State of Kerala, Vs. Very Rev. Mother
Provincial  INSC 151 (10 August 1970)
10/08/1970 HIDAYATULLAH, M. (CJ)
HIDAYATULLAH, M. (CJ) SHAH, J.C.
CITATION: 1970 AIR 2079 1971 SCR (1) 734 1970
SCC (2) 417
R 1974 SC1389 (18,27,28,41,52,85,101,102,109
RF 1975 SC1821 (23,25,28,29,38,40) RF 1979 SC 52 (35) R 1979 SC 83 (5) RF 1980
SC1042 (2,3,12,36,44,81,95,108) R 1983 SC 1 (142) E&R 1987 SC 311
(10,11,17,18) RF 1987 SC1210 (9) D 1988 SC 305 (7,16) R 1990 SC 695 (5,6)
Kerala University Act 9 of 1969-Ss. 48, 49,
53, 56, 58 and 63-Constitutional validity of-Constitution of India-Art.
The Kerala University Act 1969 was passed to
reorganise the University of Kerala with a view to establishing a teaching,
residential and affiliating University for the southern districts of the State
of Kerala. Some of its provisions affected private colleges, particularly those
founded by minority communities in the State. Their constitutional validity was
challenged by some members of those communities on various grounds in writ
petitions filed in the High Court.
The provisions challenged were mainly those
contained in Chapters VIII & IX of the Act. By ss. 48 and 49, an
'Educational Agency' which had established and was maintaining a private
college or a 'corporate management' which was managing more than one private
college, were required to set up a governing body for a private college or a
managing council for private colleges under one corporate management. The
sections provided for the composition of the two bodies which were to include
the Principals and managers of the private colleges, and nominees of the
University and Government, as well as elected representatives of teachers.
Sub-section (2) provided, for the new bodies becoming bodies corporate having
perpetual succession and a common seal. Sub-section (4) provided that the
members would hold office for four years and by subsection (5) of each section
a duty was cast on the new governing body or the managing council 'to
administer' the private college or colleges in accordance with the provisions
of the Act. Sub-section (6) in each section laid down that the powers and
functions of the new bodies, the removal of members thereof and the procedure
to be followed by them shall be prescribed by statutes.
The petitioners challenged the provisions of
these two sections as also inter alia those of (a) sub-sections (1), (2), (3)
and (9) of s. 53 which conferred on the Syndicate of the University the Power
to -veto the decisions of the governing council; and a right of appeal to any
person aggrieved by their action; (b) section 56, which conferred ultimate
power on the University and the Syndicate in disciplinary matters in respect of
teachers: (c) s. 58, which removed membership of the Legislative Assembly as a
disqualification for teachers; and (d) s.63 (I)-Which provided that whenever
government was satisfied that a grave situation had arisen in the working of a
private college, it could inter alia, appoint the University to manage the
affairs of such private college for a temporary period. It was contended that
these provisions of the new Act were violative of Article 30, which protects
the rights of the minorities to establish and administer educational
institutions of their choice as also Articles 19(1) (f), and 14 of the
735 The High Court allowed the writ petitions
and declared some of the provisions of the Act invalid. On appeal to this
HELD: The High Court was right in holding
that sub-ss. (2) and (4) of ss. .48 and 49 are ultra vires Art. 30(1). Subsection
(6) of each of these two sections are also ultra vires : they offend more than
the other two of which they are a part and parcel. The High Court was also right
in declaring that sub-ss. (1), (2), (9) and of s. 53, sub-ss.
(2) and (4) of s. 56, are ultra vires as they
fall within ss. 48 and 49; that s. 58 (in so far as it removes disqualification
which the founders may not like to agree to, and s. 63 are ultra vires Art.
30(1) in respect of the minority institutions. [746 E] It is obvious that after
the erection of the governing body or the managing council the founders or even
the minority community had no hand in the administration. The two bodies are
vested with the complete administration of the institutions and were not
answerable to the founders in this respect. Sub-sections(2), (4), (5) and (6)
of ss. 48 and 49 clearly vest the management and administration in the hands of
the two bodies with mandates from the University. [743 Al Coupled with this is
the power of the Vice-Chancellor and the Syndicate under subsections (2) and
(4) of s. 56 to have the final say in respect of disciplinary proceedings
against teachers. [744 B] Furthermore, the provisions of s.58 granting special
privileges to teachers who happened to be members of the Legislative Assembly
enabled political parties to come into the picture of administration of
minority institutions, and coupled with the choice of nominated members left to
Government and the University under ss. 48 and 49, it was clear there was much
room for interference by persons other than those in whom the founding
community would have confidence. [745 A] The provisions of s. 63 laid down
elaborate procedure for management of the private colleges in which the
governing body or managing Council would have no say. Furthermore sub-section
63 (I) involved the transfer of right to possession of the properties to the
University. The High Court rightly pointed out that this section provides for
compulsory requisition of the properties within Art. 31(2) and (2A). To be
effective the, section required the assent of the President under sub-s. (3)
and it was not obtained.
