School of Buddhist Philosophy, Leh Vs. Makhan Lal Matto & Anr  INSC
213 (25 July 1990)
Singh (J) Kuldip Singh (J) Kasliwal, N.M. (J)
1990 SCR (3) 515 1990 SCC (4) 6 JT 1990 (3) 319 1990 SCALE (2)139
of Budhist Philosophy--Appointment of Principle- Board of Management whether
competent to alter or amend the rules governing appointments.
to various posts in School of Budhist Philosophy, Leh, were governed by the Rules framed by the Board
of management in the year 1973. According to the said rules, the qualifications
prescribed for the post of Princi- pal as also for the Administrative Officer
March 1973, one M.L. Mattoo, Respondent No. 1, who at that time was working as
the Administrative Officer of the School was given the additional charge of the
post of Prin- cipal. Thereafter the Board of management at its meeting held on
22.8.1978, decided that qualifications prescribed for the post of Principal
should be revised, so as to make it obligatory for the Principal to have a
thorough academic knowledge of Buddhist Philosophy--the primary object of the
institution being research and propagation of Budhist phi- losophy. A selection
committee was constituted by the Board of management to appoint a suitable
person as Principal of the school and one Tashi Paljor, was appointed as
aggrieved by the said appointment, Respondent No. 1, filed a writ petition in
the High Court contending that he was removed from the additional charge
without affording him an opportunity of being heard and further that he was not
considered by the selection committee. The High Court re- jected the first
contention but allowed the writ petition on the ground that he was not
considered for the post of Prin- cipal and thus his right under Article 16 was
the management advertised the post of Principal to be filed by direct
recruitment on the basis of the revised qualifications. Respondent Mattoo
challenged the advertise- ment by means of a writ petition on the ground that
the revised qualifications were not validly prescribed and as such the post of
Principal could only be filled in on the basis of the pre-revised
qualifications. He based his con- tention on the concession made by the counsel
for the man- agement, when his earlier petition was heard, that the petitioner
possessed the requisite qualifications. According to him the rules have not
been amended. The High Court accepted the contention of Mattoo 516 and allowed
the writ petition, quashed the impugned adver- tisement and directed the
management not to make appointment on the basis of the advertisement in
question. Hence this appeal by the Board of management of the school.
the appeal, this Court,
The Board of management is fully competent to alter or amend the rules in any
manner and at any time.
The qualifications/experience for the post of Principal were validly revised by
amending the rules in August 1978.
advertisement issued on January
5, 1982, was in
accord- ance with the Rules and the High Court was not justified in quashing
the same. [522B] Since respondent No. 1 does not possess the revised
qualifications, he is not eligible to be considered for the said post. [521F]
APPELLATE JURISDICTION: Civil Appeal No. 3492 of 1990.
the Judgment and Order dated 3.8.1988 of the Jammu & Kashmir High Court in
L.P.A. No. 110 of 1988.
Ramesh C. Pathak, G. Venkatesh Rao and Baby Lal for the Appellant.
Ms. Purnima Bhatt, V.K. Pandita and Atul Sharma, for the Respondents.
Judgment of the Court was delivered by KULDIP SINGH, J. Special leave granted.
The School of Buddhist Philosophy, Leh (hereinafter called the 'School') is an
affiliate institution of the Sampurnanand Sanskrit University, Banaras. The management of the School is in
the hands of a society called Central Institute of Buddhist Studies, Leh which
is registered under the Jammu
Registration of Societies Act. Ap- pointments to various posts in the School
are regulated by the rules framed by the Board of management in the year 1973.
The academic and other qualifications for the post of Principal under the rules,
are as under:
"Academic Qualification At least Master's Degree in Humanities or Social
Sciences, with knowledge of Rules and Regulations, procedures and Accounts.
Minimum experience of 7 years, out of which at least 2 years should be in
administration such as administrative Asstt. and not less than 3 years in
teaching in Higher Secondary and/or Degree classes." The qualifications
for the post of Administrative Officer under the 1973 rules are identical.
(Respondent No. 1), who was functioning as the Administrative Officer, was
given the additional charge of the post of Principal by an order dated March 26, 1973 issued by the Ministry of Education
and Social Welfare, Government of India, New Delhi.
