 10 days, no Earned
Leave, Sick Leave of 14 days and Maternity Leave of 30 days. In the
case of Class IV employees, in Government schools, the scale of pay is
750-8-790-EB-!0-940 with House Rent Allowance of Rs.150, City
Compensatory Allowance of Rs.30 and Medical Allowance of Rs.25.
The scale of pay of Class IV employees of the Frank Anthony Public
School is 70-5-120-7.50-195 with allowances of Rs.473. The total starting salary and allowances of Class IV employees in Government
Schools and the Frank Anthony Public School are Rs. 955 and Rs.5~3
respectively. It is evident that in the matter of emoluments and conditions of service such as leave etc. teachers and employees of the Frank
Anthony Public School lag far,behind the teachers and employees of
Government schools. There are other conditions of service of teachers
H. and employees of the Frank Anthony Public School which also com1
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F.A. PUBLIC SCHOOL v. UNION OF INDIA (REDDY, J.]
245
pare unfavourably with the conditions of service of teachers and employees of Government Schools. The Frank Anthony Public School
employees Association seeks equalisation of their pay scales and con-
. ditions of service with those of teachers and employees of Government
Schools. Sections 8 to 12 of the Delhi School Education Act together
comprise .Chapter IV of that Act which deals with "Terms and conditions of service of employees of recognised private Schools." If Sections 8 to 11 were applicable to the teachers and other employees of
the Frank Anthony Public School, they would at least be as well off as
teachers and other employees of Government Schools. But section 12
)--.Provides, "Nothing contained in this Chapter shall apply to an unaided
, minority school." The Frank Anthony Public School is an unaided
minority school. By the force of Section 12 of the Act, the provisions
of Sections 8 to 11 do not apply to the Frank Anthony Public School.
Therefore, \he Frank Anthony Public School Employees Association
has sought from this Court a declaration that section 12 of the Delhi
School Education Act is unconstitutional as being violative of Articles
14, 21 and 23 of the Constitution. A similar declaration is sought in
regard to Section 21 of the Act also but Is not pressed before us. A
direction is also sought to the respondents, the Union of India and the
Delhi Administration to enforce all the provisions of the Delhi ~chool
Education Act, other th'!n Sections 12 and 21, and "to fix the pay,
allowances, benefits etc. to persons employed in the schools governed
by the Act in relation to unaided minority schools at par with the
persons employed in other schools."
/""'-\
It appears that sometime after the filing of the writ petition and
before the preliminary hearing of the writ petition some developments
took place to which it is necessary to refer here. On May 9, 1986 at
10.30 a.m. the teaching staff other than those on duty took out 'a silent
march' which was joined by the Class IV staff also. The school hours
have a break between 10.00 a.m. and 10.40 a.m. During the break only
one or two teachers are on duty. Except those on duty, all the others
took part in the 'silent march'. Classes were resumed at 10.40 a.m. and
were not affected in any manner. There were no speeches, no shouting
of slogans, no violence and no disruption of studies. But even so a
notice was issued by the principal on April 10,_ 1986 warning the members of the staff. Despite the warning a similar 'sil~nt march' was taken
out on April 10, 1986 also. The management issued orders of suspension against Mrs. Malik, Mrs. Dhar, Mrs. Balman and Mr. Bush.
While granting 'Rule Nisi' in the main writ petition, this Court also
granted stay of operation of the orders of suspension of the four
teachers. The inquiries against them were also stayed.
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SUPREME COURT REPORTS
[ l987] l S.C.R.
The attack of the petitioner against Section 12 of the Delhi
A Education Act was based on Art. 14 while the provisions were sought
to be sustained by the respondents on the basis of Article 30 of the
Constitution. While it was argued by Mr. Vaidyanathan, learned
counsel for the petitioner that Section 12 was hit by Art. 14 and that
Sections 8 to 11 did not, in any manner, impinge upon Article 30 of the
B Constitution, it was argued, on behalf of the respondents, by the
learned Additional SoliCitor-General and by Shri Frank Anthony, that
the classification made by Section 12 was perfectly valid and that, but
for Section 12, Sections 8 to 11 would have to be held to interfere with
the right guaranteed by Art. 30 to religious and linguistic minorities to.-/
administer educational institutions of thei,r choice and Sections 8 to l I
1
would consequently be inapplicble to such minority educational
C institutions.
