Ester Axene Res High School and Ors vs State of AnAP20192507191725443COM247962

MANU/AP/0045/2019
Equivalent/Neutral Citation: 2019(5)ALD72, 2019(3)ALT404, 2019:APHC :15849
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

W.P. No. 28912 of 2018
Decided On: 16.04.2019
Ester Axene Res. High School and Ors. Vs. State of Andhra Pradesh and Ors.
Hon'ble Judges/Coram:
C. Praveen Kumar, Actg. C.J. and M. Satyanarayana Murthy, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Ch. Samson Babu, G. Rama Sarma, N. Subba Rao, N.
Bharat Babu, N. Ashwani Kumar, Vijay Mathukumalli, K. Rammohan, P.V.S.S.S. Rama
Rao, T.V.S. Kumar and M.R. Tagore
For Respondents/Defendant: G.P.
Case Note:
Education - Legality of Government Order - Whether amendment in impugned
G.O. by which taking away right of making appointments to staff in private
aided and unaided educational institutions is illegal, arbitrary,
unconstitutional and violative of Article 14 and 30(1) of Constitution? - Held,
though, educational institutions in State are governed by A.P. Education Act,
and none of provisions of A.P. Education Act are in violation of fundamental
right guaranteed under Article 30(1) of Constitution, but, in guise of
regulations or rules, State amended G.O.Ms. No. 1 Education (PS.2)
Department by issuing G.O.Ms. No. 43 School Education (PS) Department,
taking away right of administration of minority educational institutions from
its management - A similar vain attempt was made by State earlier by issuing
G.O.Ms. No. 76 and said G.O. was challenged before High Court, wherein
Division Bench struck down same as being unconstitutional - Despite striking
down G.O., first respondent again repeated same mistake, and tried to hijack
power of administration from minority educational institutions, in utter
violation of fundamental right guaranteed under Article 30(1) of Constitution
- Since, G.O.Ms. No. 43 School Education (PS) Department infringes
fundamental right of minority institutions, same is liable to be struck down -
In view of foregoing discussion, writ petitions are allowed declaring G.O.Ms.
No. 43 as void and unconstitutional, as it is violative of fundamental right
guaranteed under Article 30(1) of Constitution - Consequently, miscellaneous
applications pending if any shall stand closed. [91],[92], [94],[95]
ORDER
M. Satyanarayana Murthy, J.
1 . All these writ petitions are filed under Article 226 of the Constitution of India, by
various minority educational institutions, challenging G.O.Ms. No. 43 School Education
(PS) Department dated 09.08.2018 issued by the first respondent, bringing amendment
to Rule 12 of G.O.Ms. No. 1 Education (PS.2) Department dated 01.01.1994 in the
matter of making appointments to the staff in private aided and unaided educational
07-12-2024 (Page 1 of 31) www.manupatra.com
CKR ASSOCIATES Advocates and Legal Advisors
institutions as illegal, arbitrary, unconstitutional and violative of Article 14 and 30(1) of
the Constitution of India, as it takes away the rights of managements in making
appointments to teaching and non-teaching staff in the institutions and confers the
same on authorities, and consequently set-aside the same conferring the right to
administer the institutions by the managements and in the appointments of the
institutions.
2 . Since, the question involved in all these writ petitions is identical, except in W.P.
Nos. 45521, 43104 & 30456 of 2018 filed by Sri N. Subba Rao, counsel for the
petitioners, where the petitioners raised an additional ground that, amendment to
G.O.Ms. No. 43 School Education (PS) Department dated 09.08.2018 issued by the first
respondent amending Rule 12 of G.O.Ms. No. 1 Education (PS.2) Department dated
01.01.1994 is not in accordance with the procedure prescribed under Section 99(3) of
A.P. Education Act, since the amendment was not placed before both the houses and
thereby, it is contrary to the provisions and rules under the A.P. Education Act.
Therefore, the allegations made in W.P. No. 28952 of 2018 are taken into consideration,
which are more comprehensive as leading petition, besides the allegation with regard to
violation of procedure in bringing the amendment raised in W.P. Nos. 45521, 43104 &
30456 of 2018 filed by Sri N. Subba Rao, counsel for the petitioners.
3. In all these writ petitions, the petitioners are educational institutions are recognized
by the Government of Andhra Pradesh and partly aided and has been catering to the
educational needs of State for the last many decades, working specially among the
minorities and downtrodden communities of the society, maintaining high standards of
education and achieving 100% results in public examinations. These institutions are
governed by the provisions of A.P. Education Act and the rules framed thereunder from
time to time. All the petitioners/educational institutions are recognized as minority
institutions. It is stated that, A.P. Education Act came into force in the year 1982 as per
the provision of Section 99 of the A.P. Education Act; Government reserved the powers
to make rules for carrying out the purpose of the Act and sub-section (xi); the Rules
were to be made for establishment, maintenance and administration of the educational
institutions. However, the rules so framed invoking the powers under Section 99 cannot
be inconsistent with the provisions of the Education Act and Article 30(1) of the
Constitution of India. It is submitted that, in the year 1993, the Government issued
comprehensive rules for the administration of private educational institutions vide
G.O.Ms. No. 1 Education (PS.2) Department dated 01.01.1994 known as Andhra
Pradesh Educational Institutions (Establishment Recognition, Administration and Control
of Schools under Private Managements) Rules, 1993 (for short 'Rules').
4. Rule 12 of the above mentioned Rules deals with appointment of staff, while Rule 13
deals with constitution of Staff Selection Committee. Through the impugned G.O. the
first respondent has omitted Section 13 while drastically amending the provisions of
Rule 12 in relation to the appointment of staff in private minority educational
institutions.
5. The petitioners being minority educational institutions, are managing the institutions,
including recruitment of teaching and non-teaching staff for the institutions following
the procedure i.e. by issuing notifications, calling for applications in two newspapers
after obtaining clearance certificate from the competent authority that there are no
surplus posts in the district and Staff Selection Committee is to be constituted under
Rule 13 having the nominee of the competent authority and taking the assistance of
subject experts, following roaster and reservations for SCs/STs. However, as per sub-
rule (7), the Educational Agency shall be free to make appointments of employees into
the unaided posts. After the appointments were made by the management for either the
aided or unaided posts, the educational agency shall obtain the ratification from the
competent authority. Further the management was free to make appointments of the
staff on temporary basis without reference either to the prior approval or subsequent
ratification of the competent authority. The petitioners are strictly adhering to Rule 12
and making appointments in the institutions, as it was left with the management and it
will only by nominating a person to oversee the selection process by State and the
selection is subject to approval by the competent authority.
6. As per the provisions of the A.P. Education Act, appointments shall be made by the
Educational Agency and when the appointment was made following the rules, grant-in-
aid is to be released by the Government in respect of such appointments, either for
teaching or non-teaching staff.
7 . It is submitted that the right of the managements of a Minority Educational
Institution would flow from the constitutional provisions under Article 30(1). The right
to make appointments, deal with the appointed staff, selecting a candidate of their
choice for appointment, is under the exclusive domain of the management. The
educational authorities cannot interfere with such a prerogative except in the event that
the staff so appointed does not posses the qualifications to hold the post or such
appointment is for bidden under the law of the land. If any enactment or rules
empowering the administration are taking away the right guaranteed to the management
of a minority institution, it would be unconstitutional and therefore the same is liable to
be struck down.
8 . It is submitted that the Apex Court upheld the exclusive rights of minority
educational institutions, under the protective umbrella of Article 30(1). Therefore, the
Rules framed by the Government would take away the right of the institutions and
would amount to infringing the right of minority educational institutions guaranteed
under Article 30(1) and when the rule is inconsistent with the constitution, the same is
liable to be struck down.
9. As per amended Rule 12 of the Rules, the right to administer the institution through
making appointments to the staff by the management is totally abridged. The core
provisions of the A.P. Education Act upheld the rights of the management to administer
the institution and it has conferred the rights on the authorities only to check the
mismanagement and take remedial measures. It never envisaged that the power
conferred on the management be usurped by the competent authority. But, Rule 12 is
amended contrary to the spirit of Article 30(1), which will be discussed later.
10. It is submitted that, from the amended provisions, it is clear that the rights of the
managements from making appointments is taken away and conferred on the
Commissioner of School Education as per the schedule fixed by him. No doubt, the
intention is to bring Excellency is educational standards by selecting more qualified into
the institutions, cannot be found fault with and the same can be insisted from the
management and as could be seen that as per the existing policy, entire selection
process is done in the presence of the nominee of the competent authority and the
selection that is made is also subject to approval. In such an event, any prescription
that can be made to bring Excellency in educational standards cannot go to the extent of
abridging the rights of the minority managements in making appointments into their
institutions, since such a right accrues to them under the provisions of Article 30(1) of
the Constitution. Therefore, amendment to Rule 12 of the Rules which is brought under
the impugned G.O. is contrary to the purport of Article 30(1) of the Constitution of

