Full Judgment Text
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PETITIONER:
BIHAR STATE MADARASA EDUCATION BOARD,PATNA, THROUGH ITS CHAI
Vs.
RESPONDENT:
MANAGING COMMITTEE OF MADARASA HANFIAARABIC COLLEGE JAMALIA
DATE OF JUDGMENT05/12/1989
BENCH:
SINGH, K.N. (J)
BENCH:
SINGH, K.N. (J)
KASLIWAL, N.M. (J)
CITATION:
1990 AIR 695 1989 SCR Supl. (2) 399
1990 SCC (1) 428 JT 1989 Supl. 368
1989 SCALE (2)1468
ACT:
Bihar State Madarasa Education Board Act, 1982: S.
7(2)(n)-Board’s power to dissolve managing committee of
Madarasa institution-Whether ultra vires Article 30(1) of
the Constitution.
Constitution of India, 1950: Article 30(1)--Bihar
Madarasa Education Board--Power to dissolve managing com-
mitof Madarasa institution--Constitutionality of--S.
7(2)(n), Bihar State Madarasa Education Board Act, 1982.
HEADNOTE:
Section 7(2)(n) of the Bihar State Madarasa Education
Board Act, 1982 confers power on the State Madarasa Educa-
tion Board to dissolve the managing committee of an aided
and recognised Madarasa institution. The committees of
management of the respondent institutions established by the
Muslim minority community failed to comply with the direc-
tions issued by the Board with regard to payment of salary
to teachers, whereupon the Board in exercise of its power
under s. 7(2)(n) of the Act dissolved the said committees.
The respondents filed writ petitions under Article 226
of the Constitution assailing s. 7(2)(n) of the Act as
violative of Article 30(1) on the ground that it interfered
with their right of management of institutions. The High
Court declared s. 7(2)(n) unconstitutional- It, however,
observed that the majority of members of the Madarasa Educa-
tion Board and its Chairman may not belong to minority
community, therefore, the Board’s constitution will not be
in consonance with the minorities constitutional right under
Article 30 of the Constitution.
Dismissing the appeals by the Board, the Court,
HELD: 1. Article 30(1) of the Constitution protects the
right of minorities to establish and administer educational
institutions of their choice. The rights so granted are,
however, not absolute. Minorities have no right to malamin-
ister. The State has power to impose regula-
400
tions made in the interest of efficiency of institution’s
discipline, health, sanitation and public order even though
such regulations may indirectly impinge on the exclusive
right of administration and management of the institution.
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The State has, however, no power to completely take over the
management of a minority institution under the guise of
regulating the educational standards by superseding or
dissolving managing committee or by appointing ad hoc com-
mittees in place thereof. [403D-F; 404C-E]
In the instant case, s. 7(2)(n) of the Bihar State
Madarasa Education Board Act, 1982 in so far as it provides
for dissolution of the managing committee of a Madarasa is,
clearly violative of constitutional right of minorities
under Article 30(1) of the Constitution. [404E-F]
In re Kerala Education Bill 1957, [1959] SCR 995; Sidha-
rajbhai v. State of Gujarat, [1963] 3 SCR 837; State of
Kerala v. Very Rev. Mother Provincial etc., [1971] 1 SCR
734; Ahmedabad St. Xaviers College Society v. State of
Gujarat, [1975] 1 SCR 173; Lilly Kurian v. Lawina, [1979] 1
SCR 820 and All Bihar Christian Schools Assn. v. State of
Bihar, [1988] 1 SCC 206, referred to.
2. Article 30(1) of the Constitution does not contem-
plate that an autonomous Educational Board entrusted with
the duty of regulating efficiency in the aided and recog-
nised minority institutions, should be constituted exclu-
sively by persons belonging to the minority community. In
the instant case, the constitution of the Board under s. 3
of the Act ensures that its members are only those who are
interested in teaching and research in Persian, Arabic and
Islamic studies. This provision fully safeguards the inter-
est of Madarasa of the Muslim community. The observations
made by the High Court are contrary to the scope of Article
30(1) of the Constitution. [404H; 405A, B-C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 463
and464 of 1986.
From the Judgment and Order dated 6.11. 1984 of the
Patna High Court in Civil Writ Jurisdiction Case No. 3489 of
1981 & 601 of 1982.
M. Qamaruddin and Mrs. M. Qamaruddin for the Appellant.
S.N. Misra, M.K. Jha and P.C. Kapur for the Respondent.
The Judgment of the Court was delivered by
401
SINGH, J. These two appeals are directed against the
judgment and order of High Court of Patna dated November 6,
1989, quashing the order of the Bihar State Madarasa Educa-
tion Board dissolving the Managing Committee of the respond-
ent’s institution.