Therefore the saving in Art 31A (1)(b) was
not available.[746 A] [The Court expressed no opinion regarding sub. ss. (1),
(2), (3) and (9) of s. 53 and sub.-ss. (2) and (4) of s. 56 vis-a-vis Art. 30.
The court did not go into the question of invalidity of the provisions under
Art. 19(1) (f)]. [746 F] Propositions established in the following cases
referred to and applied State of Bombay v. Bombay Education Society.  I
S.C.R. 568;The State of Madras V. S. C. Dorairajan  S.C.R.
525; Sidharajbhal v. State of Gujarati 
3 S.C.R. 837;
Katra Education Society v. State of U.P. and
Ors,  3.S.C.R. ' 328; In re the,Kerala Education Bill  S.C R. 995;
Gujarat University Ahmedabad v. Krishna Ranganath Mudhotkar and others 
Supp. I S.C. R. 112; Rev.
Father 'W.' Proost and Ors. v. State of
Bihar,  2S.C.R. 73, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 259 to 2600 of 1969 and 21 to 53, 155 to 190, 199, 200 to 203, 273 -and
324 of 1970.
Appeals from the judgment and order dated
September 19, 1969 of the Kerala High Court in O.P. 1450 of 1969 etc.
Mohan Kumaramangalam, K. S. Paripooram, R. K.
Garg, .S. C. Agarwala and M R. K. Pillai, for the appellant (in C.As. Nos. 2598
to 2600 of 1969 and 21 to 53 of 1970).
Mohan Kumaramangalam, K. S. Paripoornam and
M. R. K. Pillai for the respondent (in C.A. Nos. 155 to 190, 199, 200 to 203,
273 and 324 of 1970).
A. K. Sen, P. C. Chandi, Joseph Vithayathil,
Bhuvanesh Kumari, R. N. Banerjee, J. B. Dadachanji, O. C. Mathurand Ravinder
Kumar, for the appellant (in, C.As. Nos. 200 to 202 of 1970), respondent no. 1
(C.A. Nos. 2598 to 2600 of 1969), respondent no. 1 (in C.A. No. 21, 22, 26, 31,
32, 36, 37, 39, 43, 52, 156 to 158, 187, 160 to 164, 167, 168, 172, 173, 170,
165 to 181, 1839 186 and 189 of 1970).
Frank Anthony, P. C. Chandi, Joseph
Vithayathil, E. C.Agarwal, Bhuvanesh Kumari, R. N. Banerjee, J. B. Dadachanji,
,O. C. Mathur and Ravinder Narain, for the appellant (in C.A. No. 203 of 1970)
and respondent no. 1 (in C.A. Nos. 48 and 184 of 1970).
Frank Anthony, P. C. Chandi, A. T. M. Sampath,
S. R. Agarwala and E. C. Agarwala, for respondent No. 1 (in C. A. Nos. 23 &
159 of 1970).
M. C. Setalvad, V. A. S. Muhammad, and A.S.
Nambiar, for the appellant (in C.A. No. 199 of 1970) and respondent No. 1 (in
C.A. No. 174 and 185 of 1970).
M. C. Setalvad and A. Sreedharan Nambiar, for
the appellant -(in C.A. No. 273 of 1970).
A. Sreedharan Nambiar, for respondent No. 1
(in, C.A. No. 38 -of 1970).
R. Gopalakrishnan, for the appellant (in C.A.
No. 324 of 1970) and respondent no. I (in C.A. No. 33 of 1970).
M. K. Nambyar, N. A. Subramanian and P. K.
Pillai, for the appellant (in C.As. Nos. 155 to 190 and 199 of 1970) and the
respondent (in C.A. Nos. 2598 to 2600 of 1969 and 21 to 53, 200 to 203, 273 and
324 of 1970).
