Gandhi Faizeam College Shahajahanpur Vs.
University of Agra & ANR [1975] INSC 55 (3 March 1975)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
MATHEW, KUTTYIL KURIEN GUPTA, A.C.
CITATION: 1975 AIR 1821 1975 SCC (2) 283
CITATOR INFO:
R 1980 SC1042 (2,62,81,99)
ACT:
Staute 14, A of the Agra University--If
violative of Art.
30, Constitution of India.
HEADNOTE:
The appellant is a minority College,
affiliated to he respondent-University. In August 1964, the College management
applied to the respondent for permission to start teaching in certain courses
of study. The respondent insisted, that as a condition of recognition of the
additional subjects, the Managing Committee must be reconstituted in conformity
with statute 14-A by including the Principal of the College and the senior most
member of the staff in it. The, appellant filed a writ petition in the, High
Court challenging Statute 14-A a,,, violative of Art.
30, but the High Court dismissed the
petition.
(Per majority, V.R. Krishna Iyer and A.C.
Gupta, JJ.) The inclusion of the Principal and the senior member of the staff
on the Managing Committee, improves the administration and does not inhibit its
autonomy, and the Statute is therefore good and valid. [833A] (1) Abridgement
of the right under Art. 30 is as obnoxious as its annihilation, but the right
can be regulated in a benign manner which neither abridges nor exaggerates
autonomy but promotes better performance. To regulate is not to restrict, but
to facilitate the effective exercise of the very right regulated. [820B-C;
824D] (2) The Principal is an invaluable insider-the Management's own choice
and not an outsider. He brings into the work of the Managing Committee that
intimate acquaintance with educational operations and that necessary expression
of student-teacher aspirations and complaints which are so essential for the
minority institutions to achieve a happy marriage between individuality and
excellence. An activist Principal is an asset in discharging the duties of the
Managing, Committee which are inextricably inter-laced with academic functions.
The senior most teacher is a seasoned representative of the teachers and is
also chosen by the management itself. His role, though less striking and moire
unobstrusive, is also a useful input into managerial skills.
[8251-H] (3) Moreover, the Managing Committee
is subject to the hierarchiral control ofthe Governing Body and General
Council. [825H] (4) To draw a distinction between creating a managing body, and
regulating the manner of its functioning to obviate maladministration, and hold
that-the former is beyond the pale of legislative prescription while the latter
is permiSSible as a preservative, is broadly sound; but, as a rigid logical
formula, it breaks down. For example, if the law says that a person convicted
of breach of trust or that ,in undischarged insolvent would be disqualified to
be the treasurer, it affects the structure of the governing body, but it is
indubitably a protection against likely maladministration. [823E-H] (5) In the
D.A.V. College case (1971) Supp. S.C.R. 688 and State of Kerala v. Very Rev.
Mother, Provincial (1971) 1 S.C.R. 734 some provisions relating to the
principal of the institution were struck down, but the real reason for striking
them down was that those provisions and others deprived the minority of its
right to manage its own institutions. [83ID-832B] 811 Kerala Education Bill
Case (1959) S.C.R. 995; St. Xavier's College case, (1975) 1. SCR 173; Rev. Fr.
W. Proost case (1969) 2 S.C.R. 73 and Rt. Rev. Bishop Patro's case (1970) 1
S.C.R. 172, referred to.
(Per K. K. Mathew, I dissenting The Whole
temper and tone of a college do depend upon the principal and the teachers, but
that does not mean that they should be members of the governing council of a
college.
[815F-G] The matter is concluded by the
decision of this Court in Ahmedabad St. Xavier's College Society V. State of
Gujarat (1975) 1 S.C.R. 173. This Court held by a majority that s. 33A(1) (a)
of the Gujarat University Act, 1949, was violative of Art. 30(1) because, that
provision required the inclusion, in the: governing body of the College, of
persons whom the religious minority did not want to include. When the article
says that a religious or linguistic minority has the right to administer
educational institutions of its choice, it means that the right to carry on the
administration of the institution must be left to the managing body consisting
of Persons in whom the religious or linguistic minority has faith and
confidence. The minority community has the exclusive right to vest the
administration of the College in a body of its own choice and any compulsion
from an outside authority to include any other person in that body is an
abridgement of its fundamental right to administer the educational institution.