The State Legislature of Bihar enacted the Bihar State
Madarasa Education Board Act (Act 32 of 1982) providing for
the constitution of an autonomous Board for development and
supervision of Madarasa education in the State of Bihar.
"Madarasa" as defined by Section 2 means an educational
institution providing instructions in Islamic, Arabic and
Persian studies and recognised as such by the Board. The
’Board’ means the Board established under Sec. 3 of the Act.
Section 3 provides for the constitution of State Madarasa
Education Board which is a body corporate with perpetual
succession and a common seal. The Board consists of a Chair-
man appointed by the State Government, Director of Education
(Incharge of Oriental Education), Director, Institution of
Post-graduate Studies and Research in Arabic and Persian,
Patna, the Principal, Madarasa Islamia, Shamsul Hoda, Patna,
Chairman, Bihar Sunni Wakf Board, Patna, Chairman, Bihar
Shia Wakf Board, Patna, two members of the State Legislature
nominated by the Government having interest in Madarasa
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Education or Islamic studies, two senior teachers of recog-
nised Madarasa nominated by the State Government, and three
other members nominated by the State Government who have
interest in Madarasa education or Islamic studies. The Board
is invested with powers and functions to provide for in-
struction and research in Arabic, Persian and Islamic stud-
ies and to advise the State Government on all matters relat-
ing to Madarasa education. The Act empowers the Board to
direct, supervise and control Madarasa education, to grant
recognition to Madarasas in accordance with the regulations
framed by it, to conduct different Madarasa examination, to
publish results, to make regulations prescribing conditions
of employees of the Board, to provide for the constitution
of the Managing Committee, to constitute academic committee,
recognition committee, examination committee, and for carry-
ing on its powers and functions in regulating the education
in Madarasa institutions. The Board is headed by a Chairman
nominated by the State Government under Sec. 10(2) of the
Act, it lays down that no person shall be eligible for
appointment as Chairman unless he holds adequate administra-
tive experience under the Central or State Government and he
has teaching or research experience for not less than 10
years in post-graduate educational institutions or he is
regarded scholar in Arabic, Persian, Islamic studies and he
is interested in Madarasa education. The Board as constitut-
ed by the
402
Act is an autonomous body entrusted with the duty to grant
recognition, aid, supervise and control the academic effi-
ciency in the Madarasa institutions, aided and recognised by
it. The members of the Board consist of those persons who
are connected with or interested in the teaching and re-
search of Arabic, Persian and Islamic studies, and interest-
ed in the Madarasa education. The Legislature has enacted
the Act with the primary purpose of providing an autonomous
educational authority for regulating the efficiency of
Madarasa institutions where studies are carried on in Ara-
bic, Persian and Islamic studies.
The Hanfia Arabic College Jamalia and Madarasa Shamsul
Uloom the respondent’s institutions are Madarasa institu-
tions aided and recognised by the Board under the provisions
of the Act, as such the respondent’s institutions are sub-
ject to the provisions of the Act and the regulations framed
by the Board in matters relating to their management and
administration. The Committees of Management of the two
respondent institutions failed to comply with the directions
issued by the Board with regard to payment of salary to
teachers, whereupon the Board in exercise of its power under
Section 7(2)(n) of the Act dissolved the Managing Committee
of the respondent’s institution and appointed ad hoc Commit-
tee to manage the institutions. The outgoing Managing Com-
mittee of the respondent’s institutions and some of the
affected members of the Committee filed writ petitions
before the High Court of Patna under Article 226 of the
Constitution challenging the Order of the Board, dissolving
the Committee of Management and appointing ad hoc Committee.
Before the High Court, the respondents submitted that Sec.
7(2)(n) of the Act which confers power on the Board to
dissolve Managing Committee of a Madarasa is violative of
Article 30(1) of the Constitution as it interfered with
their right of management of institutions. The High Court
upheld the respondent’s plea and declared Sec. 7(2)(n)
unconstitutional as it confers power on the Board to dis-
solve Committee of Management of a Madarasa. The Board has
preferred this appeal by leave against the aforesaid judg-
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ment of the High Court.
Section 7(2)(n) reads thus:
"7. Power and functions of the Board: (1) It
shall be the duty of the Board to provide for
instruction and research in Arabic, Persian
and Islamic studies and such other branches of
knowledge including vocational courses and
training which the Board thinks fit and to
advise the State Government on all other
matters relating to Madarasa Education.
403
(2) Subject to the provisions of this Act and
the Rules and Regulations made thereunder the
Board shall have the power to direct, super-
vise and control Madarasa Education and in
particular have the powers
(n) To get the Managing Committee of Madarasas
constituted in a manner such as to include the
Head Maulvi, two guardians’ representatives
and one member nominated by the Board and two
other persons interested in Madarasa Education
or Islamic studies to be composed by the above
seven members. The power to dissolve the
Managing Committee shall vest in the Board."