737 A. S. R. Chari, N. Sudhakaran and K. M.
K. Nair, for the intervener (in C.As. No. 199 to 203 of 1970).
The Judgment of the Court was delivered by
Hidayatullah, C.J. These appeals by certificates granted by the High Court of
Kerala under Arts. 132(1) and 13.3(1)(c) of the Constitution are directed
against a common judgment, September 19, 1969, declaring certain provisions of
the Kerala University Act, 1969 (Act 9 of 1969) to be ultra vires the
Constitution of India while upholding the remaining Act as valid. They were
heard together. This judgment will dispose of all of them-. 'The validity of
the Act was challenged in the High Court by diverse petitioners in 36 petitions
under Art 226 of the Constitution. Some parts of the Act were declared ultra
vires the Constitution As a result there are cross appeals. 36 appeals have
been filed against the several petitioners by the State of Kerala. Another 36
appeals have been filed by the University of Kerala which made common cause
with the Government of Kerala. 7 appeals have been preferred by seven original
petitioners, who seek a declaration that some other provisions of the Act,
upheld by the High Court as valid, are also void.
The Kerala University Act 1969 (which
repealed and replaced the Kerala University Act 1957 (Act 14 of 1957) was
passed to reorganise the University of Kerala with a view to establishing a
teaching, residential and affiliating University for the southern districts of
the State of Kerala. Some of its provisions affected private colleges,
particularly those founded by minority communities in the State. They 'were
consequently challenged of various grounds. The petitions were consolidated in
the High Court and were decided by the judgment and order under appeal.
Before we begin to discuss these appeals we
may say a few words about them. 33 petitioners belong to different
denominations of the Christian community; 8 are Superiors of different Catholic
Religious Congregations; 8 are Catholic Bishops representing their dioceses; 3
are Vicars of Catholic parishes; 5 are Boards of Associations constituted by
different Catholic denominations for establishing colleges and other
educational institutions and 3 are Bishops of the Malankara Orthodox Church. 4
petitions have been filed by the Metropolitan of the Marthoma Syrian Church and
2 by the Madhya Kerala Diocese of the Church of South India. The remaining 3
petitions are respectively by private colleges founded and administered by Sri
Sankara College Association Kalady, Sree Narayana Trusts Ouilon and the Nair
Service Society Changan nacherry. The petitioners in the 33 petitions specially
invoke-the provisions of Art.
30 of the Constitution which protects the
right of the minorities to establish and administer 9SupCI(P)/71-3 738 educational
institutions of their choice. All the 3 6 petitions invoke Arts. 19(1)(f), 31
and 14 of the Constitution.
The impugned Act consists of 78 sections
divided into 9 chapters. The main attack in the petitions is against Chapter
VIII headed 'private colleges' consisting of ss. 47 to 61 and some provisions
of Chapter IX particularly s. 63.
The High Court has declared that sub-ss. (2)
and (4) of s.
48, Sub-ss. (2) and (4) of s. 49, sub-ss.
(1), (2), (3) and (9) of s. 53, sub-ss. (2) and (4) of s. 56, s. 58 (except to
some extent) are offensive of Art. 19(1) in so far as citizen petitioners are
concerned and additionally, in so far as the minority institutions are
concerned, offensive to Art. 30(1), and therefore void. The petitions were,
therefore, allowed except two petitions (O.t.S. No. 2339 and 2796 of 1969)
filed by Sree Sankara College Association and the Nair Service Society since
the petitioners were companies and were not entitled to the benefit of Art.
30(1) not being minority institutions and not entitled to Art.
19(1)(f) not being citizens. Section 63 was,
however, held to offend Art. 31(2) and not saved by Art. 3 1 A(1)(b) and this
declaration was in favour of all the petitioners. It was also declared void as
offending Art. 30(1) in so far as the minority institutions were concerned. The
rest of the Act was declared to be valid and the challenge to it was 'rejected.
There was no order about costs.
The State of Kerala and the University
challenge the judgment in so far as it declares the provisions of the Act to be
void and the petitioners in the 7 counter appeals challenge the judgment in so
far as it has rejected the attack on some other provisions. We shall deal first
with the contentions urged on behalf of the State of Kerala and the University
of Kerala and then deal with the contentions of the majority institutions and
the challenge to the surviving portions of the impugned Act by the appealing
in the matter of the minorities the main
attack comes from Art. 30(1) of the Constitution. This clause reads :
"30. Right of minorities to establish
and administer educational institutions.