The, determination of the composition of the, body to educational institution
established by a religious minority must minority as that is the core of the
right to administer, though prevent maladministration by that body are
permissible. But such regulations can only relate to the manner of
administration after the to administer has come into being. [812D; 815B-D]
State of Kerala v. Mother Provincial [1971] 1 S.C.R. 734; W.
Proost v. Bihar [1969] 2 SCR 73 and Rev.
Bishop S. K. Patro v. Bihar [1969] 1 SCR 863, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1611 of 1969.
Appeal by special leave from the Judgment and
Order dated the 25th July, 1967 of the Allahabad High Court in Special Appeal
No. 165 of 1967.
Frank Anthony, K. L. Hathi and P. C. Kapur,
for the appellant.
Santosh Chatterjee and G. S. Chatterjee, for
the respondents.
The Judgment of the Court was delivered by
Krishna lyer, J.
K. K., Mathew, J. gave a dissenting opinion.
MATHEW, J. The question is whether Statute
14A framed by the University of Agra abridges the fundamental right guaranteed
under Article 30(1) of the Constitution of the Muslim community of Saharanpur,
a religious minority, to administer the Gandhi Faizeam College,. Saharanpur,
established by it.
In August, 1964, an application was made on
behalf of the college management to the University for permission to start
teaching in courses of study including Sociology, Sanskrit, Arabic, Military
Studies, Drawing and Painting. The University insisted that as condition for
recognition of these additional subjects as courses of study, the managing
committee of the college must be reconstituted in conformity with 812 Statute
14A by including the Principal and the senior-most member of the staff in it.
Statute 14A provides :
"14-A. Each college, already affiliated
or when affiliated, which is not maintained exclusively by Government must be
under the Management of a regular constituted Governing Body (which term
includes Managing Committee) on which the staff of the college shall be
represented by the Principal of the College and at least one representative of
the teachers of the college to be appointed by rotation in order of seniority
determined by length of service in the college, who shall hold office for one
academic year." In the writ petition filed before the High Court, the
appellant contended that Statute 14A abridged its fundamental right under
Article 30(1). But the High Court negatived the contention holding that even if
Statute 14A is implemented by the religious minority, the right of the minority
to administer the educational institution would not be taken away or destroyed
and dismissed the writ petition.
I should have thought that the matter was
concluded by the decision of this Court in Ahmadabad St. Xavier's College
Society v. State of Gujarat(1). Section 33A(1) (a) of the Gujarat University
Act, 1949, which fell for consideration in that case, among other matters, read
"33A(1) Every college (other than a Government college or a college
maintained by the Government) affiliated before the commencement of the Gujarat
University (Amendment) Act,.
1972 (hereinafter in this section referred to
as 'such commencement')(a)shall be under the management of a governing body
which shall include amongst its members the Principal of the College, a
representative of the University nominated by the Vice Chancellor, and three
representatives of the teachers of the college and at least one representative
each of the members of the non-teaching staff and the students of the college,
to be elected respectively from amongst such teachers, members of the non
teaching staff and students." This provision was challenged in that case
as violating the fundamental right under Article 30(1) of the minority
community in question there. This Court held by a majority that the provision
was bad as it offended the fundamental right of the religious minority under
Article 30(1) to administer its educational institution. The reason was that
the provision required the inclusion, in the governing body of the college, of
persons whom the religious minority did not want to include. When Article 30(1)
speaks that a religious or linguistic minority has the right to administer
educational institutions of its choice, it means that the fight to carry on the
administration of the institution must be left to the managing body consisting
of persons in whom the religious or linguistic minority has faith and
confidence.
(1) [S.C.C. 717] 813 The learned Chief
Justice, speaking for himself and Palekar, J., after referring to the
provisions of s. 33A(1) (a) said in that case that the right to administer is
the right to conduct and manage the affairs of the institution and that this
right is exercised "through a body of persons in whom the founders of the
institution have faith and confidence, and who have full autonomy in that
sphere". He further said that the right to administer is subject to
permissible regulatory measures and that permissible regulatory measures are
those which do not restrict the right of administration but facilitate it and
ensure better and more effective exercise of the right for the benefit of the
institution and through the instrumentality of the management of the
institution and without displacing the management. He was of the view that if
the administration has to be improved, it should be done through the agency or
the instrumentality of the existing management and not by displacing it. The
learned Chief Justice further observed that autonomy in administration means
right to administer effectively and to manage and conduct the affairs of the
institutions, that the right of administration means day to day administration
and that the choice in the personnel of management is a part of the
administration. He concluded by saying :
"The provisions contained in Section
33A(1) (a) of the Act have the effect of displacing the management and
entrusting it to a different agency. The autonomy in administration is lost.