India. In an identical situation, High Court of Judicature at Hyderabad in Modern High
School, Zamisthanpur, Musheerabad, Hyderabad v. Government of Andhra Pradesh
MANU/AP/0748/2001 : 2002 (5) ALT 96 (D.B.) dealt exhaustively when Rule 12 was
sought to be amended earlier to take away the rights of private managements in making
appointments vide G.O.Ms. No. 76 dated 02.11.1999, wherein the Division Bench struck
down the same as being unconstitutional. Despite striking the G.O., the first respondent
again repeated the same mistake, hence, the impugned G.O. is liable to be struck down,
and prayed to allow the writ petitions.
11. The first respondent filed detailed counter on behalf of the Education Department,
denying the material allegations, while admitting about amendment to Rule 12 by
issuing G.O.Ms. No. 43 School Education (PS) Department dated 09.08.2018 and
omitting Rule 13.
12. The specific contention of the respondent is that, Education is a state subject under
Entry 25 list and as per the provisions of the A.P. Education Act, 1982 (as amended by
Act 27 of 1982) under Section 78, Government has no power to make rules to regulate
the methods of recruitment and also to continue any officer or teacher into an
educational service and also empowered to make rules without prejudice to the
generality of foregoing power. Accordingly, the State Government has prescribed
method of recruitment, conditions of services. However, Rule 12 of G.O.Ms. No. 1
Education (PS.2) Department dated 01.01.1994 is not silent on selection process of
teaching and non-teaching staff, as envisaged in Rule 12(1), (2) and (3) of the Rules.
Hence, under Article 21-A of the Constitution of India, the State is under a
constitutional obligation and according to it, the State shall provide free and
compulsory education to all the children of the age 6 to 14 years, in such manner as the
state may by law determine. Further, Article 45 of the Constitution of India declares that
the state shall endeavour to provide early childhood, care and education to all the
children until they complete the age of 6 years. Further, the Right of Children to Free
and Compulsory Education Act, 2009, also mandates giving compulsory education upto
the age of 14 years to give compulsory education. The said Acts mandates that the
government shall provide and ensure good quality elementary education. Section 26 of
the Right to Education Act, 2009, mandates that schools established, owned, controlled
are substantially financed from the funds provided by the government and shall ensure
that vacancy of the teachers in the school shall not exceed 10% of the total sanctioned
strength.
13. It is contended that, after disposal of various writ petitions/writ appeals before the
High Court and SLPs before the Supreme Court, Government issued Memo No.
18836/PS/A2/2010-34 dated 30.06.2017 according permission to the private
institutions/managements for filling up the aided posts. As such, private managements
without adhering to the Rules in vogue and in utter violation of the Rules, absorbed
certain teachers, non-teaching staff by back door methods, which resulted in unhealthy
practice in the private aided schools. However, it is urged that amendment to Rule 12
by G.O.Ms. No. 43 School Education (PS) Department dated 09.08.2018 is only to
regulate the recruitment in private educational institutions, but not to take away the
power of the minority educational institutions to recruit teaching and non-teaching staff
or to take away the management and administration of the minority institutions which is
a fundamental right guaranteed under Article 30(1) of the Constitution of India. Further,
it is contended that, the Government amended Rule 12 only to regulate the procedure
and to bring meritorious qualified teachers into the minority educational institutions to
impart good qualitative education to the teachers. It is further contended that, the
government is only appointing teachers, whereas, the overall control of the
management, administration, disciplinary action on the teachers still vest with the
minority institution. The State Government wanted to ensure uniform standards in
teachers throughout the states. Therefore, there is reasonable nexus to the object
sought to be achieved i.e. only to ensure that proper teachers are selected in the
interest of the students and this cannot be said to be interference with the management
of the minority institutions. If, highly qualified teachers are selected, learning capacity
of the children will be increased on account of selecting the best teachers among the
candidates appearing for the posts. Therefore, amendment to Rule 12 cannot be said to
be interference with the management or administration of the minority educational
institutions.
14. It is further contended that, as per amended Rule 12, the Government issued state
wide notifications for appointment of teachers, which includes teachers belonging to
minority community also and this will ensure timely filling up of the vacancies and there
will be uniformity throughout the State. This step will address major malpractice i.e.
after lifting of ban, respondents have received several complaints stating that
appointment or promotion of teachers was taken up by backdoor method wherein the
teachers are not up to the mark. This being a serious problem, prompted the
Government to take care of the selection process by amending Rule 12 and that the
proposed amendment to Rule 12 is rational, legal and constitutional. Therefore, the
same cannot be said to be violative of Article 30(1) of the Constitution of India.
15. While denying the contentions of the petitioners/minority educational institutions
that amendment to Rule 12 vide G.O.Ms. No. 43 School Education (PS) Department
dated 09.08.2018 abrogated the rights of the minority educational institutions, it is
strongly contended that by issuing G.O. it is made clear that the present existing merit
roaster based recruitment system shall continue. It is further declared that the same is
not applicable to minority educational institutions, if they are selecting candidate
belonging to the concerned minority community and that by issuing G.O., the rights of
minority educational institutions were infringed and it is in violation of Article 30(1) of
the Constitution of India.
16. It is specifically contended that the petitioners failed to give details of declaration
of minority educational institutions, and just because, they named the institutions as
minority educational institutions, one cannot confer the privileges, immunities available
to the minority institutions. It is pleaded that before they claim rights, the immunities
under the garb of minority institutions, such institutions are obligated to produce
certificate issued by the concerned authorities, thereby, the petitioners are not entitled
to claim any relief in these writ petitions.
1 7 . Further, though Rule 12 is amended, the procedure is limited or confined to
recruitment of teachers for better achievements by the minority institutions and it will
not take away the management, administration and control over the educational
institutions and it was never the intention of the State Government, thereby, the
apprehension of these petitioners/minority educational institutions is without any basis.
The respondents further contended that the State issued G.O.Ms. No. 1 Minorities
Welfare (M&R) Department dated 16.01.2004 framing certain guidelines for issuing
Minority Status Certificate for making admissions and appointments in Minority
Educational Institutions. As per Guideline No. 1(5), the educational institutions
established and managed by the minorities shall serve the educational needs of their
community to which they claim by filling up not less than 70% of seats being filled up
by the Managements as per the rules governing admission into various colleges with the
candidates belonging to the respective minority community. This Court called for report
from the education department as to such educational institutions which is tabulated as
under:

1 8 . It is also brought to the notice of this Court that minority students were not
admitted in the petitioners/educational institutions in W.P. Nos. 28912, 29026 and
28924 of 2018, according to the governing rules, as such, they are not entitled to claim
Minority Status. Therefore, the petitioners in the above three writ petitions are not
minority institutions and no certificate was issued to them. It is further contended that,
as per the guidelines in G.O.Ms. No. 1 Minorities Welfare (M&R) Department dated
16.01.2004, the minority status certificate issued by the competent authority shall be in
force for a period of three years from the date of issuance and thereafter, it shall be
renewed prior to its expiry period, by making application three months in advance. But,
no such certificate was obtained by most of the writ petitioners and as such, they
cannot claim the minority status, unless the institution has been issued certificate by the
competent authority and consequently, none of the petitioners are entitled to claim such
status, as they failed to produce minority status certificate.
19. The respondents denied the contention of the petitioners that the right of minority
institutions to fill the posts of the persons belonging to their choice and that profess
their religion is taken away. It is strongly contended by the respondents that, it is left
open for the minority educational institutions to appoint competent persons to teach
their religion. But, none of the petitioners filed any affidavit along with the writ
petitions to prove that they are enjoying the minority status by virtue of declaration by
the competent authority. In the absence of any declaration by the competent authority
with regard to minority status, the petitioners cannot automatically claim minority
status. Therefore, it is contended that, the amendment violates Article 30(1) of the
Constitution of India is not true, as the petitioners failed to establish that those
institutions were declared as minority institutions after issuing certificate of minority
status as per G.O.Ms. No. 1 Minorities Welfare (M&R) Department dated 16.01.2004 and
on this ground alone, the petitioners are disentitled to claim any relief in the present
petitions.
20. It is further contended that, amendment to Rule 12 is strictly in accordance with
law and it will not take away the rights of the minority educational institutions, subject
to proof by the petitioners and therefore, no relief can be granted to these petitioners
and prayed for dismissal of the writ petitions.
21. The contention of the learned counsel for the petitioners in all the writ petitions is
one and the same, except in W.P. Nos. 45521, 43104 & 30456 of 2018 filed by Sri N.
Subba Rao, counsel for the petitioners, to the extent of issuing G.O. without following
due procedure under A.P. Education Act and Rules framed thereunder. Therefore, to
avoid repetition of the contentions, we find that it is appropriate to advert to the
contentions as a whole.
22. The gist of contentions raised before this Court are that, the petitioners/minority
educational institutions are entitled to administer and manage the affairs of these
institutions, as these institutions were established solely with the object to provide
good education to the children, more particularly, to the linguistic or religious
minorities in the state. Unless they are allowed to manage and administer the

