The Congregation of the Sisters of the Cross Chavahand vs The State of Tamilnadu and Others

E. Padmanabhan, J.—In W.P. No. 13998 of 1995, the Congregation of the Sisters of the Cross Chavahod, Tiruchirappalli prays for the

issue of a writ of declaration declaring Rule 22(A) of the Code of Regulations for Matriculation Schools, Tamil Nadu, insofar as the Petitioners

Holy Cross Matriculation High Secondary School, Vellore is concerned, as unconstitutional.

In W.P. No. 15085 of 1995 the very same Congregation of the Sisters of the Cross Chavahod. Tiruchirappalli pray for the issue of a writ of

Certiorari calling for the records relating to the proceedings in R.C. No. 2906/94/B. dated 26.10.1995 of the Inspector of Matriculation Schools,

Coimbatore-45, the third Respondent herein and quash the same insofar as the said proceedings directing reinstatement of service regarding

Respondents 4 to 6 are concerned.

Heard Mr. Joseph Thatheus Jerome, learned Counsel appearing for the Petitioners in both the writ petitions. Mr. N.R. Chandran, learned

Advocate General for Mr. S.P. Prabhakaran, Additional Government Pleader (Education) and Mr. K. Chandru, learned Senior counsel for Mr. R.

Yashod Varadhan, appearing for Respondents 4 to 9.

According to the Petitioner, it is a registered Society and it was established to administer several charitable and educational institutions in South

India. The Petitioner-Congregation has established and is administering several education institutions with their own funds in Tamil Nadu. The

Petitioner had established College, Higher Secondary Schools, Middle Schools as well as Primary Schools and Matriculation Schools in the State.

The Matriculation Schools are not getting any grant or aid from the State. The Petitioner-Congregation had established and is administering the

Holy Cross Matriculation Higher Secondary School, Vellore with its own funds. The object of starting such an educational institution being to

benefit the catholic children, boys and girls to make them good citizens of this Country.

The Petitioner hastens to add that admission is not denied to other students of other faith or religion and they are being given moral instructions.

The Petitioner-Congregtation and all its education institutions have already have held as Minority Educational Institutions falling under Article 30(1)

of the Constitution of India in W.P. No. 627 of 1975 ( OB.) which was decided on 17.12.1975. The Petitioner-Congregation is running the Holy

Cross Matriculation Higher Secondary School, conducting Bible Study, preparing the students for receiving Holy sacraments recognised by

Roman Catholic Church and Organising legion of Mary and young sodalities to strengthen the spirit of worship in the catholic students studying in

the institution. Preference in admission is given for catholic students in all the congregation schools. There is a nexus between the R.C. Community

and the Congregation schools including the Holy Cross Matriculation Higher Secondary School.

According to the Petitioner, in their Matriculation School, the Petitioner appointed six teachers, who came to be terminated the teacher from

service on 31.05.1995 after noon, on valid ground in the interest of students studying in the School, for dereliction of duty, wilful negligence of duty

and insubordination and it was an order on a proper notice and the said termination is valid in law.

The said teachers preferred an appeal before the third Respondent under Rule 22(A) of the Code of Regulation for Matriculation Schools. The

Petitioner moved this Court seeking for a mandamus for the disposal of those appeals. In the said petition, the Petitioner challenged Regulation

22(A) as offending Article 30(1) of the Constitution of India, conferring power to outside authorities without giving any guidelines for exercising of

that power interfering with the rights of the minority to administer this institution. The said Regulation is of unguided scrutiny and unlimited review of

the Appellate Authority, which constitute a serious interference with the right of administration to minority guaranteed under Article 30(1) of the

Constitution. In the absence of any guidelines or unguided provisions in the said regulation to exercise the power under Regulation 22(A), it solely

depends on the whims and fancies of the individual exercising the power which will be an arbitrary exercise of power. Such exercise of power is

violative of Article 14 of the Constitution.

The Petitioner pointed out that the provision of appeal to the Authority against the orders of termination has already been held to be not

applicable to the minority institutions in the case reported in 1990 WLR 51. It is the contention of the Petitioner that the third Respondent has no

jurisdiction to entertain the appeal, who is incompetent. Hence, the present writ petition has been filed seeking for a declaration that the said

Regulation 22(A) is unconstitutional. The Petitioner also prayed for suspension of operation of the said Regulation 22(A), pending the writ petition.

Subsequently the very same Petitioner filed W.P.15085 of 1995 praying for the issue of writ of certiorari to call for and quash the proceedings

of the Inspector of Schools, Coimbatore in his office Ro.2906/94/3, dated 26.10.1995 and quash the paragraphs 4 and 5 of the said proceedings,

insofar as the directions had been issued to reinstate the Respondents 4 to 6 in service. In this writ petition, it is stated that six teachers, whose

services were terminated, moved appeal before the Appellate Authority under Regulation 22(A). After referring to certain alleged misconduct on

the part of the said teachers, it is admitted that without holding an enquiry and without affording an opportunity, the services of those teachers were

dispensed with extending their probation and ultimately terminated the probation as well. In paragraphs 16 to 29 of the Affidavit filed in support of

the writ petition, the writ Petitioner School had elaborated certain alleged misconduct and commissions and omissions on the part of the six of the

teachers, whose services have been terminated. It is admitted that no show cause notice or charge memo has been issued nor an enquiry had been

conducted nor minimum requirement of principles of natural justice had been followed by the Petitioner School.