Board of Management in its meeting held on August 22, 1978 decided that apart from the qualifications
pre- scribed under the Rules, the person selected for the post of Principal
should have a thorough academic background in Buddhist Philosophy. Pursuance to
the said decision the qualifications/experience for the post of Principal pre-
scribed under the Rules were revised as under:
consistently good academic record possessing eminent scholarship in Buddhist
Philosophy as a subject of specialisation at M.A. or Doctoral level. or Acharya
Degree with research experience to Buddhist Philoso- phy or equivalent. or An
equivalent degree of traditional monastic education in Buddhism.
(b) Evidence of research work and/or public work in the field.
years teaching experience in Buddhist Philosophy and allied subject at the
years of administrative experience." The Board of Management constituted a
selection commit- tee to appoint a suitable person as Principal of the School.
order dated January 9,
1979 one Shri Tashi
Pal jot, who fulfilled the revised qualifications, was appointed as Principal
of the School. Aggrieved by the said appointment M.L. Mattoo filed Civil Writ
Petition No. 256 of 1979 in the High Court of Jammu and Kashmir on the ground that he was removed
from the additional charge without affording an opportunity of heating to him
and further that he was not considered by the selection committee. He contended
that selection was liable to be quashed being violative of Arti- cle 16 of the
Constitution of India. The writ petition was resisted by the Management on the
ground that it was not a 'State' under Article 12 of the Constitution of India
and as such the writ petition was not competent. At the hearing of the writ
petition the counsel for the Management conceded that the society was a 'State'
within Article 12 of the Constitution of India and as such the writ petition
could not be dismissed on that ground. The High Court rejected the contention
of M.L. Mattoo that he was entitled to an oppor- tunity of hearing or Article
311 was attracted. The High Court, however, allowed the writ petition on the
ground that the petitioner was not considered for the post of Principal and as
such his right under Article 16 of the Constitution of India stood infringed The
operative part of the High Court judgment is as under:
V.K. Gupta has on the authority of Ajay Hasia's case (supra) frankly conceded
that the society being an instru- mentality or agency of Government of India,
was 'state' for the purpose of Part III of the Constitution as such, the
petitioner had a fundamental right to be considered for the post alongwith the
third respondent. He not having been so considered, and it also being admitted
that he possessed the requisite qualifications, the rule of equality enshrined
in Articles 14 and 16 of the Constitution stood clearly violat- ed. That being
so, as in fact it is, the impugned order 519 passed by the second respondent
appointing the third re- spondent as the Principal of the School has to be
quashed." Thereafter the Management advertised the post of Princi- pal to
be filled by direct recruitment on the basis of revised qualifications. The
advertisement was published in the 'Kashmir Times' of January 5, 1982.
filed another writ petition being Civil Writ Petition No. 29 of 1982
challenging the advertisement on the ground that the revised qualifications had
not been validly prescribed and as such the post of Principal could only be
filled on the basis of the pre-revised qualifications.
to him the revised qualifications were advertised only to make him ineligible
for the post. The main thrust of Mattoo's argument was that his earlier writ
petition was decided by the High Court on October 29, 1981 wherein the counsel
for the Management conceded that he possessed the requisite qualifications for
the post of Principal. Admit- tedly Matto does not possess the revised
to him the earlier writ petition was filed in the year 1979 and had the
qualifications been revised by amend- ing the rules in 1978, the counsel for
the management would have certainly brought the same to the notice of the Court
and since it was not done there was factually no amendment to the rules. The
High Court accepted the contention of Mattoo and allowed the writ petition by its
judgment dated June 9, 1988 on the following reasoning:
is stated in para No. 13 of their counter that qualifi- cations were changed in
August, 1978 with the approval of the Govt. of India. This statement is not
accepted for two reasons one, that this was not the defence of the respond- ents
in writ petition No. 256/1979 in which petitioner's eligibility was granted by
the High Court for the post of Principal; and second, that after the decision
of the High Court granting eligibility to the petitioner for the post of
Principal in writ petition No. 256/1979, the respondents plea on the basis of
some policy or note whereby qualifica- tions were changed in 1978 prior to the
filing of the writ petition No. 256/1979 cannot be now pressed into service nor
would be permitted to be made because same will be barred by doctrine of
constructive res judicata." The High Court quashed the advertisement dated
January 5, 520 1982 and restrained the management from filling the post of
Principal on the basis of the impugned advertisement. The management has come
up to this Court in appeal against the above said judgment of the High Court of
Jammu and Kashmir.