institutions appointing the staff, including teaching and non-teaching staff in the
institutions, it will drastically effect the standards being maintained in the educational
institutions established by the minorities. Initially, all the petitioners have established
their educational institutions and they were given minority status in terms of G.O.Ms.
No. 1 Education (PS.2) Department dated 01.01.1994 and G.O.Ms. No. 40 School
Education (PS) Department dated 30.06.2017 framing Andhra Pradesh Educational
Institutions (Establishment, Recognition, Administration and Control of Schools under
Private Management) Rules, 1993 and they were continued as such. The minority
educational institutions were permitted to appoint both teaching and non-teaching staff
vide G.O.Ms. No. 1 Education (PS.2) Department dated 01.01.1994. The said G.O. was
published in the A.P. Gazette on 03.01.1994. Rules 12 and 13 are relevant for the
present, which deals with power of the minority institutions to appoint both teaching
and non-teaching staff of their choice by following necessary procedure.
2 3 . While the matter stood thus, the Commissioner of School Education, A.P.,
Ibrahimpatnam addressed letter Rc. No. 90/PS-1/2015 dated 24.08.2017 to the first
respondent and in view of the said letter, Rule 12 of the Rules under G.O.Ms. No. 1
Education (PS.2) Department dated 01.01.1994, as amended by G.O.Ms. No. 40 School
Education (PS) Department dated 30.06.2017 is again amended, taking away the
powers of the minority educational institutions to administer and manage the
educational institutions for appointing the teaching and non-teaching staff as per the
procedure and usurped the power of the institution itself and omitted Rule 13 of the
Rules, which indirectly takes away the power of the minority educational institutions
which is nothing but interference with the right of minority educational institutions to
administer and manage them by religious and linguistic minorities in terms of Article
30(1) and such interference is prohibited, as it is violative of Article 30(1) of the
Constitution of India. Learned counsel for the petitioners placed reliance on umpteen
number of judgments in support of their contentions which will be referred at the
appropriate stage.
24. Learned counsel for the petitioners further contended that the State can regulate the
administration by imposing reasonable restrictions on administration and management
of minority educational institutions, but, they cannot usurp the power by taking to
appoint both teaching and non-teaching staff. That would cause much prejudice to the
quality of education being imparted to the students who are prosecuting studies in their
institutions, as such G.O.Ms. No. 43 School Education (PS) Department dated
09.08.2018 is illegal and violative of Article 30 of the Constitution of India, as it
amounts to interference of State with the administration and management of minority
educational institutions established by both linguistic and religious minorities, whose
rights are protected under Article 30 of the Constitution of India.
25. Sri N. Subba Rao, learned counsel for the petitioners in W.P. Nos. 45521, 43104 &
30456 of 2018 further raised a specific plea that, G.O.Ms. No. 43 School Education (PS)
Department dated 09.08.2018 was not passed in strict adherence to Section 99(3) of
A.P. Education Act. When the Assembly was not in session, passing of such G.O. and
amending the rules is a serious illegality and therefore, the very procedure adopted by
the State Government for amendment of the rules is a serious illegality and contrary to
the procedure prescribed under the Rules. It is contended that, on this ground alone,
G.O.Ms. No. 43 School Education (PS) Department dated 09.08.2018 has to be struck
down as unconstitutional and contrary to the rules for amendment of the provisions of
A.P. Education Act.
2 6 . Whereas, learned Government Pleader for Education vehemently contended that
these petitioners are not minority educational institutions and merely because their
institutions are named with minorities, they are claiming to be minority educational
institutions, and they are not entitled protection under Article 30 of the Constitution of
India, unless, they establish that these institutions were recognized as minority
educational institutions in terms of procedure prescribed under G.O.Ms. No. 1 Education
(PS.2) Department dated 01.01.1994 and obtained a certificate of renewal from time to
time. In the absence of such recognition and renewal of it, once every three years, as
contemplated under G.O.Ms. No. 1 Education (PS.2) Department dated 01.01.1994, the
petitioners are disentitled to claim protection under Article 30 of the Constitution of
India.
27. Learned counsel further contended that, the educational institutions being run by
the petitioners are not satisfying the rules for recognizing the institutions and furnished
information as to the students belonging to different categories prescribing status in the
institution and on the strength of the information, it is contended that none of the
institutions acquired the status of minority institutions to claim benefit under Article 30
of the Constitution of India. On this ground alone, learned counsel for the respondents
sought for dismissal of the writ petitions.
28. It is also further contended that, the State can impose reasonable restrictions on
the power of the educational institutions to regulate the appointment and to achieve
Excellency in education. The steps taken by the State amending Rule 12 and omitting
Rule 13 of the Rules by G.O.Ms. No. 43 School Education (PS) Department dated
09.08.2018 is nothing but to achieve the real objective i.e. to provide good education to
the students prosecuting studies in the petitioners-educational institutions and to select
highly qualified and meritorious candidates as teachers. Since the restriction is only in
the nature of reasonable restriction, G.O.Ms. No. 43 School Education (PS) Department
dated 09.08.2018 cannot be scrapped or annulled by exercising power under Article 226
of the Constitution of India and thereby, the petitioners are not entitled to claim any
relief on any of the grounds and prayed to dismiss the writ petitions.
29. Considering rival contentions, perusing the material available on record, the points
that arise for consideration are as follows:
(1) Whether G.O.Ms. No. 43 School Education (PS) Department dated
09.08.2018 amending Rule 12 and omitting Rule 13 of the Andhra Pradesh
Educational Institutions (Establishment, Recognition, Administration and
Control of Schools under Private Management) Rules, 1993, is in accordance
with the procedure prescribed under Section 99(3) of the A.P. Education Act
and the rules framed therein?
(2) Whether G.O.Ms. No. 43 School Education (PS) Department dated
09.08.2018 is in consonance of the spirit of Article 30(1) of the Constitution of
India. If not, whether G.O.Ms. No. 43 School Education (PS) Department dated
09.08.2018 is liable to be declared as unconstitutional?
(3) Whether the petitioners are minority educational institutions established by
linguistic or religious minorities and obtained recognition under the rules
referred above. If not, whether they are entitled to claim protection under
Article 30 of the Constitution of India?
POINT No. 1:
30. Sri N. Subba Rao, Learned counsel for the petitioners in W.P. Nos. 45521, 43104 &
30456 of 2018 stated that the State amended Rule 12, while omitting Rule 13 of the
Rules and the procedure to be followed by the State after amendment of the rules
framed thereunder. It is the specific contention of the petitioners that, such power has
to be exercised to frame rules under any enactment of Sections 78 and 99 of A.P.
Education Act. The rule making power under the proviso to Article 309 of the
Constitution of India is not available to the State and non-compliance of the procedural
requirements under Section 99(3) of the Andhra Pradesh Education Act would render
the rules of 2018 vide G.O.Ms. No. 43 School Education (PS) Department dated
09.08.2018 illegal and liable to be struck down.
31. The 2018 Rules are notified by G.O.Ms. No. 43 School Education (PS) Department
dated 09.08.2018 and the power to issue such G.O., amending the rules is conferred
under Sections 78 and 99 of the A.P. Education Act, besides the proviso to Article 309
of the Constitution of India.
32. Section 78 of the A.P. Education Act deals with Constitution of Educational Service
and according to it, (1) Notwithstanding anything in this Act or the rules made
hereunder, the Government may, by notification, constitute any officer or class of
officers or any teacher or class of teachers appointed or deemed to be appointed under
the Andhra Pradesh Education Act. "Notification" means a notification published in the
State Gazette and the word 'notified' shall be construed accordingly.
33. Section 99 of the A.P. Education Act deals with power of government to make rules
and Clause (I)(a) says that the Government may by notification make rules to carry out
all or any of the purposes of the A.P. Education Act.
34. Section 99(3) of the A.P. Education Act requires every notification issued and every
rule made under the A.P. Education Act, shall immediately after it is issued or made, be
laid before each House of the State Legislature if it is in session and if it is not in
session in the session immediately following for a total period of fourteen days which
may be comprised in one session or in two successive sessions and if, before the
expiration of the session in which it is so laid or the session immediately following both
Houses agree in making any modification in the notification or in the rule, or in the
annulment of the notification or the rule, the notification or the rule shall, from the date
on which the modification or annulment is notified, have effect only in such modified
form or shall stand annulled, as the case may be; so however that any such
modification or annulment shall be without prejudice to the validity of anything
previously done under that notification or rule.
35. Section 99(3) of the A.P. Education Act requires every Rule made under the A.P.
Education Act, immediately after it is made, to be laid before each House of the State
Legislature if it is in Session, and, if it is not in Session, in the Session immediately
following, for a total period of 14 days which may be comprised in one Session or in
two successive Sessions; and if, before expiration of the Session in which it is so laid,
or the Session immediately following, both Houses agree in making any modification in
the Rule, or in the annulment of the Rule, the Rule shall, from the date on which the
modification or annulment is notified, have effect only in such modified form or shall
stand annulled, as the case may be; however, any such modification or annulment, shall
be without prejudice to the validity of anything previously done under that Rule.
36. Section 99(3) is applicable to the 2018 Rules also and, as a result, these Rules
should, immediately after it is issued, be laid before each House of the State Legislature
if it is in Session. The earlier session of the Andhra Pradesh State Legislature concluded

when the House was adjourned sine-die. Thereafter no session of the Andhra Pradesh
State Legislature has been convened so far. The 2018 Rules were made and notified in
G.O.Ms. No. 43 on 09.08.2018, and was published in the Andhra Pradesh State Gazette.
After the Rules were made on 06.06.2018, no Session of either House of the Andhra
Pradesh State Legislature has been convened till date. As the State Legislature is not in
Session, the requirement of Section 99(3) of the A.P. Education Act, for the rules to be
laid before each House of the State Legislature, is incapable of compliance till the next
Session of each House of the Andhra Pradesh State Legislature is convened.
37. As is evident, from Section 99(1)(a) of the A.P. Education Act, the Rules made
thereunder would come into force from the date of its publication in the State Gazette.
Since the 2018 Rules were published in the Andhra Pradesh State Gazette, they came
into force on the same day. The Rules are valid from the date on which they are made.
Non-compliance with the laying clause, in Section 99(3) of the A.P. Education Act, does
not affect the validity of the Rule or make it void, as it cannot be regarded as
mandatory. (K.T. Plantation (P) Ltd. v. State of Karnataka MANU/SC/0914/2011 :
(2011) 9 SCC 1 : (2011) 4 SCC (Civ.) 414 : 2012 (2) ALT 26.3 (DN SC)). When a
statute requires the Rules to be placed before the State Legislature, it is the obligation
of the State to place the same before the House at the earliest. However, the omission
to comply with it would not affect the validity of the Rules and their coming into force.
(K.T. Plantation (P) Ltd. MANU/SC/0914/2011 : (2011) 9 SCC 1 : (2011) 4 SCC (Civ.)
414 : 2012 (2) ALT 26.3 (DN SC)) (supra); Quarry Owners' Assn. v. State of Bihar
MANU/SC/0504/2000 : (2000) 8 SCC 655). The legislature never intended that non-
compliance with the requirement of laying, as envisaged by Section 99(3), should
render the Rules void. Consequently non-laying of the Rules before the House, or both
Houses of the Legislature, cannot result in nullification of the Rules. (Atlas Cycle
Industries Ltd. v. State of Haryana MANU/SC/0559/1971 : AIR 1972 SC 121; Craies on
Statute Law; Jan Mohammad Noor Mohammad Bagban v. State of Gujarat
MANU/SC/0053/1965 : AIR 1966 SC 385; Narendra Kumar v. Union of India
MANU/SC/0013/1959 : AIR 1960 SC 430). The answer to the question, whether laying
of the Rules before the Legislature is mandatory or directory, or whether laying is a
condition precedent to their operation, or can be neglected without prejudice to the
effect of the Rules, would depend on the facts and circumstances of each case, or the
wording of the Statute under which the Rules are made. (State of M.P. v. S.K. Dubey
MANU/AP/0426/2012 : (2012) 4 SCC 578 : 2012 (5) ALT 38.4 (DN SC)).
3 8 . Craies on Statute Law refers to three kinds of laying--(i) laying without further
procedure; (ii) laying subject to negative resolution; and (iii) laying subject to
affirmative resolution. The laying referred to in sub-section (3) of Section 99 is of the
second category because it contemplates that the Rule would have effect unless
modified or annulled by the House of legislature. (Hukam Chand v. Union of India
MANU/SC/0506/1972 : (1972) 2 SCC 601; S.K. Dubey MANU/AP/0426/2012 : (2012) 4
SCC 578 : 2012 (5) ALT 38.4 (DN SC)) (supra)). Even if Section 99(3), by reason of
the failure to place the Rules before the Legislature, is presumed to have been violated,
the said provision, having regard to the purposes for which it is made, and in the
context in which it occurs, cannot be regarded as mandatory. (Jan Mohammed Noor
Mohammed Bagban MANU/SC/0053/1965 : AIR 1966 SC 385 (supra)). The laying of the
Rules before the legislature, under Section 99(3), is merely directory, and not
mandatory. Even if the Rules are not laid before the House at all, even then non-
compliance with the requirement of laying the Rules before the legislature, would not be
a ground to declare the Rules, framed under the Statute, ultra vires and invalid. (Veneet
Agrawal v. Union of India MANU/SC/8083/2007 : (2007) 13 SCC 116; Jan Mohammad
Noor Mohammad Bagban MANU/SC/0053/1965 : AIR 1966 SC 385 (supra); Atlas Cycle
Industries Ltd. MANU/SC/0559/1971 : AIR 1972 SC 121 (supra); Hukam Chand
MANU/SC/0506/1972 : (1972) 2 SCC 601 (supra); Bank of India v. O.P. Swarnakar
MANU/SC/1179/2002 : (2003) 2 SCC 721; and Prohibition & Excise Suptd., A.P. v.
Toddy Tappers Co-op. Society MANU/SC/0942/2003 : (2003) 12 SCC 738). Where a
statutory provision is directory, Courts would not interfere to compel the performance
or punish breach of the duty created by such provision, and disobedience of such a
provision would not entail any invalidity (Craies on Statute Law, Seventh Edn., at p.
229; Tulsiram Patel).
39. The same set of facts came up for consideration before the High Court of Judicature
at Hyderabad for the State of Telangana and State of Andhra Pradesh in Chidurala
Sudakar v. The State of Telangana MANU/AP/0320/2018 : 2018 (4) ALT 570, wherein,
the Division Bench of the Court laid down the above principles. The difference is only
the notifications issued by two different State Governments, in identical circumstances.
4 0 . The law laid down by the common High Court i.e. High Court of Judicature at
Hyderabad for the State of Telangana and State of Andhra Pradesh is a binding
precedent on High Court of Andhra Pradesh, after its division from High Court of
Judicature at Hyderabad for the State of Telangana and State of Andhra Pradesh. A
similar issue came up before this Court in M. Subbarayudu v. The State
MANU/AP/0058/1955 : 1955 ALT (Crl.) 53 : 1955 An.W.R. 150 : AIR 1955 A.P. 87,
wherein it was held that the law declared by the Madras High Court prior to its division
leading to formation of Andhra Pradesh High Court is a binding precedent on the High
Court of Andhra Pradesh after its division in 1954. In view of the law laid down by the
Division Bench of High Court of Judicature at Hyderabad for the State of Telangana and
State of Andhra Pradesh and by applying the principles laid down by the High Court
regarding the binding nature of the precedent laid down by the parent High Court, the
issue before this Court is no more res integra and consequently, the contention of Sri N.
Subba Rao, learned counsel for the petitioners in W.P. Nos. 45521, 43104 & 30456 of
2018 that the procedure contemplated under Section 99(3) of the Rules were framed in
utter disregard of the procedure contemplated under Section 99(3) of the A.P. Education
Act is without any substance and it needs no further consideration. On this ground, the
rule amended by G.O.Ms. No. 43 School Education (PS) Department dated 09.08.2018
cannot be annulled or set-aside.
41. As the issue is covered by the judgment of the Division Bench of Common High
Court, we are in total agreement with the law declared in the above judgment and by
applying the same, we hold that, the deviation from procedure contemplated under
Section 99(3) of the Andhra Pradesh Education Act would not render the law made by
the State or its instrumentalities vide G.O.Ms. No. 43 School Education (PS) Department
dated 09.08.2018, amending Rule 12 and omitting Rule 13 of the Rules is invalid.
Therefore, on account of noncompliance of procedure, G.O.Ms. No. 43 School Education
(PS) Department dated 09.08.2018 cannot be set-aside. Accordingly, the point is
answered against the petitioners in W.P. Nos. 45521, 43104 & 30456 of 2018 filed by
Sri N. Subba Rao, learned counsel for the petitioners and in favour of the respondents.
POINT No. 2:
42. The petitioners who are claiming to be minority educational institutions filed these
petitions challenging G.O.Ms. No. 43 School Education (PS) Department dated
09.08.2018, whereby, Rule 12 is amended and Rule 13 is omitted from the Rules.
43. By virtue of Section 99 of the Andhra Pradesh Education Act, the State Government