The third Respondent by proceedings dated 26.10.1995 set aside the order of termination passed in respect of the three of the teachers, while

it is being claimed that the order of termination is simply innocuous and that the third Respondent has no jurisdiction to order reinstatement as the

Petitioner school is not a statutory authority nor the appeal is maintainable nor the order of termination is liable to be interfered. According to the

Petitioner schools, the orders of termination are simple termination and they are not made on disciplinary action. The Petitioner School has already

challenged the Regulation 22(A) as void and unconstitutional and violative of Article 14 as well as Article 30. Hence the second writ petition has

been filed challenging the proceedings of the third Respondent directing reinstatement of Respondents 4 to 6 in service. The Petitioner also prayed

for interim order.

At the request of the counsel of either side, both the writ petitions were ordered to be consolidated and taken up for hearing. Common

arguments were advanced by the counsel for the writ Petitioner as well as by the counsel for the Respondents. Learned Advocate General argued

the matter and opposed both the writ petitions. On behalf of the contesting teachers, Mr. Chandru, Senior Counsel, submitted his arguments

supporting the orders impugned and also contended that it is not open to the Petitioner to challenge a portion of the proceedings after having

secured permission to establish the Matriculation School in terms of the Code of Regulations of Conduct of Matriculation School. According to

Mr. Chandru, it is not open to the Petitioner to go back and challenge the Regulation 22(A) as the school has already undertaken to abide by the

Code as well as the various terms and Conditions set out in the agreement entered into between the teachers and the School Management.

In both the writ petitions, the following points arise for consideration: -

Whether Regulation 22(A) of the Code of Regulation for Matriculation school framed by the State of Tamil Nadu is liable to be declared as

violative of Articles 30(1) and 14 of the constitution, void and unconstitutional ?

Whether the conferment of appeal powers on the third Respondent, who is an outside agency is valid in law?

Whether the impugned termination of teachers by the Petitioner is punitive or simplicitor termination or probationers?

Whether the proceedings of the third Respondent appellate Authority is illegal and liable to be quashed as arbitrary?

Whether the third Respondent has jurisdiction to entertain the appeal?

Whether the orders passed by the third Respondent on the appeal is liable to be quashed on one or more of the grounds urged by the

Petitioner?

Before taking up the constitutional validity of the Regulation and also examining the contentions as to the conferment of power on appeal to the

outside agency, the other contentions could be taken up conveniently for consideration and decided for the purpose of convenience. First we have

to refer to the minimum facts to decide the contentions advanced.

It is admitted that the three teachers, who moved an appeal before the third Respondent, were appointed as teachers by the writ Petitioner in

its Matriculation School on 3.6.1992. The order of appointment of teachers were passed by the correspondent who is the competent authority.

The three teachers came to be appointed as Secondary Grade Assistant with effect from 3.6.1992 on temporary basis. On 30.3.1993, i.e., just

before the end of the academic year 1992-93, the temporary appointment of the teachers were extended. The teachers continued in service till

8.4.1995, on which date the order of termination was passed with effect from 31.5.1995. Such orders have been passed to avoid the payment of

vacation salary for the three teachers. Being aggrieved by the said termination, the respective teachers preferred an appeal before the Inspector of

Matriculation School, Coimbatore. The said Authority after calling for the records pointed out the irregularities and illegalities and took note of the

length of services rendered, the qualification possessed, the opening of Service Register, sanctioning of annual increments for the respective

teachers and completion of their probation and as there is violation of principles of natural justice and reasons assigned being not in conformity with

the Code of Regulations framed in respect of the Matriculation School. The Appellate Authority recorded the above reasons, allowed the appeal

and set aside the order of termination and directed the reinstatement of those teachers as the action of Petitioner-school is illegal, violative of

principles of natural justice, arbitrary, punitive and uncalled for.

The question whether it is termination simplicitor of the teachers or whether this termination of probationers is one of the contentions, with

respect of which certain arguments were advanced. learned Counsel for the Petitioner though contended that this termination is valid, this Court is

unable to sustain such contentions advanced on behalf of the School on the facts of the case. In this case, admittedly, the teachers completed the

period of probation of one year and they continued in service. On a reading of the order of termination, it is found that it is not an innocuous order

of termination or discharge of probationers simplicitor. It is not necessary to refer to any other correspondence, but on the facts of the case, it

would be sufficient to refer to the averments set out in the affidavit filed in support of the writ petition which has got barring in this respect.

The following are the material passages in the affidavit, which deserve to be extracted as it is sufficient to answer there contentions:

I beg to state about six temporary and probationary teachers in the school were terminated from services, from the AN. of May 31st 1995 on

valid grounds, in the interest of the students studying in the school, dereliction of duty, wilful neglect of duty and insubordination and done on

proper notice. The termination is valid and legal. Accordingly the 6 teachers received their certificates and left the school.

Mr. Balaji, the 4th Respondent, was appointed as Secondary Grade Assistant on 10-06-1991 on temporary basis and renewed on 3-6-1992

with the warning to improve his teaching. Since he had not improved his teaching his services were terminated on 31-5-1993. The new Principal

wrongly extended his services on probation. The extension on probation has to be done only by the Correspondent. The principal who is

employee of the Management has no power of appointment or to give extension of service in the school. Hence, Mr Balaji was only a temporary

teacher.

Memos regarding the wilful negligence of his duty with regard to correction and teaching were given on 15.3.1992, March 1993 and

7.1.1995. His mistakes and negligence were pointed out by the Principal. Regarding this the Memos were given on 6-12-1994, 3-4-1995 and 1-

4-1995. He refused to receive the Memos in the presence of teachers who have acknowledged to this fact.

Mr. Balaji was forming groupism among some teachers staff by getting their signature in a paper with a promise of getting loan from the Bank.

Getting the signature of the teachers in a sheet of paper was done during working hours without the knowledge of the School authorities.