In order to appreciate the controversy between the parties, it is
necessary to refer to the scheme and the important provisions of the
Delhi School Education Act. The long title of the Act recites that it is
D "An act to provide for better organisation and development of school
education in the Union Territory of Delhi and for matters connected
therewith or incidental thereto." Section 2(d) defines "Aided School"
as meaning "a recognised private school which is receiving aid in the
form of maintenance great from the Central Government, Administrator or local authority or any other authority designated by the
E Central Government, Administrator or a local authority." "Recognised School" is defined by Section 2(t) to mean "a school recognised
by the appropriate authority." Section 2(e) defines "appropriate
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authority" to mean:
·
"(i) in the case of a school recognised or to be recognised /'
by an authority designated or sponsored by the Central
.
Government, that authority;
(ii) in the case of a school recognised or to be recognised
by the Delhi Administration, the Administrator or any
other officer authorised by him in this behalf;
(iii) in the case of a school recognised or to be recognised
by the Municipal Corporation of Delhi, that Corporation;"
,
We may state here that in the case of the Frank Anthony Public School
the appropriate authority is the Delhi Administration. Section 2(h)
H defines 'employee' to mean "a teacher and includes every other em-
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F.A. PUBLIC SCHOOL v. UNION OF INDIA (REDDY, J.]
247
ployee working in a recognised school". "Minority school" is defined
by sectiOI) 12( o) to mean "a school established and administered by a
minority having the right to do so under clause (I) of Art. 30 of the
Constitution''. Section 2(x) defines "unaided minority school" to
mean "a recognised minority school which does not receive any aid."
It is undisputed that the Frank Anthony Public School is an unaided
minority school. Chapter II of the Act deals with "establishment, recognition, management of and aid to schools." Chapter III deals with
school property. Chapter JV consisting of sections 8 to 12, deals with
"Terms and Conditions of service of employees of recognised private
'r-schools". Chapter V, consisting of Sections 13 to 15, contains "the
'
provisions applicable to unaided miflority schools." We are concerned
with Chapters IV and V. Chapter VI deals with "admission to schools
and fees", Chapter VII deals with "Taking over the management of
schools" and Chapter VIII with miscellaneous provisions. Going back
to Chapter JV, Sections 8( l) empowers the Administrator to make
rules regulating 'the minimum .qualifications for recruitment, and the
. conditions of service, of employees of recognised private schools'. The
first proviso to Section 8( l) stipulates that salary and rights in respect
of leave of absence, age of retirement and pension of an employee of
an existing school at the commencement of the Act may not thereafter
be varied to his disadvantage. The proviso gives an indication that
salary and rights in respect of leave of absence, age of retirement and
pension of an employee are covered by the expression "the conditions
of-service". We mention this because in the course of the argument it
was suggested that salary is not a condition of service. Sub-section(2)
of Section 8 stipulates that, subject to any rule that may be made, "no
employee of a recognised private school shall be dismissed, removed
or reduced in rank nor shall his service be otherwise terminated except
, with the prior approval of the Director." Section 8(3) enables an emp1 loyee of a recognised private school who is dismissed, removed or
reduced in rank to prefer an appeal to the Tribunal constituted under
•,
Section 11 against the order of such dismissal, removal or reduction in
rank. What is of importance and requires to be noticed is that the prior
approval of the Director contemplated by Section 8(2) and the appeal·
for which provision is made by Section 8(3) are cofin_ed to ·dismissal,
removal and reduction in rank and not to other cases of. disciplinary
action or other administrative orders of the management. Section 8(2)
~ also provides for the prior ·approval of the Director in the ca~e of
termination of service otherwise then dismissal or removal also. Section 8(4) requires the managing committee of a recognised private
school to communicate to the Director and to obtain his prior approval
before suspending any of its employees. However, the provision
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SUPREME COURT REPORTS
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A ·enables the managing committee to suspend an employee with immediate effect and without the prior approval of the Director if it is
satisfied that such immediate suspension is necessary by reason of the
gross misconduct of the employee, within the meaning of the Code of
Conduct. Such· immediate suspension will cease to have effect after
fifteen days if approval of the Director is not obtained in the mean
B while. Section 8(5) authorises the Director to accord his approval to
suspension of an employee if he is satisfied that there are adequate and
reasonable grounds for such suspension. Section 9 prescribes that
every employee of a recognised school shall be governed by the prescribed Code of Conduct and that the employee shall be liable to th:;-(
prescribed disciplinary action for violation of any provision of Code of
Conduct. Section 10(1) requires that :'the scales of pay and allowanC ces, medical facilities, pension, gratuity, provident fund and other
prescribed benefits of the employees of a recognised private school
shall not be less than those of the employees of the corresponding
status in schools run by the appropriate authority." The proviso to
Section IO( 1) requires the appropriate authority to direct in writing the