framed Rules under G.O.Ms. No. 1 Education (PS.2) Department dated 01.01.1994,
known as Andhra Pradesh Educational Institutions (Establishment, Recognition,
Administration and Control of Schools under Private Management) Rules, 1993. The
Rules provides various procedures for establishment, recognition of minority institutions
and its administration including appointment of teaching and non-teaching staff. But,
for the present, Rule 12 and Rule 13 of the Rules are relevant for consideration of this
Court, as Rule 12 was amended and Rule 13 was omitted by G.O.Ms. No. 43 School
Education (PS) Department dated 09.08.2018 are challenged before this Court.
44. The difference between original Rule and the amended/omitted Rule is tabulated as
follows:

4 5 . A bare perusal of G.O.Ms. No. 43 School Education (PS) Department dated
09.08.2018 show that the minority educational institutions have to maintain merit-cum-
roster based recruitment system as is existing be continued and each school has to
maintain the roster system. The vacancies shall be filed up according to the roster
system. Similarly, Regional Joint Director of School Education/District Educational
Officer has to confirm that there are no surplus teachers/posts in the district and submit
the school-wise posts, required to be filled up in respective unit/school, by way of
direct recruitment to the Commissioner of School Education. The Commissioner of
School Education, shall issue notification for filling up of posts for all aided schools of
the State duly informing Government. Out of the total posts to be filled in the district,
80% of posts shall be filled with local candidates of the district while remaining 20 %
would be open to all. Rule 12(7)(8) prescribe the selection process for teaching and
non-teaching vacancies and the selection shall be based on a State Level Computer
based/examination and there shall be no interview. An officer, not below the rank of
Additional Director O/o. Commissioner of School Education shall be appointed as a
convenor to conduct A-CRT (Aided common recruitment test) selection process. The
Commissioner of School Education shall nominate a person to look after the entire
recruitment process. But, the procedure under Rule 12 is totally different. So far as
roster constituted is concerned, there is no much controversy.
4 6 . But, as per sub-rule (7) of original Rule 12, G.O.Ms. No. 1 Education (PS2)
Department, dated 01.01.1994, the Educational Agency shall be free to appoint
employee/staff to an un-aided post as per subject requirement, provided they have the
prescribed qualification to hold the posts. As per sub-rule (8) of Rule 12, all
appointments made either teaching or non-teaching staff by aided or un-aided
institutions shall be subject to the approval of the competent authority. For this purpose
the educational agency shall inform the competent authority within one-month from the
date of selection. The Competent Authority shall grant approval, unless, the selection
has been in violation of these rules. In order to obviate confusion, it shall be incumbent
on the educational agency to remind the competent authority, one month after the initial
communication, if no approval is received. Thus, prior to G.O.Ms. No. 43 School
Education (PS) Department dated 09.08.2018, the power to recruit or appoint any
teaching or non-teaching posts in minority educational institution is subject to approval
of competent authority. But, on account of amendment to Rule 12 by G.O.Ms. No. 43
School Education (PS) Department dated 09.08.2018, the power of the minority
educational institutions is totally taken away and vested on an officer, not below the
rank of Additional Director in the office of Commissioner of School Education.
47. Rule 13 is totally omitted, since such power to recruit or appoint teaching or non-
teaching staff is vested with the departmental officials i.e. Additional Director in the
office of Commissioner of School Education.
48. It is the contention of the learned counsel for the petitioners in all the writ petitions
that, on account of amendment to Rule 12 by G.O.Ms. No. 43 School Education (PS)
Department dated 09.08.2018, the power of administration and management on
minority educational institutions which is solely vested on it by virtue of Article 30(1) of
the Constitution of India is totally taken away by the State and it is violative of the
fundamental right guaranteed under Article 30(1) of the Constitution of India.
49. Article 30 of the Constitution of India deals with Right of minorities to establish and
administer educational institutions. As the case is turning around Article 30(1) of the
Constitution of India, it is appropriate to extract the same for better appreciation of the
case and it is as under:
(1) all minorities, whether based on religion or language, shall have the right to
establish and administer educational institutions of their choice.
(1A) In making any law providing for the compulsory acquisition of any
property of an educational institution established and administered by a
minority, referred to in clause (1), the State shall ensure that the amount fixed
by or determined under such law for the acquisition of such property is such as

would not restrict or abrogate the right guaranteed under that clause.
(2) The State shall not, in granting aid to educational institutions, discriminate
against any educational institution on the ground that it is under the
management of a minority, whether based on religion or language.
50. Article 30 of the Constitution of India consists of three sets of clauses viz. Clauses
(1), (1A) and (2). Clause (1) totally deals with rights of minorities to establish and
administer educational institutions of their choice. Clause (1A) deals with acquisition of
property by the Government belonging to any minority educational institution and
Clause (2) deals with grant-in-aid by the Government. Clauses (1A) and (2) of Article
30 of the Constitution of India are irrelevant for deciding the issue in controversy.
51. Article 30(1) is intended to instill confidence in minorities against any executive or
legislative encroachment on their right to establish and administer educational
institution of their choice. Article 30(1) though styled as a right, is more in the nature
of protection for minorities. But for Article 30, an educational institution, even though
based on religion or language, could have been controlled or regulated by law enacted
under Clause (6) of Article 19, and so, Article 30 was enacted as a guarantee to the
minorities that so far as the religious or linguistic minorities are concerned, educational
institutions of their choice will enjoy protection from such legislation. To some extent,
what may be permissible by way of restriction under Article 19(6) may fall foul of
Article 30 of the Constitution. This is the additional protection which Article 30(1)
guaranteed to the minorities.
52. The expression "right to establish and administer" has gained importance, in view
of the real controversy between the parties. The expression has to be interpreted in
harmony with the substance of the right conferred by Article 30(1), while Article 20(1)
gives a cultural or linguistic minority community the right to conserve its language or
culture, Article 30(1) confers religious or linguistic minorities, the right to establish
educational institutions of their own choice, for, it is through the education of the
children that the group culture can be maintained. But the scope and object of Article
30(1) is wider than the mere conservation of the culture, script, etc., which is indicated
by the word 'choice'. The right is to establish institutions which will effectively serve the
needs of the community and the scholars who resort to such institutions. The right
would be nugatory if the scholars of such institutions are debarred from the
opportunities for higher education or for a useful career in life.
5 3 . The words establish' and 'administer' are two different connotations. The word
'establish' means to bring into existence an educational institution, while the word
'administer' would mean the right to manage and conduct the affairs of the institution.
Now, the dispute is with regard to 'administration'. The employment of expressions
'right to establish and administer' an 'educational institution of their choice' in Article
30(1) gives a right which is of very wide amplitude.
54. In view of the meaning 'right to administer' in the contextual perspective, which
includes running an institution, including management. Right to administer is not
absolute, but it must be subject to reasonable regulations for the benefit of the
institutions as the vehicle of education for the minority community, consistent with
national interest. General laws of the land applicable to all persons are applicable to the
minority institutions also. Though, the minority institutions are entitled to enjoy the
right to establish the education of their choice and administer certain limitations are
prescribed on such right to administer.