learned counsel for the appellant has invited our attention to the proceedings
of the meeting of the manage- ment of the School held on August 22, 1978. It
was decided in the said meeting that the person selected for the. post of
Principal of the School must have academic background in Buddhist Philosophy in
addition to the qualifications pre- scribed under the Rules. Thereafter the
amended qualifica- tions which have been reproduced above were prescribed by
the Board of Management.
is not disputed that the recruitment Rules could be altered by the Board of
Management at any time with the sanction of the Government of India. Mr. E.C. Agarwala
appearing for the respondent M.L. Mattoo has, however, contended that the
recruitment rules were never amended and in any case there was no sanction of
the Government of India regarding the amended Rules.
counsel for the appellant has invited our atten- tion to the affidavit of Dr.
(Mrs.) Kapila Vatsyayan, Chair- man, Board of Management of the School filed
before the High Court. Dr. Kapila Vatsyayan is the Additional Secretary to
Government of India in the Ministry of Education and Cul- ture. Para 13 of the
affidavit is as under:
in the year 1978, the question of appointment of a Principal of the school on
regular basis was under the consideration of the Board of Management, it was
held that keeping in view the objects of the school being a research
Institution to propogate Buddhist Philosophy a thorough academic background in
Buddhist Philosophy was considered as one of the essential qualifications for
the post of Princi- pal of the School as will be evident from the extract from
brief note on Agenda item I considered in the meeting of the Board of
Management held on 22nd August, 1978 Annexure IV.
Paljore was appointed as Principal as stated in para No. 5 of the petition as
he possessed this qualifica- tion and was selected by a duly appointed
Selection Commit- tee. The contention of the petitioner that this qualifica- tion
has been added now after the decision of writ petition No. 256 of 1979 is
incorrect. As 521 stated above, the qualifications were changed in August 1978
with the approval of Govt. of India.
qualifications are obviously very necessary for the fulfilling of the
objectives of the Schools of Buddhist Philosophy, Leh (Ladakh). In the absence
of these qualifications, the very object for which the Institution exists is
bound to be defeated. The qualification has been provided the interest of the
Institution and for the attain- ment of the object for which it exists, namely
imparting and propagating Buddhist Philosophy. The Recruitment Rules of 1975,
Annexure 'D' to the petition were framed by the Board at that time. Under the
Rules and Regulations of the Board, the Board of Management is competent to
amend the same. ' ' it is obvious from the affidavit of Dr. Kapila Vatsyayan reproduced
above that the qualifications for the post of Principal were revised by
amending the Rules and the revised qualifications were approved by the
Government of India. No.
rejoinder was filed by M.L. Mattoo to the above affidavit, The High Court was
not justified in disbelieving the contents of the affidavit. The rules are not
statutory. The Board of Management is fully competent to alter or amend the
rules in any manner and at any time. The affidavit by the Chairman of the Board
of Management who is additional Secre- tary to Government of India to the
effect that the rules were amended in 1978 with the approval of the Government
of India, should have put an end to the controversy. We have no hesitation in
holding that the qualifications for the post of Principal of the School stood
validly revised by the amendment of the Rules in August, 1978. Since respondent
No. 1 Shri M.L. Mattoo does not possess the revised qualifica- tions, he is not
eligible to be considered for the said post.
earlier writ petition No. 256/1979 the question as to whether the
qualifications for the post of Principal had been revised was not before the
High Court. The main contention of the Management, before the High Court, was
that the Management society was not a 'State' under Article 12 and as such no
writ petition was competent. At the hear- ing the counsel for the management,
however, conceded that the society was a 'State' under Article 12 of the Constitu-
tion of India. It is no doubt that the High Court has men- tioned that it 522
was admitted by the counsel for the Management that Mattoo possessed the
requisite qualifications for the post but we do not understand how in the face
of categoric affidavit of Dr. Kapila Vatsyayan such a statement could be made
before the High Court.
therefore, hold that the qualifications/experience for the post of Principal were
validly revised by amending the Rules in August, 1978. The advertisement issued
on January 5, 1982 was in accordance with the Rules
and the High Court was not justified in quashing the same. We, therefore, allow
the appeal, set aside the judgment of the High Court and dismiss the writ
petition filed by M.L. Mattoo before the High Court. There shall be no order as