Mr. Kumar was appointed as Secondary Grade Assistant with effect from 1-6-1990 till 30th April 1991. He was reappointed on 5-6-1991

on temporary basis. This temporary appointment was renewed on 3-6-1992 with the break of three days, after giving instructions to improve his

method of teaching and his English knowledge. Since there was no improvement, his services were terminated with two months notice with effect

from 31st May 1993. The new principal wrongly extended his service on probation. The extension of probation has to be done only by the

Correspondent. The Principal is the employee of the management, who has no power of appointment or to give extension of service in the school.

Hence he was only a temporary teacher.

Memos were given on 24.3.1993 and 4.3.1995 for the following reasons:

i) for lack of correct knowledge of English to communicate the subjects to the children:

ii) for teaching all the lessons in Tamil; and

iii) for bad pronunciation both in English and Tamil.

Memo was given on 24.3.1993 for making his work easy by writing the question answers and the compositions on the black board and asking the

children to copy down thus suppressing the originality and personal thinking of the students.

Mr. Kumar was given a notice on 8-4-1995 terminating his service with effect from 31st May 1995 with pay and leave salary. He was not

terminated on disciplinary grounds. His termination was a simple termination without causing any stigma on him. The order of termination is valid

and legal. The termination is in conformity with his term of employment. Mr. Kumar received his original certificates and left the school.

Mr. Sunder Raj a Secondary Grade teacher was appointed on 1-7-1991 on temporary basis and renewed on 3-6-1992 with an oral warning

to improve his teaching. Since he had not improved his teaching his services were terminated on 31-5-1993 with two months notice. The new

Principal wrongly extended his service on probation. The extension on probation has to be done only by the Correspondent. The principal who is

the employee of the management has no power of appointment or to give extension of service in the school. Hence he was only a temporary

teacher.

Inspite of repeated warnings Mr. Sundar Raj was negligent and very careless in his commitment to his work as a teacher. Whenever his

mistakes regarding the correction of note books examination papers and his teaching were pointed out he was aggressive and spoken defyingly

raising his voice in the office room, Memos regarding this were given on 15.11.1994. 30.11.1994, 6.1.1995, 3.Z1995, 27.2.1995, 10.3.1995 and

31.3.1995. He refused to receive the Memos in the presence of teachers who acknowledged the fact.

Mr. Sundar Raj''s behaviour with one of the lady teachers was rather suspicious. Complaints have been brought to the notice of the

Management. Memo was given but refused to receive in front of the correspondent.

The above would show that the Petitioner Management had not terminated the six teachers by way of termination simplicitor nor discharge of

probation simplicitor. On the other hand, the above averments would show that the services of three of the teachers have been terminated on the

ground of alleged misconduct or commissions or omissions on their part. It is definitely not a termination simplicitor or termination of the probation

as sought to be suggested. The above passage is a clear admission on the part of the Petitioner and the Petitioner had taken into consideration of

those alleged misconduct or commissions or omissions on the part of the three teachers and therefore, it is clear that it is a punitive order of

termination without following the procedure. By no stretch of imagination, it may be called as termination simplicitor or, discharge of probation. In

this case, the probation period has already been completed. Be that so, on the very passage extracted, it is clear that the Petitioner had terminated

the services of three teachers by way of disciplinary proceedings and it is not the discharge of probation simplicitor. It is well settled that in cases

like this, it is always open to lift the veil and examine the nature of the proceedings.

In this case, the very averments set out in the affidavit sworn to by the Petitioner disclose that it is not a termination simplicitor, but it is punitive

dismissal of services without following minimum procedure. The School should have framed charges and afforded necessary opportunity to the

teachers to defend themselves and thereafter passed appropriate order. The cumulative effect on the very contents of the affidavit filed in support

of the writ petition would show the completion of probation and the basis and circumstances which prevailed with the writ Petitioner to terminate

the services of the teachers. As admitted by the Petitioner, it is not a termination simplicitor of probation, but it is a dismissal for alleged misconduct

with respect to the discharge of duties, etc. Hence, the point is answered against the writ Petitioner. The Appellate Authority is well founded in

passing the impugned proceedings.

As regards the power of Appellate Authority, with respect to which one of the contentions advanced, it is to be noticed that the Appellate

Authority called for the files from the Petitioner School and set aside the order of termination by a speaking order. The reasons assigned by the

Appellate Authority, namely, the third Respondent, to set aside the termination order is unassailable. The Appellate Authority had pointed out the

illegalities committed by the School in terminating the services of the teachers. The Appellate Authority, on the merits of the case, interfered with

the order of termination passed in respect of the contesting teachers. The Appellate Authority noted down six commissions on the part of the

School Management. As seen from the impugned proceedings, four commissions are not in dispute nor it is being challenged by the Petitioner. The

alleged commissions, which are deminimus, it is arbitrary on the part of the Petitioner Management to throw the Respondents for such deminimus

and absolutely insignificant commissions, even still assuming to be true. Stronger comment will be more appropriate against the Petitioner''s attitude.

The Appellate Authority also held that the termination of three teachers, who have completed the probations cannot be sustained as it is

contrary to the Regulations of the Matriculation School. The Appellate Authority pointed out that one teacher has been appointed as demonstrator

in the School, when no such post is existed. Another teacher has been appointed as Computer Science teacher for standards 6,7 and 8, which is

not one of the subjects prescribed in the syllabus for the lower class and this is a clear and calculated attempt on the part of the management to

throw out the teachers out of the employment.