New elements in the shape of representatives of different types are brought in.
The calm waters of an institution will not only be disturbed but also mixed.
These provisions in Section 33A(1) (a) cannot therefore apply to minority
institutions." Jaganmohan Reddy. J. speaking for himself and Alagiriswami,
J. agreed with the view expressed by the learned Chief Justice on the question
of the validity of s. 33A(1) (a) in its application to the minority.
Khanna, J. in his concurring judgment said
that the argument that a law or regulation could not be deemed unreasonable
unless it was totally destructive of the right of the minority to administer
educational institutions was fallacious and was negatived by this Court by its
previous decisions and that a law which ".....interferes with the
minorities choice of a governing body or management council would be violative
of the right guaranteed by Article 30(1). This view has been consistently taken
by this Court in the cases of Rt. Rev.
S. K. Patro, Mother Provincial and D. A. V.
College (affiliated to the Guru Nanak University) (supra).
" Section 33-A which provides for a new
governing body for the management of the college and also for selection
committees as well as the constitution thereof would consequently have to be
quashed so far as the minority educational institutions are concerned because
of the contravention of Article 30(1)." 814 On behalf of Chandrachud, J.
and myself, I said "The requirement that the college should have a
governing body which shall include persons other than those who are members of
the governing body of the Society of Jesus would take away the management of
the college from the governing body constituted by the Society of Jesus and
vest it in a different body. The right to administer the educational
institution established by a religious minority is vested in it. It is in the
governing body of the society of Jesus that the religious minority which
established the college has vested the right to administer the institution and
that body alone has the right to administer the same. The requirement that the
college should have a governing body including persons other than those who
constitute the governing body of the Society of Jesus has the effect of
divesting that body of its exclusive right to manage the educational
institution. That it is desirable in the opinion of the legislature to
associate the Principal of the college or-the other persons referred to in s.
33A(1) (a) in the management of the college is not a relevant consideration.
The question is whether the provision has the effect of divesting the governing
body as constituted by the religious minority of its exclusive right to
administer the institution. Under the guise of preventing maladministration,
the right of the governing body of the college constituted by the religious
minority to administer the institution cannot be taken away." In State of
Kerala v. Mother Provincial(1) this Court said that "Administration means
management of the affairs of the institution, that the management must be free
of control so that the founders or their nominees can mould the institution
according to their way of thinking and in accordance with their ideas of how
the interests of the community in general and the institution in particular
will be best served and that no part of this management can be taken away and
vested in another body without an encroachment upon the guaranteed
right."Sections 48 and 49 of the Kerala University Act, 1969 which came up
for consideration in that case respectively dealt with the governing body for
private colleges not under corporate management and the managing council for
private colleges under corporate management. Under the provisions of these
sections, the educational agency or the corporate management was to establish a
governing body or a managing council respectively. The sections provided for
the composition of the two bodies It was held that the sections had the effect
of abridging the right to administer the educational institution of the
religious minority in question there.
One of the grounds given in the judgment for
upholding the decision of the High Court striking down the sections is that
these bodies had a legal personality distinct from governing bodies set up by
the educational. agency or the corporate management and that they were not
answerable to the founders in the matter of administration of the educational
institution. The Courtsaid that a law which (1) [1971 1S.C.R. 734.
815 interferes with the composition of the
governing body or the managing council as constituted by the religious or
linguistic minority is an abridgment of the right of the religious minorities
to administer the educational institution established by it [see also W. Proost
v. Bihar(1) and Rev. Bishop S. K. Patro v. Bihar (2) ].
The determination of the, composition of the
body to administer the educational institution established by a religious
minority must be left to the minority as that is the core of the right to
administer. Regulations to prevent maladministration by that body are
permissible. As the right to determine the composition of the body which will
administer the educational institution is the very essence of the right to
administer guaranteed to the religious or linguistic minority under Article
30(1), any interference in that area by an outside authority cannot be anything
but an abridgment of that right. The religious or linguistic minority must be
given the freedom to constitute the agency through which it proposes to
administer the educational institution established by it as that is what
Article 30(1) guarantees. The right to shape its creation is one thing :
the right to regulate the manner in which it
would function after it has come into being is another. Regulations are
permissible to prevent maladministration but they can only relate to the manner
of administration after the body which is to administer has come into being.