5 5 . Though Article 30 of the Constitution of India itself does not lay down any
limitations upon the right of a minority to administer its educational institutions, this
right is not absolute, but must be subject to reasonable regulations, for the benefit of
the institution as the vehicle of education for the minority community, consistent with
the national interest, (vide The Ahmedabad St. Xavier College Society and another v.
State of Gujarat MANU/SC/0088/1974 : AIR 1974 SC 1389 and All Saints High School v.
Government of A.P. MANU/SC/0059/1980 : AIR 1980 SC 1042), such as-
(a) to maintain the educational character and standard of such institution e.g.
to lay down qualifications or conditions of service to secure appointment of
good teachers, to ensure interests of students, to maintain a fair standard of
teaching;
(b) to ensure orderly, efficient and sound administration and to prevent
maladministration and to secure its proper functioning as an educational
institution, to ensure that its funds are spent for the betterment of education
and not for extraneous purposes;
(c) to prevent anti-national activity'
(d) to enforce the general laws of the land, applicable to all persons, e.g.,
taxation, sanitation, social welfare, economic regulations, public order,
morality.
(e) To prescribe syllabus, curriculum of study and regulate the appointment of
teachers. (vide Virendra Nath Gupta v. Delhi Administration
MANU/SC/0415/1990 : AIR 1990 SC 1148)
(f) To ensure efficiency and discipline of the institution.
56. Such regulations may be made either by legislation or by executive order, but the
right of the management of such an institution to appoint the Principal of its own choice
cannot be taken away by any rules and regulation. Since the right to 'administer'
confers upon the minority institutions the right to manage the institution, and the right
conferred by Clause (1) is absolute, no 'restriction' can be imposed by the State on the
right of the minority community to manage the institution, (vide St. Xavier's College v.
State of Gujarat referred supra).
57. The whole controversy is with regard to taking away the right to 'Administer' by an
officer in the cadre of Additional Director in the office of the Commissioner of School
Education, as the amended Rule 12 vide G.O.Ms. No. 43 School Education (PS)
Department dated 09.08.2018 takes away the absolute right to administer and manage
the minority educational institutions.
58. Though, Article 30(1) of the Constitution of India echoes that, no restriction can be
imposed in administration, establishment and management of institutions by linguistic
or religious minorities, administration includes appointment of teaching and non-
teaching staff. When such an absolute right is conferred on the minorities, enactment of
such rules by amending Rule 12 and omitting Rule 13 by G.O.Ms. No. 43 School
Education (PS) Department dated 09.08.2018 would amount to interference with the
administration and management of minority educational institutions, since Article 30 of
the Constitution of India has provide an absolute educational protection to the
minorities.

5 9 . The dividing line between how far the regulation would remain within the
constitutional limits and when the regulations would cross the limits and be vulnerable,
is fine, yet perceptible and has been demonstrated in several judicial pronouncements.
Apart from the generalized position of law that right to administer does not include right
to mal-administer, an additional source of power to regulate by enacting condition
accompanying affiliation or recognition exists. Balance has to be struck between the two
objectives:
(i) that of ensuring the standard of excellence of the institution, and (ii) that of
preserving the right of the minority to establish and administer its educational
institution. Subject to reconciliation of the two objectives, any regulation
accompanying affiliation or recognition must satisfy the triple tests:
(i) the test of reasonableness and rationality,
(ii) the test that the regulation would be conducive to making the
institution an effective vehicle of education for the minority community
or other persons who resort to it, and
(iii) that there is no in-road on the protection conferred by Article
30(1) of the Constitution, that is, by framing the regulation the
essential character of the institution being a minority educational
institution, is not taken away.
(vide P.A. Inamdar and others v. State of Maharashtra
MANU/AP/0465/2005 : 2005 (5) ALT 1 (SC) : (2005) 6 SCC 537)
6 0 . To what extent, the State can regulate the administration and what is the
permissible limit to interfere with the administration and management of minority
educational institutions is again a question. An identical question came up for
consideration before the Supreme Court in The Secretary, Malankara Syrian Catholic
College v. T. Jose and others MANU/SC/5280/2006 : AIR 2007 SC 570 : 2007 (5) ALT
2.4 (DN SC). The Apex Court while dealing with the extent of regulation by the State,
permissible in respect of employees of minority educational institutions receiving aid
from the State, laid down the following guidelines:
(i) the minimum qualifications, experience and other criteria bearing on merit,
for making appointments,
(ii) the service conditions of employees without interfering with the overall
administrative control by the Management over the staff.
(iii) a mechanism for redressal of the grievances of the employees.
(iv) the conditions for the proper utilisation of the aid by the educational
institutions, without abridging or diluting the right to establish and administer
educational institutions.
61. In view of the principles laid down by the Apex Court, the power of the State to
regulate the administration is limited and, recruitment and appointments are not
included in the guidelines issued by the Apex Court in The Secretary, Malankara Syrian
catholic College v. T. Jose and others (referred supra).
62. When any regulation is issued, if they are likely to violate the right guaranteed
under Article 30(1) of the Constitution of India, such regulation or rule which abrogates
the power of minority educational institutions is ultra-vires. Similarly, while dealing
with the extent of interference of framing regulation of the State, the Division Bench of
the Apex Court in St. John's Teacher Training Institute (for Women), Madurai and others
v. State of Tamil Nadu and others MANU/SC/0017/1994 : AIR 1994 SC 43 summarized
the broad principles which is as follows:
(i) The fundamental right declared by Article 30(1) of the Constitution is
absolute in terms, but subject to regulatory measures;
(ii) There is no fundamental right under Article 19(1)(g) of the Constitution to
establish or administer an educational institution, if recognition is sought
therefor;
(iii) The institutions must be educational institutions of the minorities in truth
and reality and not mere masked phantoms;
(iv) There is no fundamental right to recognition and any institution seeking
recognition should abide by the regulations prescribed by the State as
conditions therefor;
(v) The minority institutions must be fully equipped with educational excellence
to keep in step with other institutions in the State;
(vi) The regulations framed by the State cannot abridge the fundamental right
of the minorities and they should be in the interests of the minority institutions
themselves and not based on State necessity or general societal necessities;
(vii) The regulations should be with a view to promoting excellence of
educational standards and ensuring security of the services of teachers and
other employees of the institutions and in the true interests of efficiency of
institutions, discipline, health, sanitation, morality, public order and the like;
(viii) Even unaided institutions are not immune from the operations of general
laws of the land such as Contract Law, Tax measures, Economic Laws, Social
Welfare Legislations Labour and Industrial Laws and similar other laws which
are intended to meet the need of the Society;
6 3 . Learned counsel for the petitioners in all the writ petitions contended that,
amending Rule 12 and omitting Rule 13 by G.O.Ms. No. 43 School Education (PS)
Department dated 09.08.2018 is nothing but direct interference with the administration
and management of educational institutions, since, the rule takes away the power of the
management to recruit and appoint teaching and non-teaching staff. Learned counsel for
the petitioners, in support of their contentions, placed reliance on the judgments of the
Supreme Court in In re The Kerala Education Bill, 1957, Special Reference No. 1 of
1958 MANU/SC/0029/1958 : AIR 1958 SC 956 (V 45 C 136), Rev. Father W. Proost and
others v. The State of Bihar and others MANU/SC/0248/1968 : AIR 1969 SC 465 (V 56
C 90), The Ahmedabad St. Xavier College Society and another v. State of Gujarat
MANU/SC/0088/1974 : AIR 1974 SC 1389 (referred supra), All Saints High School v.
Government of A.P. MANU/SC/0059/1980 : AIR 1980 SC 1042) (referred supra), The
Secretary, Malankara Syrian catholic College v. T. Jose and others MANU/SC/5280/2006
: AIR 2007 SC 570 : 2007 (5) ALT 2.4 (DN SC) (referred supra), IVY C. Da Conceicao v.
State of Goa and others MANU/SC/0103/2017 : (2017) 3 SCC 619 : 2017 (2) ALT 17
(DN SC)., Manager, Corporate Educational Agency v. James Mathew
MANU/SC/0949/2017 : (2017) 15 SCC 595, N. Ammad v. Manager, Emjay High School
and others MANU/SC/0588/1998 : (1998) 6 SCC 674 and judgment of High Court of
Judicature at Hyderabad in Modern High School, Zamisthanpur, Musheerabad,
Hyderabad v. Government of Andhra Pradesh MANU/AP/0748/2001 : 2002 (5) ALT 96
(D.B.) (referred supra).
6 4 . In re The Kerala Education Bill, 1957, Special Reference No. 1 of 1958
MANU/SC/0029/1958 : AIR 1958 SC 956 (V 45 C 136) (referred supra), several
questions came up for consideration before the Larger Bench of the Supreme Court. But,
the main dispute before the Constitutional Bench was, as to extent to which the
Government can interfere with admissions in minority educational institutions. The
judgment did not directly deal with the issue of interference with appointments and
recruitment. However, the consistent view expressed by the Constitutional Bench
consisting of Eleven Judges is that, the State can interfere with administration only to
regulate admissions and service conditions of employees.
65. Earlier to the Special Reference, the Apex Court in Rev. Father W. Proost and others
v. The State of Bihar and others MANU/SC/0248/1968 : 1969 SC 465 (V 56 C 90)
(referred supra), the Constitutional Bench consisting of Five Judges discussed about the
scope of interference of State in the administration and management of minority
educational institutions. In paragraph 4 of the said judgment, the controversy was
referred to. In the facts of the above judgment, the issue was whether the appointments
of teachers in aided colleges shall be made by the Governing Body of the college
concerned on the recommendation of the University Service Commission, shall be
subject to the approval of the Syndicate. Another question was, whether the State has
any say in the recruitment and appointment of teaching and non-teaching staff in view
of the amendment to various provisions under Section 48-A(6), (7), (8), (9), (10) and
(11) of the Bihar Universities Act, 1960. The Apex Court held that, the width of Article
30(1) of the Constitution of India cannot be cut down by introducing in it considerations
on which Article 29(1) is based. The latter article is a general protection which is given
to minorities to conserve language, script or culture, the former is a special right to
minorities to establish educational institutions of their choice. This choice is not limited
to institutions seeking to conserve language, script or culture and the choice is not
taken away if the minority community having established an educational institution of
its choice also admits members of other communities. That is a circumstance irrelevant
for the application of Article 30(1), since no such limitation is expressed and none can
be implied. The two articles create two separate rights although it is possible that they
may meet in a given case. In paragraphs 11 & 12, the Apex Court held as follows:
".....the language of Article 30(1) of the Constitution of India is wide and must
receive full meaning. We are dealing with protection of minorities and attempts
to whittle down the protection cannot be allowed. We need not enlarge the
protection but we may not reduce a protection naturally flowing from the
words. Here the protection clearly flows from the words and there is nothing on
the basis of which aid can be sought from Article 29(1).
We are, therefore, quite clear that St. Xavier's College was founded by Catholic
Minority Community based on religion and that this educational institution has
the protection of Article 30(1) of the Constitution. For the same reason it is
exempted under Section 48-B of the Act. The petition will therefore be allowed
with this declaration but in the circumstances of the case we make no order
about costs."
66. Similarly, the Apex Court in The Ahmedabad St. Xavier College Society and another