Apart from that, there is a violation of agreement and the Code of the Conduct prescribed for the Matriculation Schools. The Appellate

Authority held that the action of the Petitioner is arbitrary and it could neither be accepted nor sustained and in that view of the matter, allowed the

appeal and set aside the order of termination in respect of three of the teachers. The three teachers are regular incumbents of the post of

Secondary Grade Assistant and it is not as if the post has been abolished nor it is the case of the Petitioner that there is no requirement for three

Secondary Grade Assistants. In the circumstances, it is clear and there is no doubt that the dismissal of the teachers, which was appealed had been

rightly set aside by the Appellate Authority. The proceedings of the Appellate Authority is not vitiated by any error apparent on the face of the

record nor it is vitiated by misdirection nor it is liable to be quashed in these writ petitions. It is clear that the School had not followed the minimum

procedure prescribed in the Regulations before terminating the service of teachers. The attitude of the school and its conduct is not only motivated

but also arbitrary, unfair and not commensurate with its avowed objects. In the circumstances, points 3 to 6 are answered in favour of the teachers

and against the school management.

The remaining two points could very well be taken up together for consideration. Before deciding the validity of Regulation 22(A), It is

essential to incorporate the very Regulation itself and also trace the very scheme of management of schools and the Regulations framed. Before

framing Regulations to the Matriculations Schools in the State of Tamil Nadu, the Matriculation Schools were directly under the control and

supervision of the University of Madras and it was affiliated to the University, which conducted the examinations and issued Matrioulation

Certificate. In respect of Non Matriculation Schools, on completion of school, as per the existing rules, the fees have to be paid to University for all

the students who have passed the Secondary School Leaving Certificate to recognise their certificate or accept the same as equivalent to

matriculation. The said University Regulations were in force in respect of the Matriculation Schools till 22.9.1980.

The Matriculation Schools in this State form a separate category with a separate identity and cater to the special educational needs of people.

The Matriculation Schools were affiliated to the University of Madras or such other University within whose area the schools were automatically

transferred to those universities for affiliation. The Madras University Syndicate, before 1980, decided that the university need no longer need

control Matriculation Schools and suggested that this responsibility of control of Matriculation Schools shall be taken away from the University and

the State Government may form a separate Board or organisation for that. The State Government after studying and on receipt of the report,

ordered that those School be transferred to the Controller or the Director of School Education and subsequently separate Board for Matriculation

Schools is ordered to be formed with the Director of School Education as its. Chairman for the purpose of issue of necessary directions and

guidelines by its G.O. Ms. 2816, Education dated 29.11.1976.

In the said Government Order, the terms and conditions and functions of the Board are also fixed. The said G.O. defines the terms and

conditions and functions of the various authorities. In respect of the Matriculation Schools, an Inspectorate was formed with necessary

infrastructure.

So far as the Matriculation schools are concerned, they are allowed to have their original structure, they were permitted to levy and collect fees

and they are not eligible for grant. The Matriculation Schools are allowed to adopt their own curriculum and syllabus and the students prepare for

public examinations. Matriculation Schools also were allowed to switch over to 10+2 pattern and with respect to higher secondary, they adopted

their own curriculum and syllabus. The Matriculation School examination, which was hitherto conducted by the University, is now being conducted

by the Director of Government Examinations at the end of 10th standard, so also at the end of 12th standard for all type of schools from 1979-80

onwards. In respect of Matriculation Schools, English alone is the medium of instruction and those schools are permitted to retain their own

structure.

The Board has been constituted for Matriculation Schools and on 18.2.1978, the Director of School Education presided over the Board

Meeting and with the consent of the entire Board of Matriculation Schools, the Code of Regulations was compiled and such Code was drafted by

eight members of the Committee formed for that purpose. The Board, after considering comments and suggestions of Matriculation Schools,

finalised the Code. After due consideration the Code was approved and notified. The Code in addition contains normal usual service conditions of

staff and with usual patterns.

The Code of Regulation for Matriculation Schools contains eleven chapters and they are:

(I) Introduction

(II) Recognition

(III) Admission and Withdrawal

(IV) School Regulation

(V) Financial side of Matriculation Schools

(VI) Staff

(VII) Leave Rules

(VIII) Registers

(IX) Building

(X) Closure of Schools

(XI) Disciplinary Regulation for students.

Annexure I to the Regulation is the Proforma, which contains particulars of Regulation for recognition of Matriculation School.

Annexure II contains prescribed application for opening of a Matriculation School in the State of Tamil Nadu. Annexure III contains prescribe

the application for recognition of school. At the end of Annexure III, declaration is appended, which declaration is required to the Matriculation

School seeking recognition to declare that the School Management shall abide by the conditions of recognition under Rule 10 of the provisions of

the Code for Regulation of Matriculation Schools.

The said declaration is extracted hereunder and it read thus:

On behalf of the management of the School, I hereby declare that all the conditions specified in the Rules and the departmental orders have been

fulfilled. I also declare that we shall abide by the conditions for recognition in Rule 10 and the provisions of the code of regulations for

Matriculation Schools.

Station: Signature of the Person duly

Date: authorised by the management

If the declaration is not signed, then the recognition applied for shall not be accorded. The annexure prescribes the qualifications for appointment of

teachers for Matriculation School both for teaching and non teaching staff. Annexure VII contains the conditions of service for teachers and other

persons employed in the Matriculation School. Annexure VIII is a prescribed format of agreement to be entered into between the Management

and the Teacher.

This agreement is in the standard format, which stipulates that the Teachers as well as the Management shall follow the Code of Conduct

prescribed for the Matriculation Schools. The agreement also provides that the Management shall have the power to terminate the service of the

teachers without notice for any or all of the following reasons.