(1) All minorities, whether based on
religions or language, shall have the right to establish and administer
educational institutions of their choice.
It declares it to be a fundamental right of
the minorities, whether based on religion or language, to establish and
administer educational institutions of their choice. It is conceded by the
petitioners 739 representing minority communities before us (and indeed they
could not gainsay this in the face, of authorities of this Court) that the
State or the University to which these institutions are affiliated may
prescribe standards of teaching and the scholastic efficiency expected from
colleges. They concede also that to a certain extent conditions of employment
of teachers, hygiene and physical training of students can be regulated. '.
What they contended is that here there is an attempt to interfere with the
administration of these institutions and this is an invasion of the fundamental
right. The minority communities further claim protection for their property
rights in institutions under Arts. 31 and 19(1)(f) and the right to practice
any profession or to, carry on any occupation trade or business guaranteed by
sub-cl(g) of the latter 'article.
The majority community which is also the
founder of private colleges (of which three instances are before, us) do not
claim the right stemming from Art. 30(1),but they claim the other rights
mentioned above and further seek protections of equality in law with the
minority institutions and thus freedom in the establishment and administration
of their institutions.
The claim of the majority community
institutions to equality with minority communities in the matter of the
establishment and administration of their institutions leads to the
consideration whether the equality clause can at all give protection, when the
Constitution itself classifies the 'minority communities into a separate entity
for special protection which. is denied. to the majority community.
This is not a case of giving some' benefits
to minority communities which in reason must ,also go to the majority community
institutions but a special kind of protection for which the Constitution
singles out the minority communities.
This question, however, does not fall within.
out purview as the State, at the hearing announced that it was not intended to
enforce the provisions of the -law relating, to administration against the
majority institutions only, if they could. not be enforced against the minority
institutions. Therefore, we,, have', to consider, the disputed provisions
primarily under Art. 30(1) and secondarily under Arts. 31 and 19 where
Article 30(1) has been construed before by
Without referring to those cases it is sufficient
to say that the clause contemplates two rights which are separated in point of
time. The first right is the initial right to establish institutions of the
Establishment here means the bringing into
being of an institution and it must be, by a minority community. It matters not
if a single philanthropic individual with his own means, founds the institution
or the community at large contributes-the funds. The position in law is the
same and the intention in either case must be to found an institution for the
benefit of a minority community by a member of that community. It is equally
irrelevant 740 that in addition to the minority community others from other
minority communities or even from the majority community can take advantage of
these institutions. Such other communities bring in income and they do not have
to be turned away to enjoy the protection.
The next part of the right relates to the
administration of such institutions. Administration means 'management of the
affairs' of the institution. This management must be free of control so that
the founders or their nominees can mould the institution as they think fit, and
in accordance with their ideas of how the interests of the community in general
and the institution in particular will be best served. No part of this
management can be taken away and vested in another body without an encroachment
upon the guaranteed right.
There is, however, an exception to this and
it is that the standards of education are not a part of management as such.
These standards concern the body politic and
are dictated by considerations of the, advancement of the country and its
people. Therefore, if universities establish syllabi for examinations they must
be followed, subject however to.
special subjects which the, institutions may
seek to teach, and to a certain extent the State may also regulate the
conditions of employment of teachers and the health and hygiene of students.
Such regulations do not bear directly upon management as such although they may
indirectly affect it. Yet the right of the State to regulate education,
educational Standards and allied matters cannot be denied.
The minority institutions cannot be allowed
to fall below the standards of excellence expected of educational institutions,
or under the guise of exclusive right of management, to decline to follow the
general pattern. While the management must be left to them, they may be
compelled to keep in step with others. These propositions have been firmly
established in the State of Bombay v. Bombay Education Society('), The State of
Madras v. S. C. Dorairajan (2 ), In re the Kerala Education Bill 1957 (3),
Sidharajbhai v. State of Gujarat (4), Katra Education Society v. State of U.P.
& Ors.(5), Gujarat university, Ahmedabad v. Krishna Ranganath Mudholkar and
Ors. (6) and Rev. Father W. Proost & Ors. v. State of Bihar(7) In the last
case it was said that the right need not be enlarged nor whittled down. The
Constitution speaks of administration and that must fairly be left to the minority
institutions and no more. Applying these principles we now consider the
provisions of the Act.