The provisions of Statute 14A are in pari
materia with those of s.33A(1)(a) of the Act which fell for consideration in
Ahmadabad St. Xavier's College case (supra) except that only the principal and
the senior-most member of the staff alone are required to be included in the
managing committee of the college in question here. But, in principle, that
makes no difference. The principle, as I said, is that the minority community
has the exclusive right to vest the administration of the college in a body of
its own choice, and any compulsion from an outside authority to include any
other person in that body is an abridgment of its fundamental right to
administer the educational institution.
It is, no doubt, true that it is upon the
principal and the teachers that the whole temper and the tone of a college
depend. But that does not mean that the principal and the teachers should be
members of the governing council of a college. It was only in the context of the
right of the religious or linguistic minority to appoint the principal and
teachers of the college established by it that we said in Ahmadabad St.
Xavier's College case (supra) "It is upon the principal and teachers of a
college that the tone and temper of an educational institution depend. On them
would depend its reputation, the maintenance of discipline and its efficiency
in teaching.
The right to choose the principal and to have
the teaching conducted by teachers appointed by the management after an overall
assessment of their outlook and philosophy is perhaps the most important (1)
[1969] 2 S.C.R. 73 at 77-78.
(2) [1969] 1 S.C.C. 863.
816 facet of the right to administer an
educational institution. We cart perceive no reason why a representative of the
University nominated by the Vice Chancellor should be on the Selection
Committee for recruiting the Principal or for the insistence of head of the
department besides the representative of the University being on the Selection
Committee for recruiting the members of the teaching staff. So_long as the
persons chosen have the qualifications prescribed by the University, the choice
must be left to the management.
That is part of the fundamental right of the
minorities to administer the educational institution established by them."
While affirming the correctness of the observation in the context in which it
was made, I think it necessary to repudiate its relevance and application here.
I would, therefore, allow the appeal without
any order as to costs.
KRISHNA IYER, J.--Our essay in this appeal is
to interpret and apply Art. 30 of the Constitution, illumined by the ratio of
the recent leading case on the constitutional rights of minorities vis-a-vis
educational institutions where a Bench of 11 Judges handed down six opinions on
the thorny issue. As we proceed to Judgment, we are reminded of two famous
American observations. Chief Justice Marshall, while deciding the celebrated
McColloch v. Maryland Case(1) made the pregnant remark : 'We must never forget
that it is the constitution we are expounding'. Governor Hughes, soon to ascend
the U.S. Supreme Court, said : 'We are under a Constitution, but the
Constitution is what the Judges say it is.' Reverentially guided and bound by
great precedents but mindful of the luminous texts and goals of the
Constitution itself, we have to attempt the task.
The facts of the present case are virtually
admitted, the precedent that binds us is of fresh vintage but the legal test
when applied to this concrete case-situation is fine, if not baffling. of
course, the only area for judicial exploration is decoct the rule from the
ruling and fit it to the admitted facts.
The appellant is a registered society formed
by the members of the Muslim community at Shahjehanpur. Indubitably, the
community ranks as minority in the country and the educational institution run
by it has been found to be what may loosely be called a 'minority institution,
within the constitutional compass of Art. 30. The earlier history of the
institution need not detain us and a rapid glance at its evolution is enough.
The A. V. Middle School was the offspring of the effort of the Muslim minority
resident in Shahjehanpur District. It later became a High School and afterwards
attained the status of an Intermediate College.
Eventually it blossomed into a degree college
affiliated to (1) 4 Wheaton 316, 407.
817 the University of Agra. In 1948, on the
assassination of the Father of the Nation, this college was commemoratively
renamed as Gandhi Faiz-e-am College. In August 1964, an application was made on
behalf of the college management to the University for permission to start
teaching in courses of study including Sociology, Sanskrit, Arabic, military
studies, drawing and painting. The University entertained the thought that a
new organisational discipline must be brought into the institution and
insisted, as a condition of recognition of these, additional subjects as course
of study, on certain mutations in the administrative body of the college. The
bone of contention before us, as was before the High Court, is that this
prescription by the University\,, in tune with Statute 14-A framed by it, is an
invasion of the fundamental right guaranteed to the minority community under
Art. 30 of the Constitution of India. The High Court has negatived the plea of
the management and the appeal issues from that decision.