Wilful neglect of duty, serious misconduct, gross insubordination, mental unfitness, suspension or cancellation of teachers certificate by the Director

of School education under the code of Regulations of Matriculation Schools.

b. With the three months notice or three months salary in lieu thereof for the following reasons:

Incompetence, Retrenchement, Physical Unfitness or any other good cause.

In the event of the Management decides to terminate the teacher for incompetency, he should be given three months notice or three months salary

in lieu thereof, which include retrenchment, physical unfitness or any other good cause. Thus substantial obligations and counter obligations have

been prescribed for either for the teacher or for the Managment. The teacher appointed temporally or to act on probation is liable to be terminated

without notice for all or any of the following reasons: Wilful neglect of duty, serious misconduct, gross insubordination ,mental unfitness, suspension

or cancellation of teachers certificate or two months notice or two months salary in lieu thereof for the following reasons: -

Incompetence, retrenchment, physical unfitness or any other good cause.

A perusal of the terms or stipulations set out in the agreement entered into between the Teachers and the Management would show that the

agreement takes each and every aspect which normally an employer and employee agree or stipulate.

As rightly highlighted by Mr. Chandru, learned Senior counsel appearing for the contesting teachers, the Petitioner had not challenged any of

the provisions of the Code of Conduct or other format except Regulation 22 (A). It is also admitted by the Petitioner school that they applied to

secure recognition in terms of the Regulation after signing the Declaration and satisfying with the requirement stipulated. The Petitioner also

undertakes that it shall follow the Code framed for Matriculation Schools. This undertaking is given by the Petitioner school by way of declaration.

It is rightly highlighted that having undertaken by way of declaration, the School Management seeks to wriggle out of the situation by challenging

the validity of the Regulation 22(A) alone. In other words, the School Management wants to follow the Rule of hire and fire even after its solemn

undertaking and without following the norms or regulation or conditions stipulated in the agreement as well the Code of conduct, such conduct on

the part of the Petitioner School, according to Mr. Chandru, deserves to be rejected. this Court cannot be but justified in considering the

contentions in that fashion.

All that this Court has to examine is as to whether Regulation 22(A) is unconstitutional or violative of Article 30(1) and 14 of the Constitution

of India and whether the conferment of power on an agency outside the school is valid in law or not?

Regulation 22(A) reads thus:

In all case of punishment except in cases of censure an appeal lies with the Director in respect of the Principal /Headmater/Headmistress. B.T.

Assistants and other teachers drawing B.T. scale of pay and for all other categories of staff including sic-teaching staff, the Inspector is the

appellate authority. An appeal shall lie with the Government against the orders passed by the director and similarly an appeal shall lie with the

Director against the order passed by the Inspector. If the appeal is made after two months from the receipt of orders of punishment it will be

considered as belated

As rightly pointed out, no other Regulation had been challenged nor any other stipulation contained in the Regulation or service agreement

entered into between the School Management and the teacher had been challenged by the Petitioner. On the facts of the case, as already pointed

out, the Regulation relating to Chapter VI as well as the stipulations contained in the agreement entered into between the School Management and

the teacher have not been challenged. There is no controversy in this aspect.

The Petitioner school was established and run by the Petitioner Congregation of the Sisters of the Cross Chavahod, Tiruchirappalli. Regulation

2(VIII) defines the expression ""Education Agency"" Education Agency means any person or body of persons which has established and is

administering or proposes to establish and administer such Matriculation Schools. In terms of Regulation 3, responsibility of the Management is

prescribed. The responsibility of maintenance and control of every recognised school shall vest in a governing body which shall be responsible for

the fulfilment of all the conditions upon which recognition is granted. The ultimate responsibility is on the Governing body. The Matriculation

Schools will be considered as a separate entity by itself. The Schools will continue to be fee-based and use English as medium of instruction. They

will continue to be free as hitherto to innovate with regard to their curriculum except for the last one year when they prepare students for the public

examination. The same Code shall apply to Higher Secondary Section of Matriculation School. It contains very many stipulations for grant of

permission to open a private Matriculation School or upgrade the existing schools or for grant of recognition and various other conditions. The

power to appoint teachers rests on the School Management. The Inspector has got power to visit the recognised Matriculation Schools during the

school hours. Chapter III contains the provisions for admission and withdrawal as well as the withdrawal of recognition.

It is repeatedly contended by the counsel for Respondents that there is no category as minority Matriculation Schools nor such minority

institution is contemplated in the Code. In other words, the claim of minority by the Petitioner is totally alien to the system of Matriculation Schools

as the conditions prescribed for starting Matriculation School by any one irrespective of religion or caste or creed are one and the same and they

are identical. Further, there could be no claim of linguistic minority in respect of Matriculation Schools as the medium of instruction is in English

only. The Matriculation Schools could have their own curriculum and it could collect fees and it could appoint any teachers, but in case of final

action, the school has to abide by the conditions contained in the Code and in the agreement. So also the teachers. The pattern is common for the

final year where the public examination is conducted. In respect of other years of study, it is open to the school to have its own curriculum of its

choice. As against the provisions contained in the Tamil Nadu Private Schools Regulation Act, which provides for minority as well as the non

minority institution, no such categorisation provided for in the Code of Conduct for Matriculation Schools. This unique feature shall not be lost sight

of.

It is pointed out that the very concept of minority, be it religious or linguistic, is totally alien to the Matriculation Schools in the State, as it is a

special type of institution, which could be established by any one providing sufficient infrastructure. The schools have to not only manage with their

own funds, but also should provide necessary infrastructure for starting and running the Matriculation School. There is a considerable force in the

contention raised by the learned Counsel for the Respondent that the very claim of minority status by the Petitioner is alien to the Matriculation

Schools and, therefore, such a claim made by Petitioner does not arise at all according to the Respondents.