The Act as stated already consists of 78
sections. arranged under 9 Chapters. Chapter VIII is headed 'Private Colleges'
and (1)  1 S. C. R. 568.
(3)  S. C. R. 995.
(5)  3 S.C.R. 128.
(7)  2 S.C.R. 73 (2)  S.C.R. 525.
(4)  3 S. C. R. 837 (6)  Supp 1
S. C. R. 112.
741 Chapter IX 'Miscellaneous'. Chapter I
contains the short title and commencement (s. 1) and definitions (s. 2). We are
concerned with some definitions in s. 2 -and Chapters VIII and IX. The other
chapters lay down the constitution of University and contain matters relating
thereto. They are not in dispute. The High Court in its judgment has carefully
summarized the impugned provisions and it is not necessary for us to cover the
same ground. We shall content ourselves by mentioning the important aspects
"College" in the Act means an
institution maintained by, or affiliated to, the University, in which
instruction is provided in accordance with the provisions of the Statutes,,
Ordinances and Regulations. These are framed by the University. 'Educational
Agency' means any person or body of persons who or which establishes and
maintains a private college. 'Private College' means a college maintained by an
agency other, than the -Government or the University and affiliated to the
University. I 'Principal means the head of a college. By 'teacher' as used in
the Act is meant a Principal Prof Assistant-Professor, Reader. 'Lecturer,
Instructor or such other person imparting instruction or supervising and whose
appointment has been approved by the University in any of the colleges or
recognised institutions. 'Recognised teacher' means a, person employed as a teacher
in an affiliated institution and whose appointment has been approved by the
University. There is much overlapbetween 'college, -teacher' and 'recognised
teacher' but there is no antinomian contusion which might have otherwise
resulted. These definitions by themselves are not questionable but in
thecontext of the provisions of Chapters VIII and IX, about to be referred to,
the insistence on the recognition by the University is claimed to be
interference with the freedom of management. Chapter VIII embracesss. 47 to 61.
It begins with the definition of 'corporate management' which means a person or
body of persons who or which manages more than one private college. Sections 48
and 49 deal respectively with (a) the governing body for private Colleges not
under corporate management and (b) with managing council for private colleges
under corporate management.' In either case the education agency (by which term
we denote the educational agency of a private college as also corporate
management, that is to say, the person or body of persons who or which manages
more than one private college) is required to set up a governing body for
private college or a managing council for private colleges under one corporate
management. The two sections embody the same principles and differ only because
in one case there is but one institution and in the other more than one. Both
consist of 7 sub-sections. Under these provisions the educational aeency or the
corporate management has I to establish a governing body or a managine council
respectively. The sections give the compositions of the two bodies. The
governing body set up by the educational agency is to consist. of I I members
and the 742 managing council of 21, member The 1 1 members of the governing
body are (i) the principal of the private college (ii) the manager of the
-.private college (iii)a person nominated by the University-in accordance with
the provisions in that behalf contained in the Statutes,(iv) a person nominated
by the Government (v) a person elected in accordance with such, procedure as
may be prescribed by the, Statutes of the University from among themselves by
the permanent teachers of the private college and (vi-xi) not more than six.
persons nominated by the educational agency.
The composition of the managing council consists of -a principal in rotation
from the private colleges, manager of the private colleges, the nominees of the
University, and the Government as above described, two elected representatives
of the teachers and not more than 15 members nominated by the educational
agency. The Act ought to have used the expression corporate management' instead
of 'educational agency' but the meaning is clear.
It will thus be seen that a body quite apart
from the educational agency 'or the corporate management is set up.
Sub-section (2) in either section make these
bodies into bodies corporate having perpetual success in and a common seal. The
manager of the college or colleges, as the case may be is the, Chairman in
either case [sub-s. (3)] Subsection (4) then says that the member shall hold
office for a period of 4 years from the date of its constitution.
Sub-section(5) then says as follows;
"It shall be the duty of the Government
body/(Managing council) to administer the Private college (all the private
colleges under the corporate management) in accordance with the provisions of
this Act and the Statutes, Ordinances, Regulations, -Bye-laws and Orders made
there under." (We have attempted to combine the two provisions here. In
the case of governing body the sub-section is to be read omitting the ,words in
brackets and in the case of managing council the underlined words are to be
omitted and the subsection read with the words in brackets.) Sub-section(6)
then lays down that the powers and functions of the governing body, (the
managing council), the, removal of members thereof and the Procedure to be
followed by it, including the delegation of its powers; shall be prescribed by the
Statutes. Sub-section (7) lays down that decisions in either of the two bodies
shall be taken at meetings on the basis of simple majority of the members
present and voting.