v. State of Gujarat MANU/SC/0088/1974 : AIR 1974 SC 1389 (referred supra),
considered the scope of Article 30(1) of the Constitution of India. A larger Bench
consisting of Nine Judges while referring to Rev. Father W. Proost and others v. The
State of Bihar and others MANU/SC/0248/1968 : AIR 1969 SC 465 (V 56 C 90) (referred
supra) and other judgments, concluded that, the right conferred on the religious and
linguistic minorities to administer educational institutions of their choice is not an
absolute right. This right is not free from regulation. Just as regulatory measures are
necessary for maintaining the educational character and content of minority institutions,
similarly regulatory measures are necessary for ensuring orderly, efficiency and sound
administration. In re The Kerala Education Bill, 1957, Special Reference No. 1 of 1958
MANU/SC/0029/1958 : AIR 1958 SC 956 (V 45 C 136) (referred supra), the Supreme
Court summed up in one sentence the true meaning of the right to administer by saying
that the right to administer is not the right to mal-administer.
67. Regulations which will serve the interest of the students, regulations which will
serve the interests of the teachers are of paramount importance in good administration.
Regulations in the interest of efficiency of teachers, discipline and fairness in
administration are necessary for preserving harmony among affiliated institutions.
Education should be a great cohesive, force in developing integrity of the nation.
Education develops the ethos of the nation. Regulations are, therefore, necessary to see
that there are no divisive, or disintegrating forces in administration. In paragraph 41 of
the said judgment, the Apex Court made it clear that, Autonomy in administration
means right to administer effectively, to manage and conduct the affairs of the
institutions. The distinction is between a restriction on the right of administration and a
regulation prescribing the manner of administration. The right of administration is day
to day administration. The choice in the personnel of management is a part of the
administration. The university will always have a right to see that there is no
maladministration. If there is maladministration, the university will take steps to cure
the same. There may be control and check on administration in order to find out
whether the minority institutions are engaged in activities which are not conducive to
the interest of the minority or to the requirements of the teachers and the students.
Further, a reference was made to the judgment in State of Kerala v. Very Rev. Mother
Provincial MANU/SC/0065/1970 : AIR 1970 SC 2079, wherein the Apex Court said that
if the administration goes to a body in the selection of whom the founders have no say,
the administration would be displaced. The Court also held that situations might be
conceived when they might have a preponderating voice. That would also affect the
autonomy in administration. The provisions contained in Section 33A(1)(a) of the Act
have the effect of displacing the management and entrusting it to a different agency.
The autonomy in administration is lost. New elements in the shape of representatives of
different type are brought in. The calm waters of an institution will not only be
disturbed but also mixed. These provisions in Section 33A(1)(a) cannot therefore apply
to minority institutions.
68. In All Saints High School v. Government of A.P. MANU/SC/0059/1980 : AIR 1980
SC 1042) (referred supra), the Apex Court considered various aspects as to the
admission into minority educational institutions and rights of the minorities to establish
educational institutions. The Constitutional Bench of the Apex Court held that, Article
30(1) of the Constitution of India enshrines a fundamental right of the minority
institutions to manage and administer their educational institutions which is completely
in consonance with the secular nature of our democracy and the Directives contained in
the Constitution itself. That although unlike Article 19 the right conferred on the
minorities is absolute, unfettered and unconditional but this does not mean that this
right gives a free licence for maladministration so as to defeat the avowed object of the
Article, namely, to advance excellence and perfection in the field of education. While the
State or any other statutory authority has no right to interfere with the internal
administration or management of the minority institution, the State can certainly take
regulatory measures to promote the efficiency and excellence of educational standards
and issue guidelines for the purpose of ensuring the security of the services of the
teachers or other employees of the institution. At the same time, however, the State or
any University authority cannot under the cover or garb of adopting regulatory
measures tend to destroy the administrative autonomy of the institution or start
interfering willy nilly with the core of the management of the institution so as to render
the right of the administration of the management of the institution concerned nugatory
or illusory. Such a blatant interference is clearly violative of Article 30(1) and would be
wholly inapplicable to the institution concerned. Although Article 30 does not speak of
the conditions under which the minority educational institution can be affiliated to a
college or University yet the section by its very nature implies that where an affiliation
is asked for, the University concerned cannot refuse the same without sufficient reason
or try to impose such conditions as would completely destroy the autonomous
administration of the educational institution. The induction of an outside authority
however high it may be either directly or through its nominees in the governing body or
the managing committee of the minority institution to conduct the affairs of the
institution would be completely destructive of the fundamental right guaranteed by
Article 30(1) of the Constitution and would reduce the management to a helpless entity
having no real say in the matter and thus destroy the very personality and individuality
of the institution which is fully protected by Article 30 of the Constitution. Perhaps there
may not be any serious objection to the introduction of high authorities like the Vice-
Chancellor or his nominee in the administration particularly that part of it which deals
with the conditions of service of the teachers yet such authorities should not be thrust
so as to have a controlling voice in the matter and thus over-shadow the powers of the
managing committee. Where educational institutions have set up a particular governing
body or the managing committee in which all the powers vest, it is desirable that such
powers should not be curbed or taken away unless the Government is satisfied that
these powers are grossly abused and if allowed to continue may reduce the efficacy or
the usefulness of the institution. It is, therefore, open to the Government or the
University to frame rules and regulations governing the conditions of service of teachers
in order to secure their tenure of service and to appoint a high authority armed with
sufficient guidance to see that the said rules are not violated or the members of the
staff are not arbitrarily treated or innocently victimised. In such a case the purpose is
not to interfere with the internal administration or autonomy of the institution, but it is
merely to improve the excellence and efficiency of the education because a really good
education can be received only if the tone and temper of the teachers are so framed as
to make them teach the students with devotion and dedication and put them above all
controversy. But while setting up such an authority care must be taken to see that the
said authority is not given blanket and uncanalised and arbitrary powers so as to act at
their own sweet will ignoring the very spirit and objective of the institution. It would be
better if the authority concerned associates the members of the governing body or its
nominee in its deliberation so as to instill confidence in the founders of the institution
or the committees constituted by them. Thus, the State can impose certain regulations
for protection of teachers, but cannot interfere with the administration and management
of the minority educational institutions by passing any regulation, since, it is violative
of Article 30(1) of the Constitution of India.
69. Similarly, in The Secretary, Malankara Syrian catholic College v. T. Jose and others
MANU/SC/5280/2006 : AIR 2007 SC 570 : 2007 (5) ALT 2.4 (DN SC) (referred supra),
the Apex Court discussed the scope of Article 30(1) of the Constitution of India and
summarized the general principles relating to establishment and administration of
educational institution by minorities as follows:
(i) The right of minorities to establish and administer educational institutions of
their choice comprises the following rights:
(a) To choose its governing body in whom the founders of the
institution have faith and confidence to conduct and manage the affairs
of the institution;
(b) To appoint teaching staff (Teachers/Lecturers and Head-
masters/Principals) as also non-teaching staff; and to take action if
there is dereliction of duty on the part of any of its employees;
(c) To admit eligible students of their choice and to set up a reasonable
fee structure;
(d) To use its properties and assets for the benefit of the institution;
(ii) The right conferred on minorities under Article 30 is only to ensure equality
with the majority and not intended to place the minorities in a more
advantageous position vis-a-vis the majority. There is no reverse discrimination
in favour of minorities. The general laws of the land relating to national
interest, national security, social welfare, public order, morality, health,
sanitation, taxation etc. applicable to all, will equally apply to minority
institutions also.
(iii) The right to establish and administer educational institutions is not
absolute. Nor does it include the right to maladminister. There can be
regulatory measures for ensuring educational character and standards and
maintaining academic excellence. There can be checks on administration as are
necessary to ensure that the administration is efficient and sound, so as to
serve the academic needs of the institution. Regulations made by the State
concerning generally the welfare of students and teachers, regulations laying
down eligibility criteria and qualifications for appointment, as also conditions of
service of employees (both teaching and non-teaching), regulations to prevent
exploitation or oppression of employees, and regulations prescribing syllabus
and curriculum of study fall under this category. Such regulations do not in any
manner interfere with the right under Article 30(1).
(iv) Subject to the eligibility conditions/qualifications prescribed by the State
being met, the unaided minority educational institutions will have the freedom
to appoint teachers/Lecturers by adopting any rational procedure of selection.
(v) Extension of aid by the State, does not alter the nature and character of the
minority educational institution. Conditions can be imposed by the State to
ensure proper utilization of the aid, without however diluting or abridging the
right under Article 30(1).
70. In IVY C. Da Conceicao v. State of Goa and others MANU/SC/0103/2017 : (2017) 3
SCC 619 : 2017 (2) ALT 17 (DN SC). (referred supra), the Supreme Court had an
occasion to deal with the appointment of teacher in aided minority institution who
possessed qualification of BA, MA and B.Ed. The Apex Court held that, Constitution in
Part HI does not contain or give any absolute right. All rights conferred in Part III of the

