·
The
purpose of both the article is to protect the interest of minorities but the
scope of articles is different.
·
While
article 29(1) is not confined to minorities, but all sections of citizens who
have a distinct language, script or culture article 30(1) is applicable only to
the minorities.
St Xavier College v State
of Gujarat
·
Gujarat University imposed following conditions
on every college affiliated to university
o
One nominee in governing body by vice chancellor
of university
o
If college takes any action against any teacher,
suspend or remove, no such action can be taken by any member of staff except
for approval of vice chancellor
o
If any dispute arises between the management of
college and teaching staff such dispute shall be referred to arbitration and
the adjudicator will be the nominee of vice chancellor
·
Court held that these provisions are
inapplicable to a minority institute rights. However minority institutes under Article 30(1) were not free
from regulation and regulatory measures necessary to ensure orderly, efficient
and sound administration. The court decided that the minority institute possess
the following rights:-
o
Right to choose the personnel of the members of
Governing Body
o
Right to admit students of their choice
o
Right to appoint teachers
o
Right to take disciplinary action against the
staff and students
o
Right to use property and assets for the benefit
of the institution.
·
The court also held that minority institutes are
subject to the following:-
o
Regulations relating discipline, health,
sanitation, morality, public order, observance of labour standards, syllabi,
courses of study, qualification of teachers are permissible as they promote the
excellence of the institution.
o
Minority institutions can also be required to
follow general laws relating to contract, industrial laws, norms of natural
justice and norms of fair employment.
·
Court also held that no regulations could be
imposed on minority institutions on grounds of national interest.
Frank Anthony Public School Employees Association v Union of India
·
Frank Anthony Public School was governed by
Delhi education act, Section 12 of which had provision regarding service
conditions of the teachers
·
Pay and allowances given to teachers of private
schools whether aided or unaided shall not be less than their counterparts in
government schools.
·
Frank Anthony Public School Employee Association
sought revision of their salary so as to seek parity in income; also all
teachers teaching for same work should get same salary on basis of equality
enshrined in Article 14
·
Respondent contended that they are a reputed
school and charge very less fee and hence cannot afford to pay the same salary
and they will have to shut if they have to pay same salary
·
Court held that right of employees to get equal
salary was violated and payment of salary to a teacher was not part of
administration and hence article 30 was not violated
Kerala Education Bill Re. (1957)
·
The right conferred on minorities to establish education
institutions of their choice doesn’t mandate that religious minorities need to
establish schools that impart teaching of their religion, or linguistic
minorities schools that teach their language.
·
It leaves
the choice up to the minorities to determine what kind of schools they need in
order to preserve their religion, language, or culture, and in order to give a
thorough general education to their children.
·
Establishment can also involve recognition and
affiliation of an educational institution. Affiliation and recognition cannot
be denied or subjected to conditions that would rob the minorities’ right under
Art. 30(1) of its substance.
·
An institution established by a minority and
receiving aid from the state would not lose its minority character by admitting
members of any other community.
·
The
right conferred on religious and linguistic minorities to administer
educational institutions of their choice, though couched in absolute terms, is
not free from regulation.
St. Stephen’s College v University of Delhi
·
St. Stephen had admission procedure different
from Delhi University and used to conduct an oral interview
·
Further seats were reserved for Christians in
the college
·
Delhi Students Union filed a writ petition
contending that as the college was state aided college it cannot deny students
on basis of religion (Article 29(2))
·
Court acknowledged that St Stephens is a
minority institution and right to administer institute includes right to admit
students of own preference
·
Court also took into consideration that St.
Stephens was also takes funding from government and since it is an aided
institute it cannot deny students admission to non-minority student on basis of
religion
·
Court then held that St. Stephens can reserve
seats for minority students not exceeding 50%
TMA Pai Foundation v. State Of Karnataka
·
Held education is an occupation under Article
19(1)(g) of constitution
·
Under article 26 every religious denomination
has the right to establish educational institution since education is a
charitable organization
·
Minority has an additional right under Article
30(1) to establish an educational institution of their choice
·
Unaided private schools (minority or not) cannot
be compelled to follow reservation policy of the state
·
Unaided institute can have any reasonable fee
structure and state cannot interfere with it
·
Defined
Minority - Minorities
would constitute numerically less than 50% of the population of a State.
Minority to be determined on basis of population in a state and not whole of
nation
·
Regulations can be framed in national interest and such regulations
should equally apply to minority institutions.
·
Rights of
Unaided Minority Institutes:-
o
These institutions may have their own admission
procedure but such method or procedure should not tantamount to
mal-administration.
o
Such institutions have right to admit students
without interference of the State so long as it is on transparent basis and
merit is adequately taken care of.
o
In such institutions regulations are permissible
only for ensuring educational standards and maintenance of academic excellence.
Qualifications may be prescribed for appointment of teachers.
o
Such institutions have to comply with the
conditions of recognition and affiliation
o
State
cannot interfere in appointment of teachers and other staff. However a rational
procedure should be adopted for selecting teachers by the management itself.
There cannot be any external controlling agency in this matter as they pertain
to the autonomy of the minority institution.
o
For redressing the grievances of employees in
case of punishment or termination of services a tribunal has to be evolved to
be presided over by a judicial officer of the rank of District Judge.
o
These institutions can have their own reasonable
fee structure, Fees to be charged by an unaided minority institution cannot be
interfered with by the State but capitation fee cannot be charged’
·
Rights of
Aided Minority Colleges:-
o
Such institutions can admit minority students as
well a reasonable number of non-minority students for balancing the rights
under Article 30(1) and 29(2).
o
The State government shall notify the percentage
of non-minority students to be admitted. Inter-se merit amongst the applicants
belonging to minority groups should be ensured. Common Entrance Test (CET) by
State agency for both minority and non-minority students for admission to
professional Colleges should be held.
o
Regulations governing service conditions of
teachers and other staff can be framed by the State but without interfering
with overall administrative control of management of the minority over the
staff.
o
Appropriate Tribunal to be presided over by a
Judicial Officer of the rank of District Judge for deciding disputed between
management and employees should be established.
o
All citizens have right to establish and
administer educational institutions under Article 19(1) (g) and 26 (a) subject
to conditions of Article 19(6) and 26 but the minorities have additional right
under Article 30(1)
·
Not Good
law - Article 15(5) (Inserted by 93rd Amendment) -
State by law can provide for reservation in
private (aided or unaided) institutions but minority unaided institute
can refuse to provide reservation
Secretary, Malankara Syrian Catholic
College v T. Jose
·
Article 30 is itself representative of the national
interest. Any law or state action that overlooks the rights of the minorities
cannot be deemed in the national interest.
·
If a
regulation in the name of national interest completely extinguishes the
minority’s right to establish and administer their own institution, then their
rights under 30(1) will triumph. There should be a balance between national
interest and rights of the minorities and national interest cannot be used to
wipe out minority rights.
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