D managing committee of any recognised private school to bring the
scales of pay and allowances etc. of all the employees of such schools
to the level of those of the employees of the corresponding status in
schools _run by the appropriate authority. A.further proviso to Section
10( 1) contemplates withdrawal of recognition if such direction is not
complied with. Section 10(2) requires the managing committee of evE ery aided school .to deposit every month its share towards pay and
allowances, medical facilities etc .. with the Administrator and requires
the Administrator disburse, or cause to be disbursed, the salaries and
allowances to the employees of aided schools. Section 11 provides for
the constitution of ll Tribunal consisting of one person who shall have
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held the office of a District Judge or any equivalent judicial office. ..J
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Section 11( 6) provides that the Tribunal shall, for the purpose of dis-(
posal of an appeal, have the same powers as are vested in a court of
appeal by the Code of Civil Procedure. Then comes Section 12 which
says "Nothing contained in this Chapter shall apply to an unaided
minority school." It is because of this provision that Sections 8, 9, 10
and 11 become inapplicable to unaided minority schools. Chapter V
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consists of Section 13 to 15 and these are the provisions of the Act
which are applicable to unaided minority schools .only. Section 13
enables the Administrator to make rules regulating the minimum qualifications for and method of, recruitment of employees of unaided
minority schools. Section 14 prescribes that every employee of an
unaided private school shall be governed by such Code of Conduct as
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may be prescribed. Execpt in the matter of disciplinary acti;,n the
F.A. PUBLIC SCHOOL v. UNION QF INDIA (REDDY, J.l
249
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Code of Conduct prescribed for employees of unaided minority
schools under Section 14 is virtually the· same as the Code of Conduct
prescribed for all recognised schools under Section .9. Section 15(1)
requires the managing committee of every unaided )Jlinority school to
enter into a written contract of service with every employee of such
school. Section 15(2) provides that a copy of every contract of service
,,.x
shall be forwarded by the managing comniittee to the A'dministrator
who shall, on receipt of such copy register it. Section 15(3) provides
that every contract of service shall provide for "(a) the terms and
conditions of service of the employee, including the scale of pay and
/-cither allowances to which· he shall be entitled; (b) the leave of
· absence, age of retirement, pension and gratuity or-E?ntributory provident fund in lieu of pension and gratuity, and. medical and other
benefits to which the employee shall be entitled; (c) the penalties
--j
which may be imposed on the employee for the violation of any Code
of Conduct or the breach of any term of the contract entered into by
him; (d) the manner in which disciplinary proceedings in relation to
the employee shall be conducted and procedure which shall be followed before any employee is dismissed, removed from service or
reduced in rank; ( e) arbitration of any dispute arising out of any
breach of contract between the employee and the managing committee
with regard to-(i) the scales of pay and other allowances, (ii) leave of
absence; age of retirement, pension, gratu.ity, provident fund, medical
~·
and other benefits, (iii) any disciplinary action leading to the dismissal
or removal from service or reduction in rank of the employee, (f) any
other matter which, in the opinion of the managing committee, out to
be, or may be, specified in such contract." Section 16, which occurs in
Chapter VI, is applicable to unaided minority schools also and·deals
with admission to recognised schools. Section 17 and 19 are applicable
,-\to both aided and unaided schools. Section 19(1) requires that every
recognised higher secondary school shall be affiliated to one or more
,
of the Boards or Councils conducting such examination and shall fulfil
_ .... ,
·.~
the conditions prescribed by the Board or Council. Chapter VII consists of two sections. Section 20 deals with taking over the management
of schools and Section 21 provides that Section 20 shall not apply to a
minority school. As already mentioned by us, though the question of
the vires of Section 21 was also. raised in the petition, the point was not
pressed before us.
The effect of Section 12, as already mentioned by us, is to make
Sections 8, 9, 10 and 11 inapplicable to unaided minority schools;
First, the Administrator may not make rules regulating the conditions
of service of empoyees of unaided minority schools. But so far as the
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A minimum qualifications for recruitment of employees are concel'!Jed,
Section 13 enables the Administrator to make regulations even in
iespect of unaided minority schools. Second, the prior approval of the
Director need not be obtained for the dimissal, removal, reduction in
rank or termination of service otherwise then by dismissal or removal
of an employee of an unaided minority school. Third, against such
8 dismissal, removal or reduction in rank, there is to be no appeal.
Fourth, neither piror nor subsequent approval of the Director need be
obtained to suspend any of the employees of an unaided minority
/ school. Fifth, the scales of pay and allowance, medical facilities, pen-
.
sion, gratuity, provident fund and other benefits which may be given--(
to employees are subject to no regulation except that they should be
c contained in a written contract of service and need not conform to the
scales of pay and allowances etc. of the employees of the correspow.ling status in schools run by the appropriate authority as.in the case of
other reoognised private schools.