These sections were partly declared ultra
vires of Art.
30(1) :by the High Court as they took away
from the founders the right 743 to administer their own institution. It is
obvious that after the erection of the governing body or the managing council
the founders or even the community has no hand in the administration. The two
bodies are vested with the complete administration of the, institutions. These -bodies
have a legal personality distinct from the educational agency or the corporate
management. They are not 'answerable to the: founders -in the matter of
administration. Their powers and functions are determined by the University
laws and even the removal of the members is to. be governed by the Statutes of
the University. Subsections (2), (4), (5) and (6) clearly vest the management
and administration in the hands of the two bodies with mandates from the,
In attempting to save these provisions Mr.
Mohan Kumaramangalam drew attention to two facts only. The first is that the
nominees of the educational agencies or the corporate management have the
controlling voice and that the defect, if any, must be found in the Statutes,
Ordinances, Regulations, Bye-laws and Orders of the University and not in the
provisions of the Act. Both these arguments are not acceptable to us. The
Constitution contemplates the administration to be in the hands of the
particular community. However desirable it might be to associate nominated
members of the kind mentioned in ss. 48 and 49 with other members of the
governing body or the managing council nominees, it is obvious that their voice
must play a considerable part in management. Situations might be conceived when
they may have a preponderating voice,. In any event, the administration goes to
a distinct corporate body which is in no way answerable to the educational
agency or the corporate management. The founders have no say in the selection
of the members nominated or selected except those to' be nominated by them. It
is,. therefore, clear that by the force of sub-ss. (2), (4) and (6) of ss. 48
and 49 the minority community loses the right to administer the institution it
has founded. Sub-section (5) also compels the governing body or the managing
council to follow the mandates of the University in the administration of the
institution. No doubt the Statutes, Ordinances, Regulations, Rules. Bye-laws
and Orders can also be examined in the light of Art. 30(1) but the blanket
Dower so given to the University bears adversely upon the right of
administration. This position is further heightened by the other provisions of
the Act to which a reference is now needed.
Section 53-, sub-ss. (1), (2) and (3) confer
on the Syndicate of the University the power to veto even then,, action of the
governing body or the managing council in the selection of the principal.
Similarly, sub-s. (4) fakes away from the educational agency or the corporate
management the right to select the teachers. The insistence on merit in
sub-s.(4) or on seniority cum fitness in sub (7)does not save the situation.
The power is exercised not by 744 the educational agency or the corporate
management but by a distinct and autonomous body under the control of the
Syndicate, of the University. Indeed sub-s. (9) gives a right of appeal to the,
Syndicate to any person aggrieved by the action of governing body or the
managing council thus making the Syndicate the final and absolute authority in
these matters. Coupled with tills' is the power of Vice Chancellor and the
Syndicate in sub-ss. (2) and (4) of s.
56. These sub-sections read:
"56. Conditions of service of teachers
of private colleges.
(2) No teacher of a private college shall be
dismissed, removed or reduced in rank by the governing body or managing council
without the previous sanction of the Vice-Chancellor or placed under suspension
by the governing body or managing council for a continuous period exceeding fifteen
days without such previous sanction.
(4) A teacher against whom disciplinary
action is taken shall have a right of appeal to the Syndicate, and the
Syndicate shall have power to order reinstatement of the teacher in cases of
wrongful removal or dismissal and 'to order such other remedial measures as it
deems fit, and the governing body or managing council, as the case may be,
shall comply with the order." These provisions clearly take away the
disciplinary action from the governing body and the managing council and confer
it upon the University. Then comes s. 58 which reads "58. Membership of
Legislative Assembly, etc., not to disqualify teachers. A teacher of a private
college shall not be disqualified for continuing as such teacher merely on the
ground that he has been elected as a member of the Legislative Assembly of the
State or of Parliament or of a local authority :
Provided that a teacher who is a member of
the Legislative Assembly of the State or of Parliament shall be on leave during
the period in which the Legislative Assembly or Parliament, as the case may be,
is in session." This enables political parties to come into the picture of
the administration of minority institutions which may not like this interference.
When this is coupled with the choice of nominated members left to Government
and the University by sub-s. (1)(d) of ss. 48 and 49, it is clear that there is
much room for interference by persons other than those in whom the founding
community would have confidence.
