In this chapter we will cover the legal aspects relating to various administrative issues.

Do Minorities also have a fundamental right to claim affiliation, recognition and aid from the University or Government? The govt normally does not recognize institutions that are neither aided nor affiliated. However, if an institution seeks any of these benefits then the govt imposes conditions. Minority institutions have held this to be an infringement of the rights under art 30 (1).

On aid art 30 (2) is very categorical " The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it was under the management of a minority, whether based on religion or language". On recognitions/affiliation though regulatory measures can be imposed they cannot be such to erode the core of minority rights.

The issue of recognition came up for discussion before the Supreme Court in the case of Sidhrajbhai (AIR 63 SC 540). The State argued that recognition was not a fundamental right. The Court said this was true but "manifestly, in the absence of recognition by the govt, training in the college will have little practical utility". In All Saints High Schools Case (1980 2 SCC 478) the Supreme Court observed 'Although article 30 does not speak of the conditions under which minority educational institution can be affiliated to a College or University yet the section by its very nature implies that when an affiliation is asked for, the University cannot be refused without sufficient reason or try to impose such conditions as would completely destroy the autonomous administration of the institution".

Because of the advantages in claiming minority status some of which are listed below a number of institutions want to become minority ones. The advantages are -

• Reservation policy need not be implemented either in admissions or filling up posts.

• Management has much wider rights in appointment of Head Master/Principal and some other specified senior posts.

• Even in the event of gross malpractice, the management cannot be taken over.

• The management has much wider power in the constitution of the managing committee.

• The management is not bound to admit students nominated by the Government.

• In the constitution of selection committee for appointment of staff, the Government and Universities have much restricted powers.

Before an institution can claim minority status the following have to be proved.

• It was established by a minority.
• It is being administered by a minority.
• It is founded and is being run for the benefit of the minority.

The burden of proof that an institution is a minority lies with the institution. In A.P. Christians Medical Education Society vs. the Govt of Andhra Pradesh the Supreme Court rejected the argument of the Society that the Govt or University had no business to determine whether actually the institution was a genuine minority institution or not.

Now are the rights under article 30 (1) absolute? - The Supreme Court has repeatedly held that article 30 is subject to regulatory measures. In the Kerala Education Bill (AIR 1958 SC 956) the Supreme Court said, "The right to administer cannot obviously include the right to maladminster".

In Sidhrajbhai (AIR 63 SC 540) the Court laid down a very important proposition. It observed that, though the State has a right to impose regulatory measures, this right has to be exercised in the interest of the institution and not on the grounds of public interest or national interest. Amazing na interest of institution is paramount the nation! "If every regulatory order which while maintaining the formal character of a minority institution destroys the power of administration is held justifiable because it is in national or public interest, though not in its interest as an educational institution the right guaranteed under article 30 (10 will be but a teasing illusion, a promise of unreality. Regulations must be towards making it effective as an educational institution".

In the State of Kerala vs. Rev Mother Provincial (AIR 1970 SC 2079) the Supreme Court said "The Right of the State to regulate education, educational standards and allied matters cannot be denied".

In the case of Nanda Ghosh vs. Guru Nanak Education Trust, AIR 1984 CAL 40, the Calcutta High Court held that the Education Board cannot interfere with the management of a minority institution by superceding its managing committee and appointing an administrator to take charge of the school and administer it.

The matter has been a subject of tons of litigation. For simplicity I am reproducing a summary of the various rights as enunciated by Adv Mihir Desai -

1. Service Conditions

• The authorities have the right to lay down the service conditions and conduct rules of the employees employed in minority educational institutions.

2. Qualifications

• Management is bound to follow the minimum qualifications as laid down by the govt/university.

• Management is at liberty to prescribe additional qualifications.

3. Appointments

• Procedure for selection can be laid down by govt/university.

• Minority institutions cannot be required to obtain prior approval of the Govt/ University for appointment of the staff.

• However a regulation providing for post facto concurrence of the dept/university is valid if it is only to ensure that a qualified person has been appointed and the procedure for selection has not been violated.

• Rule providing that no appointments be made in anticipitation of vacancies is valid.

• A rule requiring that the senior most teacher must be promoted to the Head Master’s post cannot be binding on minority schools. (A.M. Patroni vs E C Kesavan, AIR 1965 Ker).

4. Reservations

• Minority institutions cannot be forced to implement the reservation policy for Backward Classes and Castes.

Friends think about this one. The Constitution clearly provides reservations for backward classes etc. Yet minority schools are exempt from this provision. In reality no backward class person would go to a madrassa. Say if he wanted to go to a Christian college like Mumbai’s St Xaviers or a Sindhi one like Jaihind College he cannot get admission if he does not have the marks. Given that our erstwhile rulers were Christians a large number of institutions established by them have come to be run by Indian Christians. By virtue of being a minority college Xavier’s reserves 50 % seats for Christians but the Christian population is app 4%. I would presume that it would mean more seats and less Christians. Where does the Hindu, upper or backward caste go? Does it not give the Christians power to admit non-Christian students resulting in POWER that the am sure the framers of the Constitution had not thought about!

5. Pay, Allowances

• Minority institutions would be bound to follow the same rules w.r.t wages, salaries etc as may be applicable to non-minority institutors.

6. Suspension

• A provision that no employee shall be suspended except with the prior permission of the educational authority is valid provided in case of gross misconduct the management is allowed to put an employee under suspension and thereafter obtain the permission of the educational minority.

• This means that a government or university cannot ask for the teacher of a minority institution to be suspended. The governing body can only exercise such a power.

7. Others - excerpts

• Minority institutions are bound to follow prescribed procedure for termination.

• Provisions allowing teachers to contest elections cannot be applied to minority institutions.

• A provision that in minority institution Head Master should be appointed only on the basis of seniority is not valid.

• In minority institutions the govt cannot nominate students.

• The govt cannot mandate the reservation of seats for Backward Classes.

• An aided minority institution is not meant for the exclusive benefit of its own community.

• A minority institution can give preference in admission to its own students.

• However, in aided minority institutions 50 % of seats must be available to non-minority students. (A Supreme Court decision in the St Stephens College case, not specifically laid out in the Constitution).

• Minority institutions can provide an admission procedure whereby 15 % marks are to be allotted by interviews.

• Neither the State nor the University can compulsorily impose a medium of instruction.

• However, the State can provide for study of the State language as compulsory second language.

• Minority institutions would be bound to follow the syllabus as laid down by the State but the State cannot impose such syllabus, which directly erode or contradict minority rights. (I wonder who lays down the syllabus for the Madrassas).

• Neither aided nor unaided minority institutions can charge fees which are higher than those prescribed by the state but they would be free to approach the authorities to increase the fees if the circumstances exist.

• Provision that a minority institution must have a managing committee registered under the Society’s Registration Act, 1860 and have written Byelaws is valid.

• But the State cannot regulate how a managing committee of a minority institution is to be constituted.

• The condition that a college should have a governing board, which is approved by the University and has members of University on it, cannot apply to minority colleges.

• The State cannot direct a minority institution to appoint an outsider as a Secretary.

• Provision allowing the Government to takeover the minority management even for a limited period is bad.

• Provision regarding inspection, keeping of accounts and general supervision by an outside authority is valid.

• The State can prescribe the syllabus for an educational institution.

• Provisions prescribing the minimum infrastructure for an educational institution are valid like healthy surroundings, number of classrooms, qualified teachers, adequate space, and laboratories.

• The Right to administer does not include a right to maladminister as referred to above.