The above provision confers power on the Board to pro-
vide for constitution and dissolution of Managing Committee
of a Madarasa. There is no dispute that the respondent
Madarasas are educational institutions established by the
Muslim minority community. Article 30(1) of the Constitution
protects the right of minorities to establish and administer
educational institutions of their choice. The Article in
terms grants all minorities two rights (i) the right to
establish and (ii) the right to administer educational
institution of their choice. The rights so granted are,
however, not absolute, a minority institution obtaining
financial aid and recognition is subject to reasonable
restrictions to ensure excellence in the institution. While
minorities have a constitutional right to establish and to
administer educational institutions of their choice, they
have no absolute right to maladminister, the State has right
to impose regulations made in the interest of efficiency of
institution’s discipline, health, sanitation and public
order even though such regulations may indirectly impinge on
the exclusive right of administration and management of the
institution. A minority institution seeking aid and recogni-
tion must be subject to regulatory provisions which are
reasonable and consistent with Article 30(1) of the Consti-
tution. A minority institution which does not seek aid or
recognition from the State or the Education Board need not
be subject to regulatory provisions. These principles have
been settled by this Court in re Kerala Education Bill 1957,
[1959] SCR 995, Sidharajbhai v. State of Gujarat, [1963] 3
SCR 837, [1971] 1 SCR 734, [1975] 1 SCR 173, [1979] 1 SCR
820 and [1988] 1 SCC 206.
The question which arises for consideration is whether
Section 7(2)(n) which confers power on the Board to dissolve
the managing
404
committee of an aided and recognised Madarasa institution
violates the minorities constitutional right to administer
its educational institution according to their choice. This
Court has all along held that though the minorities have
right to establish and administer educational institution of
their own choice but they have no right to maladminister and
the State has power to regulate management and administra-
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tion of such institutions in the interest of educational
need and discipline of the institution. Such regulation may
have indirect effect on the absolute right of minorities but
that would not violate Art. 30(1) of the Constitution as it
is the duty of the State to ensure efficiency in educational
institutions. The State has, however, no power to completely
take over the management of a minority institution. Under
the guise of the regulating the educational standards to
secure efficiency in institution, the State is not entitled
to frame rules or regulations compelling the management to
surrender right of administration. In State of Kerala v.
Very Rev. Mother Provincial etc., [1971] I SCR 734, Section
03(1) of the Kerala University Act, 1969 which conferred
power on the Government to take over the management of a
minority institution on its default in carrying out the
directions of the State Government was declared ultra vires
on the ground that the provisions interfered with the con-
stitutional right of a minority to administer its institu-
tion. Minority institutions cannot be allowed to fall below
the standard of excellence on the pretext of their exclusive
right of management but at the same time their constitution-
al right to administer their institutions cannot be com-
pletely taken away by superseding or dissolving managing
committee or by appointing ad hoc committees in place there-
of. In the instant case Section 7(2)(n) is clearly violative
of constitutional fight of minorities under Article 30(1) of
the Constitution in so far as it provides for dissolution of
managing committee of a Madarasa. We agree with the view
taken by the High Court.
We have upheld the view taken by the High Court with
regard to the validity of Section 7(2)(n) of the Act but we
do not agree with the observations made by the High Court in
paragraphs 9 and 10 of its judgment with regard to the
constitution of the Board and appointment of its Chairman.
The High Court has observed that the majority of the members
of the Board and its Chairman may not belong to minority
community, therefore the Board’s constitution will not be in
consonance with the minorities constitutional right under
Article 30 of the Constitution. In our opinion, the view
taken by the High Court is not correct. Article 30(1) does
not contemplate that an autonomous Educational Board en-
trusted with the duty of regulating the aided and
405
recognised minorities institution, should be constituted
only by persons belonging to minority community. Article
30(1) protects the minorities right to manage and administer
institutions established by them according to their choice,
but while seeking aid and recognition for their institutions
there is no constitutional obligation that the Board grant-
ing aid or recognition or regulating efficiency in minority
institution should consist of members exclusively belonging
to minority communities. In the instant case the constitu-
tion of the Board under Section 3 of the Act ensures that
its members are only those who are interested in teaching
and research of Persian, Arabic and Islamic studies. This
provision fully safeguards the interest of Madarasa of the
Muslim community. We therefore hold that observations made
by the High Court in paragraphs 8 and 9 of its judgment are
contrary to the scope of Article 30(1) of the Constitution.
With these observations we agree with the view taken by
the High Court in quashing the order of the Board dissolving
the managing committee of the respondent’s institutions and
appointing ad-hoc committee. The appeals fail and are ac-
cordingly dismissed. There will be no order as to costs.
P.S.S. Appeals
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dismissed.
406