However, the counsel for the Petitioner relies upon certain decisions of the Apex Court in support of his contention that the Petitioner, which is

a religious minority and when it establishes the Matriculation or other educational institution, it is entitled to claim the minority status and seek

protection under Article 30 of the Constitution as a religious minority. The contention of the Respondent that the claim of minority is alien to the

Matriculation system of school, according to Mr. Joseph, is a misconception and such contention cannot be sustained at all. The claim of minority,

either religious or linguistic minority in respect of Matriculation Schools may not significantly make any difference in this special type of schools.

When occasion arises this contention, a larger issue, requires to be decided.

It is contended by the learned Counsel for the Respondents that the Petitioner is estopped from challenging Regulation 22(A), as the Petitioner

- institution, while seeking for recognition of their Matriculation School or for opening of the Matriculation School, voluntarily declared that all the

conditions specified in the Regulations and Departmental Orders have been fulfilled and the Petitioner had further declared that it shall abide by the

conditions for recognition under Regulation 10 and the provisions of the Code of Regulation for Matriculation School. This, according to the

counsel for the Respondents, would mean that the Management of the Petitioner school had under taken to abide by the entire Code of

Regulations for Matriculation Schools, which includes Regulation 22(A) and, therefore, the Petitioner cannot go back and challenge that Regulation

22(A) as invalid or otherwise unenforceable. There is force in the contention advanced by Mr. Chandru in this respect. However, it is further

pointed out that the Petitioner has to abide by the undertaking given by it and it cannot wriggle out of the condition, which it had voluntarily

undertaken having secured the recognition.

Per contra, Mr. Jerome, learned Counsel for the Petitioner contended that the Petitioner could always challenge the validity as offending the

minority rights or anyone of the fundamental rights guaranteed by the Constitution. This contention is advanced on the basis that the claim of

minority is not alien to Matriculation Schools and requires consideration along with the other contentions.

In Frank Anthony Public School Employees'' Association Vs. Union of India (UOI) and Others, , a Division Bench of the Apex Court, after

analysing the earlier pronouncements, namely, In Re: The Kerala Education Bill, 1957. Reference Under Article 143(1) of The Constitution of

India, State of Kerala, etc. Vs. Very Rev. Mother Provincial, etc., The Ahmedabad St. Xavier''s College Society and Another Vs. State of

Gujarat and Another, with reference to the content and dimension of the fundamental right guaranteed by Article 30(i) of the Constitution to

religious and linguistic minorities held thus:

Thus, there, now, appears to be a general and broad consensus about the content and dimension of the Fundament Right guaranteed by Article

30(i) of the Constitution. The right guaranteed to religious and linguistic minorities by Article 30(1) is two fold, to establish and to administer

educational institutions of their choice, The key to the Article lies in the words "" of their own choice"", these words indicate that the extent of the

right is to be determined, not with reference to any concept of State necessity and general societal interest but with reference to the educational

institutions themselves, that is, with reference to the goal of making the institutions ""effective vehicles of education for the minority community or

other persons who resort to them. It follows that regulatory measures which are designed towards the achievement of the goal of making the

minority educational institutions effective instruments for imparting education cannot be considered to impinge upon the right guaranteed by Article

30(i) of the Constitution. The question in each case is whether the particular measure is, in the ultimate analysis, designed to achieve such goal,

without of course nullifying any part of the right of management in substantial measure.

In the same pronouncement, it has been laid down that the management of a minority educational institution cannot be permitted under the guise of

fundamental right guaranteed by Article 30(i) of the Constitution to oppress or exploit its employees any more than any other private employee. In

that context, it has been held thus:

the excellence of the instruction provided by an institution would depend directly on the excellence of the teaching staff, and in turn, that would

depend on the quality and the contentment of the teachers. Conditions of service pertaining to minimum qualifications of teachers, their salaries,

allowances and other conditions of service which ensure security, contentment and decent living standards to teachers and which will consequently

enable them to render better service to the institution and the pupils cannot surely be said to be violative of fundamental right guaranteed by Act.

30(i) of the Constitution. The management of a minority Educational Institution cannot be permitted under the guise of the fundamental right

guaranteed by Article 30(1) of the constitution, to oppress or exploit its employees any more than any other private employee. Oppression or

exploitation of the teaching staff of an educational institution is bound to lead, inevitably, to discontent and deterioration of the standard of

instruction imparted in the institution affecting adversely the object of making the institution an effective vehicle of education for the minority

community or other persons who resort to it. The management of minority institution cannot complain of invasion of the fundamental right to

administer the institution when it denies the member of its staff the opportunity to achieve the very object of Article 30(1) which is to make the

institution an effective vehicle of education.

In the said Frank Anthony Public School Employees Association case, certain provisions of the Delhi School Education Act were challenged.

Section B(b) of the said Act, which provides for an appeal u/s 11 is against the orders of termination, dismissal or removal and providing a right of

appeal in the limited class of cases, namely, those of dismissal, removal or reduction in rank and any of other dispute between employee and the

management. In that context it was held that provision for an appeal is a reasonable provision. In respect of Section 8(4), which provides for prior

approval of Director for suspension of school staff also, it has been held to be reasonable, and which applies to even unaided minority schools as it

is reasonable. Hence, a remedy of appeal or limited right of appeal and the manner in which the appellate power is required to be exercised make

the provision, namely. Regulation 22(A), cannot be held to be arbitrary or violative of Article 30(1).

Mr. Jerome also relied upon the very same decision in Frank Anthony Public School Employees Association case in support of his contention.

this Court is of the considered view that the very pronouncement of the Apex Court is substantially against the contention advanced by Mr.