Constitution are subject to, at least, other provisions of the said Part. It is difficult to
comprehend that the framers of the Constitution would have given such an absolute
right to the religious or linguistic minorities, which would enable them to establish and
administer educational institutions in a manner so as to be in conflict with the other
Parts of the Constitution. It is not the law that in the establishment and administration
of educational institutions by the religious and linguistic minorities, no law of the land,
even the Constitution, is to apply to them. The right to administer does not include the
right to maladminister. It has also been held that the right to administer is not absolute,
but must be subject to reasonable regulations for the benefit of the institutions as the
vehicle of education, consistent with national interest. General laws of the land
applicable to all persons have been held to be applicable to the minority institutions
also for example, laws relating to taxation, sanitation, social welfare, economic
regulation, public order and morality. Even though the words of Article 30(1) are
unqualified, this Court has held that at least certain other laws of the land pertaining to
health, morality and standards of education apply. The right under Article 30(1) is not
absolute. There is no reason why regulations or conditions concerning, generally, the
welfare of students and teachers should not be made applicable in order to provide a
proper academic atmosphere; as such provisions do not in any way interfere with the
right of administration or management under Article 30(1). Laws of the land, including
rules and regulations, must apply equally to the majority institutions as well as to the
minority institutions. So far as the statutory provisions regulating to administration are
concerned, in case of an unaided minority educational institution, the regulatory
measure of control should be minimal and the conditions of recognition as well as the
conditions of affiliation to a university or board have to be complied with. But in the
matter of day-to-day management, like the appointment of staff, teaching and non-
teaching, and administrative control over them, the management should have the
freedom and there should not be any external controlling agency. However, a rational
procedure for the selection of teaching staff and for taking disciplinary action has to be
evolved by the management itself.
71. In Manager, Corporate Educational Agency v. James Mathew MANU/SC/0949/2017 :
(2017) 15 SCC 595 (referred supra), appointment of Principal or Headmaster in a
minority educational institution came up for consideration and the Apex Court held that,
as far as the selection and appointment of the Headmaster or the Principal, as the case
may be, is concerned, the Management of a minority aided educational institution is free
to appoint the Headmaster or the Principal, as the case may be, of its own choice and
has no obligation to appoint the available senior qualified member from the same
community. The right of the minority institutions to select a Principal of its choice is
with reference to the assessment of the person's outlook and philosophy and ability to
implement its objects. The management is entitled to appoint the person, who
according to them, is most suited to head the institution, provided he possesses the
qualifications prescribed for the posts. The career advancement prospects of the
teaching staff, even those belonging to the same community, should have to yield to the
right of the management under Article 30(1) to establish and administer educational
institutions.
72. In Modern High School, Zamisthanpur, Musheerabad, Hyderabad v. Government of
Andhra Pradesh MANU/AP/0748/2001 : 2002 (5) ALT 96 (D.B.) (referred supra), High
Court of Judicature at Hyderabad had an occasion to deal with the issue of appointment
in a minority educational institution, wherein the Division Bench held that, the right to
appoint is part of the management which is guaranteed under Article 30(1) of the
Constitution and the employers have a right to choose the teachers for minority
educational institutions, however, the State can regulate their appointment with regard
to their qualifications. For instance, if a minority institution wants to appoint a person
who is not qualified to be a teacher, the State can always intervene because the
ultimate aim is to impart education and achieve excellence. These institutions cannot be
allowed to be run by unqualified persons but at the same time after having laid down
the criteria the State cannot impose its own appointees on the institutions which would
clearly be an interference in management.
73. In the facts of the above judgment, appointment of staff in minority educational
institutions came up for consideration, in terms of powers conferred on the
Government, under Section 99 of the A.P. Educational Institutions Act, 1982 and rules
framed by the government by G.O.Ms. No. 1 Education (PS2) Department, dated
01.01.1994. Rule 12 was amended giving retrospective effect with effect from
05.08.1998, taking away the power of the minority educational institutions for
appointment of staff. The Division Bench of the High Court held that, G.O. contravenes
the right of managements of the Educational institutions guaranteed under Article 30(1)
of the Constitution of India, since it amounts to depriving the right of institutions
management guaranteed under Article 30(1) of the Constitution of India.
74. In St. John's Teacher Training Institute (for Women), Madurai and others v. State of
Tamil Nadu and others MANU/SC/0017/1994 : AIR 1994 SC 43, the Hon'ble Supreme
Court summarized the broad principles from previous decisions of the Court on the
rights relating to minority educational institutions and summarized as follows:
(i) The fundamental right declared by Article 30(1) of the Constitution is
absolute in terms, but subject to regulatory measures;
(ii) There is no fundamental right under Article 19(1)(g) of the Constitution to
establish or administer an educational institution, if recognition is sought
therefor;
(iii) The institutions must be educational institutions of the minorities in truth
and reality and not mere masked phantoms;
(iv) There is no fundamental right to recognition and any institution seeking
recognition should abide by the regulations prescribed by the State as
conditions therefor;
(v) The minority institutions must be fully equipped with educational excellence
to keep in step with other institutions in the State;
(vi) The regulations framed by the State cannot abridge the fundamental right
of the minorities and they should be in the interests of the minority institutions
themselves and not based on State necessity or general societal necessities;
(vii) The regulations should be with a view to promoting excellence of
educational standards and ensuring security of the services of teachers and
other employees of the institutions and in the true interests of efficiency of
institutions, discipline, health, sanitation, morality, public order and the like;
(viii) Even unaided institutions are not immune from the operations of general
laws of the land such as Contract Law, Tax measures, Economic Laws, Social
Welfare Legislations Labour and Industrial Laws and similar other laws which
are intended to meet the need of the Society;

75. Similarly, in Sidhajbhai Sabhai and others v. State of Bombay MANU/SC/0076/1962
: AIR 1963 SC 540, the Constitutional Bench of the Supreme Court considered as to
whether the interference with the right of management of an educational institution
would amount to infringement of the right to property and held that, interference with
the right of bare management of an educational institution does not amount to
infringement of right to property under Article 19(1)(f) of the Constitution of India. The
Apex Court also observed that, Article 30(1) provides that all minorities have the right
to establish and administer educational institutions of their choice, and Article 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 Clause (1). The clause is moulded in negative terms: 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.
The Court also held that, unlike Article 19, the fundamental freedom under Clause (1) of
Article 30, is absolute in terms; it is not made subject to any reasonable restrictions of
the nature the fundamental freedoms enunciated in article 19 may be subjected to. All
minorities, linguistic or religious have by Article 30(1) an absolute right to establish and
administer educational institutions of their choice; and any law or executive direction
which seeks to infringe the substance of that right under Article 30(1) would to that
extent be void. This, however, is not to say that it is not open to the State to impose
regulations upon the exercise of this right. The fundamental freedom is to establish and
to administer educational 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.
7 6 . In The Secretary, Malankara Syrian catholic College v. T. Jose and others
MANU/SC/5280/2006 : AIR 2007 SC 570 : 2007 (5) ALT 2.4 (DN SC) (referred supra),
reliance was made by the Apex Court in T.M.A. Pai Foundation v. State of Karnataka
MANU/SC/0905/2002 : AIR 2003 SC 355 : 2002 (6) ALT 35.2 (DN SC) in respect of the
extent to which the right of administration of aided minority educational institutions
could be regulated and it is as follows:
"...the state cannot, when it chooses to grant aid to educational institutions,
deny aid to a religious or linguistic minority institution only on the ground that
the management of that institution is with the minority. We would, however,
like to clarify that if an abject surrender of the right to management is made a
condition of aid, the denial of aid would be violative of Article 30(2). However,
conditions of aid that do not involve a surrender of the substantial right of
management would not be inconsistent with constitutional guarantees, even if
they indirectly impinge upon some facet of administration.
It cannot be argued that no conditions can be imposed while giving aid to a
minority institution. Whether it is an institution run by the majority or the
minority, all conditions that have relevance to the proper utilization of the
grant-in-aid by an educational institution can be imposed.... The conditions for
grant or non-grant of aid to educational institutions have to be uniformly
applied, whether it is a majority-run institution or a minority-run institution. As
in the case of a majority run institution, the moment a minority institution
obtains a grant of aid, Article 28 of the Constitution comes into play. When an
educational institution is maintained out of State funds, no religious instruction
can be provided therein."
77. The other points discussed in the judgment are not relevant.
7 8 . The Constitutional Bench, answered Question 5(c) relating to the statutory
provisions regulating the facets of administration, and expressed the view that in case
of an unaided minority educational institutions, the regulatory measure of control
should be minimal; and in the matter of day-to-day management, like the appointment
of staff (both teaching and non-teaching) and administrative control over them, the
management should have the freedom and there should not be any external controlling
agency. But such institutions should have to comply with the conditions of recognition
and conditions of affiliation to a University or Board; and a rational procedure for the
selection of teaching staff and for taking disciplinary action has to be evolved by the
management itself.
79. In P.A. Inamdar and others v. State of Maharashtra MANU/AP/0465/2005 : 2005 (5)
ALT 1 (SC) : (2005) 6 SCC 537) (referred supra), the Apex Court once again reiterated
the principle laid down in T.M.A. Pai Foundation v. State of Karnataka
MANU/SC/0905/2002 : AIR 2003 SC 355 : 2002 (6) ALT 35.2 (DN SC) (referred supra)
and culled out the following principles:
(i) The right of minorities to establish and administer educational institutions of
their choice comprises the following rights:
(a) To choose its governing body in whom the founders of the
institution have faith and confidence to conduct and manage the affairs
of the institution;
(b) To appoint teaching staff (Teachers/Lecturers and Head-
masters/Principals) as also non-teaching staff; and to take action if
there is dereliction of duty on the part of any of its employees;
(c) To admit eligible students of their choice and to set up a reasonable
fee structure;
(d) To use its properties and assets for the benefit of the institution;
(ii) The right conferred on minorities under Article 30 is only to ensure equality
with the majority and not intended to place the minorities in a more
advantageous position vis-a-vis the majority. There is no reverse discrimination
in favour of minorities. The general laws of the land relating to national
interest, national security, social welfare, public order, morality, health,
sanitation, taxation etc. applicable to all, will equally apply to minority
institutions also.
(iii) The right to establish and administer educational institutions is not
absolute. Nor does it include the right to maladminister. There can be
regulatory measures for ensuring educational character and standards and
maintaining academic excellence. There can be checks on administration as are
necessary to ensure that the administration is efficient and sound, so as to
serve the academic needs of the institution. Regulations made by the State
concerning generally the welfare of students and teachers, regulations laying