To recall the contentions of the learned counsel for either side,
D on the one hand it was submitted by Shri C.S. Vaidyanathan, learned
counsel for the petitioner that these drastic departures which result
from giving effect to s. 12, make Section 12 discriminatory and offensive to Art. 14 of the Constitution. The provisions which are made
inapplicable to aided minority institutions because of Section 12 are no
more than regulatory measures aimed at the excellence of the institu-
"1'
E tion and in no way impinge on the Fundamental Right of the minorities, -religious or· linguistic, to administer educatio<1al institutions of
their choice. On the other hand, it was the contention of the learned
Additional Solicitor General that these provisions are inapplicable to
minority institutions since they interfere with the right of management
F vested in the minorities. According to him, payment of salary, allo-(-'
wances etc. is part of the right of the management to appoint members
·
of the staff. The economics of an unaided institution is entirely in the
\.
hands of its management and the right of the management to pay such
salaries and allowances as the management deems fit is a part and
parcel of the right to administer the institution. More so the right to,
take disciplinary action which cannot be the subject of any supervision
G by any other authority. But for Section 12, Sections 8 to 11 would
impinge on the right of the minorities to administer Educational
Institutions of their choice and would therefore, be inapplicable to -4
minority Educational Institutions. Shri Frank Anthony made submissions on the same lines as the learned Additional Solicitor General and
in addition pointed out that the Frank Anthony Public School was an
H Educational Institution of great repute and that the excellence of the
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F.A. PUBLIC SCHOOL v. UNION OF INDIA (REDDY, J.)
251
institution was such that it did not necessitate any regulation by any A
other authority. The excellence of the institution spoke for itself. He
submitted that the scale of fee charged by the institution was low
compared with other private institutions and it was the desire of the
management that the scale of fee should continue to be low so that it
may be within the reach of the ordinary people whom it was intended
to reach. It was because of this desire of the management to keep the B
scale of fee low that the management could not pay higher salaries and
allowances and we were repeatedly iold that if Section 12 was struck
down and the management was compelled to pay the same scale of
salary and allowances a~ was paid ·to employees of Government
)-Schools, the Frank Anthony Public School would have to be closed
' down.
At this juncture, we may refer to Art. 30( 1) and 30(2) of the
Constitution which are as follows:-
c
"30(1) All minorities, whether based on religion or language, shall have the right to establish and administer eduD
cational institutions of their choice.
(IA) ............................................... .
(2) The State shall not, in granting aid to educational
institutions, discriminate against any educational instiE.
tution on the ground that it is under the management of a
minority, whether based on religion or language."
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The content of the Fundamental Right guranteed by Art. 30( 1)
of the Constitution has been the subject of several decisi•;>ns of this
~ Court. The leading case is that a Constitution bench of seven judges,
F
! In re The Kera/a Education Bill [ 1957] SCR 995. In an oft quoted
.(
passage S.R. Das, Chief Justice, explained the content of Art. 30( 1) as
,-. .
follows:
"The first point to note is that the article gives certain
rights not only to r~ligious minorities but also to linguistic· G
minorities. In the next place, the right conferred on such
minorities is to establish educational institutions of their
choice. It does not say that minorities based on religion
should establish educational institutions for teaching religion only, or that linguistic minorities should have the right
to establish educational institutions for teaching their
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language only. What the article says and means is that the
religious and the linguistic minorities should have the right yto establish educational institutions of their choice.
There is no limitation placed on the subjects to be taught in
such educational institutions. As such minorities will ordinarily desire that their children should be brought up properly and efficiently and be eligible for higher university
education and go out in the world fully equipped with such
intellectual attainments as will make them fit for entering
the public services, educational institutions of their choice
will necessarily include institutions imparting general secu:-f'
Jar education also. In other words, the article leaves it to
their choice to establish such educational institutions as will
serve both purposes, namely, the purpose of conserving
their religion, language or culture. and also the purpose of
givi)lg a thorough, good general education to their children. The next thing to note is that the article, in terms,
gives all minorities whether based on religiun or language,
two rights. namely. the right to establish and the right to
administer educational institutions of their choice. The key
to the understanding of the true meaning and implication
of the article under consideration are the words "of their
own choice ... It is said that the dominant words is "choice ..
and the content of that article is as wide as the choice of the
particular minority community may make it. The ambit of
the rights coferrred by Art. 30( l) has, therefore.