Jerome.

In Manohar Harries Walters v. Basel Mission Higher Education Centre, Dharwad and Ors. reported in 1992 (2) (Supp.) SCC 301, the

contention that the school being a minority institution, an appeal provision against the orders of dismissal against Section 8 of the Karnataka Private

Educational Institutions Act, 1975, was the subject matter of consideration. In the said case, a lecturer in a minority institution against whom

charges were levelled and dismissed by the School Management preferred an appeal u/s 8 of the Karnataka Private Education Institutions Act,

1975. The Appellate Authority directed the Respondent institution to reinstate the Appellant. As against the said order directing reinstatement, the

minority institution moved the High Court under Article 226 of the Constitution contending that the provisions of the Act is not applicable and the

Karnataka High Court, both the single Judge as well as the Division Bench took the view that the Act has no application and the provision of

appeal will not apply. Being aggrieved, the said teacher preferred an appeal before the Apex Court. The Apex Court, after considering the Frank

Anthony''s case as well as the All Saints High School v. Government of Andha Pradesh and All Saints High Bihar Christian Schools Association

and Anr. v. State of Bihar as well as Osmania University Teachers Association held that such an appeal is maintainable and the appeal in no way

interferes with the right guaranteed to minority institutions by Article 30(1) of the Constitution. In that context it has been held thus:

Since the decision delivered by the High Court, much water has flown under the bridge. this Court in the case of Frank Anthony Public School

Employees Association v. Union of India has held that the right guaranteed to minority institutions by Article 30(1) of the Constitution is not

invaded merely because a Tribunal is constituted under an Act to hear appeals against the order of dismissal, removal or reduction in rank of an

employee in the service of a minority institution. The same view is reiterated by another Division Bench of this Court in Y. Theclamma v. Union of

India. There the Court so pointed out that the view then in Frank Anthony Public School case is based on the view taken by the majority in All

Saints High School v. Government of A.P. and there was no conflict between the Frank Anthony Public School case and Lily Kurian v. Sr.

Lewina decided by a Constitution Bench of this Court. Two subsequent decisions of this Court, viz., All Bihar Christian Schools Association v.

State of Bihar and Osmania University Teachers Association v. State of Andhra Pradesh have also reiterated the same view

In this view of the matter the impugned decision of the High Court has to be set aside.

This pronouncement squarely applies to the facts of the present case. The further contention that an appeal to outside Authority is a violation of

Article 30(1) of the Constitution also deserves to be rejected.

One other incidental contention that was raised being in terms of Regulation 22(A) appeal as provided to the Director or the Administrative

Authority, who is not a judicial forum, but an administrative Authority and, therefore, it is invalid. Such a contention was advanced on the basis of

certain observations made by the Apex Court in Front Authony Public School Employees Association case. A later Division Bench of the

Supreme Court in All Bihar Christian School Association and Anr. v. State of Bihar and Ors. reported in 1998 (1) SCC 206 had occasion to

consider the validity of statutory measures regulating the standards and excellence of minority institutions with reference to Article 30(1) and held

that Sections 3 and 18(3) of Bihar Non-Government Secondary Schools taking overall management and control has been held to be

constitutionally valid. In the said pronouncement it was held that an unaided minority institution is not immune from operation of general laws. In the

said pronouncement, the Apex Court held thus:

In view of these decisions it is now well settled that minorities based on religion or language, have fundamental freedom to establish and manage

education institutions of their own choice, but the State has right to provide regulatory provisions for ensuring educational excellence conditions of

employment of teaches, ensuring health, hygiene and discipline and allied matters. Such regulatory provisions do not interfere with the minorities

fundamental right of administering their educational institutions: instead they seek to ensure that such institution is administered efficiently ,and that

students who come out of minority institutions after completion of their studies are well equipped with knowledge and training so as to stand at par

in their avocation in life without any handicap. If regulatory provisions indirectly impinge upon minorities right of administration of their institution, it

would not amount to interference with the fundamental freedom of the minorities as the regulatory provisions are in the interest of the minority

institutions themselves. If the minority institutions themselves. If the minority institution seeks affiliation or recognition from the State or Education

Board the State has the right to prescribe syllabi and terms and conditions for giving such affiliation or recognition or extending grants in aid.

Minority institutions may be categorised in three classes, (i) education institutions which neither seek aid nor recognition from the State, (ii)

institutions that seek aid from the State, and (iii) educational institutions which seek recognition but not aid. Minority institution which fall in the first

category are free to administer their institution in the manner they like the State has no power under the Constitution to place any restriction on their

right to administration. This does not mean that an unaided minority institution is immune from operation of general laws of the land. A minority

institution cannot claim immunity from contract law, tax measures, economic regulations, social welfare legislation, labour and industrial laws and

similar other measures which are intended to meet the need of the society. But institutions falling within the second and third categories are subject

to regulatory provisions which the State may impose. It is open to the State to prescribe conditions for granting recognition or disbursing aid. These

conditions may require a minority institutions to follow prescribed syllabus for examination, courses of study they may further regulate conditions of

employment of teachers, discipline of students and allied matters. The object and purpose of prescribing regulations is to ensure that minority

institutions do not fall below the standard of excellence expected of an educational institution and they do not fall outside the mainstream of the

nation. A minority institution must also be fully equipped with educational excellence to keep in step with others in the State: otherwise the students

coming out of such institutions will not be fully equipped to serve the society or the nation. While the State has every right to prescribe conditions

for granting recognition or disbursing aid, it cannot under the guise of that power prescribe onerous conditions compelling the minority institutions to

surrender their rights of administration to the government. On the one hand the State is under an obligation to ensure that education standards in the

recognised institutions must be according to the need of the society and according to standards which ensure the development of standards which

ensure the development of personality of the students in turning out to be civilized, useful members of the society, and to ensure that the public

funds disbursed to the minority institutions are property utilised for the given purpose. On the other hand the State has to respect and honour

minority rights under Article 30(1) in the matter or establishing and carrying on the administration of institution of their choice. In order to reconcile

these two conflicting interests the State has to strike a balance and statutory provisions should serve both the objects and such statutory provision

have to withstand the test of Article 30(1) of the Constitution. These principles have to be borne in mind in considering the question of validity of

statutory provisions relating to minority educational institutions.