down eligibility criteria and qualifications for appointment, as also conditions of
service of employees (both teaching and non-teaching), regulations to prevent
exploitation or oppression of employees, and regulations prescribing syllabus
and curriculum of study fall under this category. Such regulations do not in any
mannor interfere with the right under Article 30(1).
(iv) Subject to the eligibility conditions/qualifications prescribed by the State
being met, the unaided minority educational institutions will have the freedom
to appoint teachers/Lecturers by adopting any rational procedure of selection.
(v) Extension of aid by the State, does not alter the nature and character of the
minority educational institution. Conditions can be imposed by the State to
ensure proper utilization of the aid, without however diluting or abridging the
right under Article 30(1).
8 0 . Full Bench of the Kerala High Court in Aldo Maria Patroni v. E.C. Kesavan
MANU/KE/0032/1965 : AIR 1965 Ker. 75, stated that the management of minority
institution is free to find out a qualified person either from the staff of the same
institution or from outside, to fill up the vacancy; and that the management's right to
choose a qualified person as the Headmaster of the school is well insulated by the
protective cover of Article 30(1) of the Constitution and it cannot be chiseled out
through any legislative act or executive rule except for fixing up the qualifications and
conditions of service for the post; and that any such statutory or executive feat would
be violative of the fundamental right enshrined in Article 30(1) and would therefore be
void.
8 1 . Referring to the above judgments, the Apex Court in The Secretary, Malankara
Syrian Catholic College v. T. Jose and others MANU/SC/5280/2006 : AIR 2007 SC 570 :
2007 (5) ALT 2.4 (DN SC) (referred supra), concluded that, freedom to choose the
person to be appointed as Principal has always been recognized as a vital facet of the
right to administer the educational institution. This has not been, in any way, diluted or
altered in T.M.A. Pai Foundation v. State of Karnataka MANU/SC/0905/2002 : AIR 2003
SC 355 : 2002 (6) ALT 35.2 (DN SC) (referred supra). Having regard to the key role
played by the Principal in the management and administration of the educational
institution, there can be no doubt that the right to choose the Principal is an important
part of the right to administration and even if the institution is aided, there can be no
interference with the said right. The fact that the post of the Principal/Headmaster is
also covered by State aid, will make no difference.
82. In view of the long line of perspective pronouncements the law declared by the
Supreme Court in the judgments referred supra, the right under Article 30(1) of the
Constitution of India, though not absolute, the Government is competent to formulate
certain regulations for the benefit of teachers, students, teaching and non-teaching staff
to achieve the excellence in education and cannot interfere with their right in appointing
teaching and non-teaching staff, since it exclusively vests with the management of the
institution. Such interference is violative of the fundamental right guaranteed under
Article 30(1) of the Constitution of India.
83. Turning to the facts of the present case, in view of G.O.Ms. No. 1 Education (PS.2)
Department dated 01.01.1994, certain procedure is prescribed and the rule conferred
power on the management of the minority institutions to appoint teaching and non-
teaching staff, while stating that such selection or appointment of both teaching and
non-teaching staff is subject to approval by the competent authority.

84. Earlier an attempt was made by the State to whittle down the right conferred on the
minority institutions and to hijack the power of administration and management of the
minority educational institutions and passed G.O.Ms. No. 76 dated 02.11.1999, which
was the subject matter in Modern High School, Zamisthanpur, Musheerabad, Hyderabad
v. Government of Andhra Pradesh MANU/AP/0748/2001 : 2002 (5) ALT 96 (D.B.)
(referred supra).
85. This Court, by placing reliance on various judgments, concluded that, taking away
the right to appoint teaching and non-teaching staff in the minority educational
institutions would infringe the fundamental right enshrined under Article 30(1) of the
Constitution of India. The law declared by the Coordinate Bench of this Court in similar
circumstances is a binding precedent. Even if the principles laid down by the Supreme
Court in long line of perspective pronouncements referred supra are taken into
consideration, the State is competent to pass certain regulations but only to limited
extent, as referred in P.A. Inamdar and others v. State of Maharashtra
MANU/AP/0465/2005 : 2005 (5) ALT 1 (SC) : (2005) 6 SCC 537) (referred supra),
T.M.A. Pai Foundation v. State of Karnataka MANU/SC/0905/2002 : AIR 2003 SC 355 :
2002 (6) ALT 35.2 (referred supra), The Secretary, Malankara Syrian catholic College v.
T. Jose and others MANU/SC/5280/2006 : AIR 2007 SC 570 : 2007 (5) ALT 2.4 (DN SC)
(referred supra), The Ahmedabad St. Xavier College Society and another v. State of
Gujarat MANU/SC/0088/1974 : AIR 1974 SC 1389 (referred supra) and All Saints High
School v. Government of A.P. MANU/SC/0059/1980 : AIR 1980 SC 1042) (referred
supra). The State cannot take away the power of the management of minority
educational institutions either religious or linguistic to select and appoint either
teaching or non-teaching staff and if any attempt is made to interfere with such
administration, by prescribing any procedure, it would directly infringe with the
fundamental rights guaranteed under Article 30(1) of the Constitution of India.
86. One of the contentions raised by he learned Government Pleader for Education is
that, Section 78 of A.P. Education Act deals with constitution of educational service.
According to him, Clause (1) thereof permits the State by notification to constitute any
officer or class of officers or any teacher or class of teachers appointed or deemed to be
appointed under this Act into an educational service for the State. According to Clause
(2), upon issue of a notification under sub-section (1), the Government shall have
power to make rules to regulate the classification, methods of recruitment, conditions of
service, pay and allowances and discipline and conduct of the members of the
educational service thereby constituted and such rules may vest jurisdiction in relation
to such service in the Government or in such authority or authorities, as may be
prescribed.
87. In the present case, there is no dispute with regard to the power of this State, but,
the above provision cannot be applied to minority educational institutions, since such
rule is violative of the fundamental right guaranteed under Article 30(1) of the
Constitution of India, as establishment of minority institutions of religious or linguistic
minorities and its administration and management is absolute, subject to reasonable
restrictions as referred to in the judgments referred to above. But, in the guise of
Section 78 of the A.P. Education Act, the rights of minority educational institutions
cannot be hijacked in the name of guidelines or regulations issued by the State.
Therefore, we hold that the contention of the learned Government Pleader sans merit.
8 8 . It is also contended by the learned Government Pleader for Education that, the
Government is only appointing teachers whereas the overall control of management,
disciplinary action on teachers still vests with the minority institutions. When the
Government is the appointing authority, the minority institutions are not competent to
have disciplinary jurisdiction over the employees working in the minority educational
institutions. The appointing authority alone is the disciplinary authority in normal
course of events. If, for any reason, appointments are made by the State, the
disciplinary action shall also be taken by the State alone, but not by the educational
institutions, thereby, the minority institutions will not enjoy the fundamental right
guaranteed under Article 30(1) of the Constitution of India and any regulation made in
violation of fundamental right guaranteed under the Constitution of India by subordinate
or delegated legislation or by any other legislation is illegal. Hence, on this ground also,
it is difficult to accept the contention of the learned Government Pleader for the State.
89. In the facts before us in these writ petitions, the dispute is with regard to legality of
the regulation i.e. amendment to Rule 12 and omission of Rule 13 by G.O.Ms. No. 43
School Education (PS) Department dated 09.08.2018. The State framed the Rules by
exercising power conferred under Section 99 of the A.P. Education Act. But, such power
can be exercised only to the extent indicated in the law laid down by the Apex Court in
various judgments and the extent of such exercisable power referred supra.
90. If, the subordinate or delegated legislation is violative of fundamental right of an
individual or a body, or is contrary to the provisions of the principal legislation, the
Court can exercise its power and strike down such provision as unconstitutional is a
basic principle.
91. Though, the educational institutions in the State of Andhra Pradesh are governed by
A.P. Education Act, and none of the provisions of A.P. Education Act are in violation of
the fundamental right guaranteed under Article 30(1) of the Constitution of India, but,
in the guise of regulations or rules, the State amended G.O.Ms. No. 1 Education (PS.2)
Department dated 01.01.1994 by issuing G.O.Ms. No. 43 School Education (PS)
Department dated 09.08.2018, taking away the right of administration of minority
educational institutions from its management.
92. A similar vain attempt was made by the State earlier by issuing G.O.Ms. No. 76
dated 02.11.1999. The said G.O. was challenged before the High Court in Modern High
School, Zamisthanpur, Musheerabad, Hyderabad v. Government of Andhra Pradesh
MANU/AP/0748/2001 : 2002 (5) ALT 96 (D.B.) (referred supra), wherein the Division
Bench struck down the same as being unconstitutional. Despite striking down the G.O.,
the first respondent again repeated the same mistake, and tried to hijack the power of
administration from the minority educational institutions, in utter violation of
fundamental right guaranteed under Article 30(1) of the Constitution of India. Since,
G.O.Ms. No. 43 School Education (PS) Department dated 09.08.2018 infringes the
fundamental right of the minority institutions, the same is liable to be struck down.
Accordingly, the point is answered in favour of the petitioners and against the
respondents.
POINT No. 3
93. Though the respondents raised several contentions with regard to minority status of
the petitioners, this Court, in the present petitions cannot decide the same, as the
constitutional validity of G.O.Ms. No. 43 is itself challenged before this Court and if this
Court strikes down the G.O., which is applicable only to the minority educational
institutions whether aided. However, only the minority educational institutions who
obtained certificate from the competent authorities as defined under Section 2(1)(a) of
the National Commission for Minority Educational Institutions Act, 2004, which deal

with establishment, recognition and administration of minority educational institutions
providing an appeal against the order passed by the competent authority. But, in the
present facts, it is unnecessary to delve upon such an issue. It is for the government to
take appropriate action against the institutions which are not declared as minority
educational institutions as per the provisions of National Commission for Minority
Educational Institutions Act, 2004. These questions cannot be decided in the present
petitions and the same is left open to the State to take appropriate action in this regard.
94. In view of our foregoing discussion, writ petitions are allowed declaring G.O.Ms.
No. 43 as void and unconstitutional, as it is violative of fundamental right guaranteed
under Article 30(1) of the Constitution of India.
95. Consequently, miscellaneous applications pending if any, shall stand closed.
© Manupatra Information Solutions Pvt. Ltd.


Ester Axene Res High School and Ors vs State of AnAP20192507191725443COM247962

Uploaded by

Document Informationclick to expand document information

Document Informationclick to expand document information

Copyright:

Available Formats

Ester Axene Res High School and Ors vs State of AnAP20192507191725443COM247962

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Ester Axene Res High School and Ors vs State of AnAP20192507191725443COM247962

Uploaded by

Copyright:

Available Formats

MANU/AP/0045/2019

Equivalent/Neutral Citation: 2019(5)ALD72, 2019(3)ALT404, 2019:APHC :15849

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

07-12-2024 (Page 3 of 31) www.manupatra.com

07-12-2024 (Page 6 of 31) www.manupatra.com

07-12-2024 (Page 7 of 31) www.manupatra.com

07-12-2024 (Page 10 of 31) www.manupatra.com

07-12-2024 (Page 12 of 31) www.manupatra.com

07-12-2024 (Page 13 of 31) www.manupatra.com

07-12-2024 (Page 15 of 31) www.manupatra.com

07-12-2024 (Page 16 of 31) www.manupatra.com

07-12-2024 (Page 17 of 31) www.manupatra.com

07-12-2024 (Page 20 of 31) www.manupatra.com

07-12-2024 (Page 23 of 31) www.manupatra.com

07-12-2024 (Page 25 of 31) www.manupatra.com

07-12-2024 (Page 27 of 31) www.manupatra.com

07-12-2024 (Page 28 of 31) www.manupatra.com

07-12-2024 (Page 30 of 31) www.manupatra.com

07-12-2024 (Page 31 of 31) www.manupatra.com

You might also like