To crown all there is the provision of s. 63(1)
which reads "63. Power to regulate the management of private colleges.
(1) Whenever Government are satisfied on
receipt of a report from the University or upon other information that a grave situation
has arisen in which the working of a private college cannot be carried on for
all or any of the following reasons, namely:(a) default in the payment of the
salary of the members of the staff of the college for a period of not less than
(b) willful closing down of the college for a
period of not less than one month except in the case of the closure of the
college during a vacation;
(c) persistent default or refusal to carry
out all or any of the duties imposed on any of the authorities of the college
by this Act or the Statutes or Ordinances or Regulations or Rules or Bye-laws
or lawful -orders orders passed there under;
and that in the interest of private college
it is necessary so to do, the Government may, after giving the governing body
or managing council, as the case may be, the manager appointed under
sub-section (1) of section 50 and the education agency, if any, of the college
a reasonable opportunity of showing cause against the proposed action and after
considering the cause, if any, shown, by order,, appoint the University to
manage the affairs of such private college temporarily for a period not
exceeding two years;
Provided that in cases where action is taken
under this sub-section otherwise than on a report from the University, it shall
be consulted before taking such action.
The remaining provisions of this section lay
down an elaborate procedure for management in which even the governing body or
the managing council have no say. Sub-section 63(1) involves 746 the transfer
of right to possession of the properties to the University. The High Court
rightly pointed out that this section provides for compulsory requisition of
the properties within Art. 31(2) and (2A). To be effective the section required
the assert of the President under sub-s. (3) and it 'was not obtained.
Therefore the saving in Art.
31A(1)(b) is not available.
Mr. Mohan Kumarmangalam brought to our notice
passages from the Report of the Education Commission in which the Commission
had made suggestions regarding the conditions is of service of the teaching
staff in the universities and the colleges and standards of teaching. He also
referred to the Report of the Education Commission on the status of teachers,
suggestions for improving the teaching methods and standards. He, argued that
what has been done by the Kerala University Act is to implement these
suggestions in Chapters VIII and IX and particularly the impugned sections. We
have no doubt that the provisions of the Act were made bona fide and in the interest
of education but unfortunately they do affect the administration of these
institutions and rob the founders of that right which the Constitution desires
should be theirs. The provisions, even if salutary, cannot stand in the face of
the constitutional guarantee. We do not, therefore, find it necessary to refer
to the two reports.
The-result of the above analysis of the
provisions which have been successfully challenged discloses that High Court
was right in its appreciation of the true position in the light of the
Constitution. We agree with the High Court that sub-ss. (2) and (4) of ss. 48
and 49 are ultra vires Art. 30(1). Indeed we think that sub-ss. (6) of these
two sections are also ultra vires. They offend more than the other two of which
they are a part and parcel. We also agree that sub-ss. (1), (2), (3) and (9) of
s. 53, sub-ss.
(2) and (4) of s. 56 are ultra vires as they
fail with ss. 48 and 49. We express no opinion regarding these subsections
vis-a-vis Art. 30(1). We also agree that Section 58 (in so far as it removes
disqualification which the founders may not like to agree to) and Sec. 63 are
ultra vires Articles 30(1) in respect of the minority institutions.
The High Court has held that the provisions
(Except s. 63) are also offensive to Art. 19(1)(f) in so far as the petitioners
are citizens of India both in respect of majority as well as minority
institutions. This was at first debated at least in so far as majority
institutions were concerned. The majority institutions invoked Art. 14 and
complained of discrimination. However, at a later stage of proceedings Mr.
Mohan Kumaramangalam stated that he had instructions to say that any provision
held inapplicable to minority institutions would not be enforced against the
majority institutions also. Hence it relives us of file task of considering the
matter under Art. 19(1)(f) not only in respect of minority institutions 747 but
in respect of majority institutions also. The provisions of s. 63 affect both
kinds of institutions alike and must be declared ultra vires in respect of
The result is that the Judgment under appeal
is upheld. The appeals of the State Government of Kerala and of the University
are dismissed with costs. One set of hearing fees. For the reasons given by the
High Court we do not accept the contentions of the seven appellants who have
challenged some of the other provisions of the Act except ss. 48 (6) and 49(6)
and do not consider it necessary to repeat what is said by the High Court.
These appeals are dismissed except as to those sections but without costs.
R.K.P.S. Appeals dismissed.