While examining Section 18 of the Bihar Act, and while upholding the right of the minority institution to remove, dismiss, terminate or discharge

a teacher from service is an essential attribute of Management''s right, it has been held that provision of appeal to an outside administrative agency

is not violative of Article 30(1) of the. Constitution. Therefore, it follows that Regulation 22(A) is not violative of Article 30(1) of the Constitution

as sought to be contended by Mr. Jerome.

The learned Counsel further contended that insofar as Regulation 22(A) had not prescribed guidelines or principles to govern the exercise of

power conferred therein, Regulation 22(A) confers arbitrary and unreasonable powers and, therefore, it is unenforceable. In this respect, the

learned Counsel for the contesting Respondents rightly relied upon the decision of the Apex Court in Workmen of Meenakshi Mills Ltd. and

Others Vs. Meenakshi Mills Ltd. and Another, , where an identical contention had been repelled by the Apex Court while holding thus:

It has been urged on behalf of the employers that Sub-section (2) of Section 25-N does not prescribe any guidelines or principles to govern

the exercise of the power that has been conferred on the appropriate government or the authority in the matter of grant or refusal of permission for

retrenchment and in the absence of such guidelines of principles, it will be open to the appropriate Government or authority to take into account

matters having no bearing or relevance to the legitimate need of the employer to reorganise his business and which may even be opposed to such

need and it has been pointed that it would be permissible to pass the order by taking into consideration the state of unemployment in the industry or

the state of unemployment in the State. It has also been submitted that the requirement that reasons should be recorded in the order that is passed

by the appropriate Government or authority would not provide any protection against arbitrary action because in the absence of principles

governing the exercise of the power, there is no touch-stone to assess the validity of those reasons. We find no substance in this contention. We

have already dealt with the nature of the power that is exercised by the appropriate Government or the authority while refusing or granting

permission under Sub-section (2) and have found that the said power is not purely administrative in character but partakes exercise of a function

which is judicial in nature. The exercise of the said power envisages passing of a speaking order on an objective consideration of relevant facts

after affording an opportunity to the concerned parties. Principles or guidelines are insisted with a view to control the exercise of discretion

conferred by the stature. There is need for such principles or guidelines when the discretionary power is purely administative in character to be

exercised on the subjective opinion of the authority. The same is, however, not true when the power is required to be exercised on objective

considerations by a speaking order after affording the parties an opportunity to put forward their respective points of view. That apart, it cannot be

said that no guidance is given in the Act in the matter of exercise of the power conferred by the Sub-section (2) Section 25-N.

In the light of the said pronouncement, the above contentions advanced by Mr. Jerome challenging Regulation 22(A) deserve to be rejected.

In All Saints High School v. The Government of Andhra Pradesh reported in 1990 (2) SCC 478, it was held that it is open to the Government

to frame Rules and Regulations governing the conditions of service of teachers in order to secure their permanency of service to appoint a higher

Authority armed with sufficient power to see that the said Rules are not violated or that the members of the staff are not arbitrarily treated or the

innocents victimised. In such a case, the purpose is not to interfere with the internal administration, but it is merely to meet the excellence and

efficiency of education because a really good education could be received only if the tone and temper of the teachers are so armed so as to make

them teach the students with devotion and dedication.

In State of Tamil Nadu and Others Vs. St. Joseph Teachers Training Institute and Another, the Apex Court emphasised that the right of

minority under Article 30 is subject to regulatory provision for ensuing educational excellence and minority institution, which do not seek

recognition are free to run according to their own choice and if such an institution seeks recognition from the state, it has to comply with the

prescribed conditions for granting recognition.

In the light of the above discussions, points 1 and 2 are answered against the writ Petitioner holding that Regulation 22(A) is not violative of

Articles 30(1) or 14 of The Constitution. The conferment of appeal powers on the 3rd Respondent, an outside agency is not invalid.

As regards the third contention, this Court holds that the impugned termination of teachers by the Petitioner is obviously punitive and it is not a

termination simplicitor of a probationer and the contention to the contra cannot be countenanced. On the 4th point, this Court holds that the

proceedings of the 3rd Respondent, appellate authority, is not liable to be interfered in exercise of powers of judicial review under Article 226 as

there is no illegality in the order passed by the 3rd Respondent exercising powers of appeal and the said exercise is warranted by the facts of the

case and as well as by the very conduct of the writ Petitioner.

On the 5th point, this Court holds that the 3rd Respondent has the jurisdiction to entertain an appeal. On the 6th point this Court holds that the

order passed by the 3rd Respondent is not liable to be interfered as in no way it suffers with error apparent on the face of record nor it is vitiated

by material misdirection or illegalities. On the other hand, the order of termination, this Court hastens to add, had been set aside rightly as it is an

ex-facie, arbitrary and punitive order of dismissal. Hence, the order passed by the 3rd Respondent is not liable to be interfered on any one of the

grounds advanced by the learned Counsel for the Petitioner.

In the result, the writ petitions are dismissed, but without costs. Consequently, connected W.M.P.S. are also dismissed.