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Frank Anthony Public School Employees Association Vs. Union of India & Ors.


Authored by - Prachi Ganeriwala

Keywords - Minority, un-aided, fundamental rights, employees.


Frank Anthony Public School Employees Association Vs. Union of India & Ors

Citation: 1987 AIR 311, 1987 SCR (1) 238

Date of Judgment: 17 November 1986

Bench: EDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA (J) OZA, G.L. (J)


Facts


Frank Anthony Public School is a recognized unaided minority school within the meaning of Sections 2(x) read with 2(e), 2(o) and 2(t) of the Act. In the matter of emoluments and conditions of service such as leave etc., teachers and employees of the Frank Anthony Public School lag far behind the teachers and employees of Government schools. Several other conditions of service of teachers and employees also compare unfavorably with the conditions of service of teachers and employees of Government Schools. However, for Section 12 and if Sections 8 to 11 were applicable to them, they would at least be as well off as teachers and other employees of Government Schools.


The Petitioner’s association, therefore, has filed the writ petition under Article 32 of the Constitution, seeking equalization of their pay scales and conditions of service with those of their counterparts in Government Schools and for a declaration that Section 12 of the Act is void and constitutionally invalid as it is offending Articles 14, 21 and 23 of the Constitution. The Frank Anthony Public School Employees Association seek equalization of their pay scales and conditions of service with those of teachers and employees of Government Schools.

Issues


· Whether Sections 8 to 11 impinge on the right of the minorities to administer educational institutions of their choice envisaged in Article 30 of the Constitution.

· Whether Section 12 is hit by Articles 14, 21 and 23 of the Constitution?


Provisions of Law


Section 8, Section 9, Section 10, Section 11 of Chapter IV of the Delhi School Education Act.

Chapter V consisting of Sections 13 to 15 of the Delhi School Education Act.

Article 12, Article 14, Article 21 and Article 23 of The Constitution of India.


Judgment


Section 12 of the Delhi School Education Act which makes the provisions of Chapter IV inapplicable to minority institutions was held to be discriminatory and void not only because it makes Section 10 inapplicable to minority institutions, but also because it makes Sections 8(1), 8(3), 8(4), 8(5), 9 and 11 inapplicable to unaided minority institutions. The Parliament did not understand Sections 8 to 11 as offending the fundamental right guaranteed to the minorities under Article 30(1) is evident from the fact that Chapter IV applies to aided minority institutions and it cannot for a moment be suggested that surrender of the right under Article 30(1) is the price which the aided minority institutions have to pay to obtain aid from the Government. The scales of pay and other conditions of service of teachers and other employees of the Frank Anthony Public School New Delhi compare very unfavorably with those of their counterparts of the Delhi Administration Schools.


Analysis/Concepts Highlighted


It was held that there is a general and broad consensus about dimension of the Fundamental Right guaranteed by Article 30(1) of the Constitution. The right guaranteed to religious and linguistic minorities by Article 30(1) is twofold, to establish and to administer educational institutions of their choice and 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. 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(1) of the Constitution.


Chapter IV of the Delhi School Education Act, comprising of Sections 8 to 12 deal with "Terms and conditions of service of employees of recognized private schools". Chapter V consisting of Sections 13 to 15 contains "the provisions applicable to unaided minority schools". Section 10(1) specifically requires that, "the scales of pay and allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees of a recognized private school shall not be less than those of the employees of the corresponding status in schools run by the appropriate authority". But Section 12 is not applicable to an unaided minority school." The effect being; That the Administrator may not make rules regulating the conditions of service of employees of unaided minority schools except the minimum qualifications for recruitment of employees by virtue of Section 13 which enables the Administrator to make regulations even in respect of unaided minority schools. Second, the prior approval of the Director need not be obtained for the dismissal, removal, reduction in rank or termination of service otherwise than by dismissal or removal of an employee of an unaided minority school against which there is to be no appeal. Also, the scales of pay and allowances. medical facilities, pension, gratuity, provident fund and other 239 benefits which may be given to employees are subject to no regulation except that they should be contained in a written contract of service and need not conform to the scales of pay and allowances etc. of the employees of the corresponding status in schools run by the appropriate authority as in the case of other recognized private schools.


What was decided by the Supreme Court in Kerala Educational Bill, 1957 was that Anglo-Indian Schools which were entitled to receive grants under the Constitution and which received no more aid than that to which they were entitled under the Constitution could not be subjected to stringent terms as fresh or additional conditions precedent to enable them, to obtain the grant were construed as infringement of their rights under Article 337 and violation their rights under Article 30(1).Further held that, the Fundamental Right guaranteed by Article 30(1) cannot be surrendered, wholly or partly, and the authorities cannot make the grant of aid conditional on the surrender of a part of the Fundamental Right.


Referring to the case of The Ahmedabad St. Xaviers College Society & Anr. v. State of Gujarat and Anr. [1]and All Saints High School etc. v. The Government of Andhra Pradesh [2] it was further cited that Section 8(1) merely empowers the Administrator to make rules regulating the minimum qualifications for recruitment, and the conditions of service of recognized private schools. Section 8(2) which requires the prior approval of the Director for the dismissal, removal, reduction in rank or other termination of the services of an employee of a recognized private school is objectionable. Section 8(3) provides for an appeal to the Tribunal constituted under Section 11, consisting of a person who has held office as a District Judge or any equivalent judicial office. The appeal is not to any departmental official but to a Tribunal manned by a person who has held office as a District Judge and who is required to exercise his powers not arbitrarily but in the same manner as a court of appeal under the Code of Civil Procedure. The limited right of appeal, the character of the authority appeal and the manner in which the appellate power is required to be exercised make the provision for an appeal was considered reasonable. Also held that Section 8(4) would be inapplicable to minority institutions if it had conferred blanket power on the Director to grant or withhold prior approval in every case where a management proposed to suspend an employee but it is not the case. The management has the right to order immediate suspension of an employee in case of gross misconduct. The Director is also bound to accord his approval if there are adequate and reasonable grounds for such suspension hence the provisions were held to be reasonable and 8(5) were held to not encroach upon any right of minorities to administer their educational institutions.


Relying on Mother Provincial[3] and All Saints High School v. Government of Andhra Pradesh [4] it was held that 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 the fundamental right guaranteed by Article 30(1) of the Constitution. The management of minority institution cannot complain of invasion of the fundamental right to administer the institution when it denies the very object of Article 30(1). Therefore, Section 10 of the Delhi Education Act no way detracts from the fundamental right guaranteed by Article 30(1) to the minority institution to administer their educational institutions and to the extent that Section 12 makes Section 10 inapplicable to unaided minority institutions, it is clearly discriminatory.

Conclusion


Minorities have equal rights as the majorities, and anything that infringes the national interest must necessarily in its utmost operation affect the interests of all those who inhibit this land irrespective of the fact whether they belong to the majority or minority sections of the society. It is, therefore, as much in the interest of minorities as well as majority to ensure that the protection afforded to minority institutions is not used as a cloak for doing something which is dissident to national interests.


[1] (1975) 1 SCR 173 [2] AIR 1960 SC 1042 [3] [1971] 1 SCR 734 [4] AIR 1960 SC 1042

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