,"'hat is the core of the restriction
clamped down by Statute 14-A What is the conscience and tongue of Art. 30 ? If
the former is incongruous with the latter, it withers as void; otherwise, it
prevails and binds. That is the crux of the controversy.
The minority college is administered by a
three-tier body organised intramurally by the Society. No outsider has entered
the precincts of management which has all along remained with the members only.
The General Council with plenary powers, the Governing body more circumscribed
yet effective as policy-maker and the Managing Committee, the day-to-day
administrative sub-agency-these are the organs vested with controlling power,
under the relevant rules of the Society. The essential point is that the
Society is that the Society is autonomous and its organs administer the
institution, The University directive, backed by Statute 14-A, it is contended,
forces two persons on the area of administration.
This is argued to be a serious erosion of the
great right guaranteed to cultural and religious minorities. Statute 14-A, may
at the outset, be reproduced "14-A. Each college, already affiliated or
when affiliated, which is not maintained exclusively by Government must be
tinder the Management of a regular constituted Governing body (which term
includes Managing Committee) on which the staff of the college shall be
represented by the Principal of the college and at least one representative of
the teachers of the college to be appointed by rotation in order of seniority
determined by length of service in the college, who shall hold office for one
academic year." Emboldened by this provision, the Registrar of the Agra
University has made the impugned demand which runs thus 818 Agra University
From Sri R. N. Pathak, Asst. Registrar (Affiliation), Agra University, Agra.
To The Principal, G. F. College,
Shahjahanpur.
No. Aff/7965 Dated Agra, 24 Apr. 1965 Sir,
With reference to your application dated December 1, 1964 recognition in
certain subjects upto the B. A. standard, I am to inform you that the Executive
Council at its meeting held on April 10, 1965 after considering the report of
the Inspectors on the inspection of your college and the recommendations of,
the relevant committee thereon decided that recognition applied for upto the B.
A. Standard be not granted to the college unless provision is made in the
constitution for representation of the Principal and one Head of Department to
be chosen in order of seniority every year on the Managing Committee (A the
college and other conditions have been fulfilled. I am therefore to request you
to take immediate steps to implement the aforesaid decision of the Council and
let me know that you have done so. On receipt of your reply the matter will be
further considered.
Yours faithfully, Sd/R. N. Pathak Asst.
Registrar (Affl)" Maybe, we may as well mention the stand taken by the
Management of the College in the correspondence with the Registrar. In one
reply it was represented "From The President,Managing Committee, G.F.
College, Shabjahanpur.
To The Deputy Registrar (AM), Agra
University.
No. 660 Dated, Shahjahanpur, Nov. 22, 1965
819 Sir.
With reference to your letter no. Affl /1336,
dated August 31, 1965 and subsequent reminder dated October 20, 1965, 1 have
the honour to say that we are very grateful to the University for its
acceptance of the minority status of our college.
While mentioning that the University has no
legal power to interfere in our right to administer the institution, we are
willing, to make the inclusion of the Principal and one Head of Department by
rotation obligatory in the Governing Body as proposed in the written legal
opinion of our counsel, (relevant extract of which has been forwarded to us
along with your letter under reference), simply for the reason that we are very
anxious to keep up smooth and cordial relations with the University.
The learned Vice-Chancellor is, therefore,
requested to grant us affiliation in all the new subjects in respect of which
our applications are pending at a very early date, to en-able us to make the
necessary preparations, which are likely to take sufficient time, to start the
classes in those subjects from the beginning of the next session.
We undertake to amend our constitution
suitably to give the proposal a practical shape within three months after the
receipt of your kind reply.
An early disposal of this letter is
solicited.
Yours faithfully,
Sd/-. .
President, Managing
Committee,
G. F. College,
Shahjahanpur."
This concession was retracted allegedly
because the University took no steps accepting it and a writ petition was filed
challenging the vires of the Statute 14-A and legality of the directive.
If reliance had been placed by the University
on this concession of the Management as amounting to a waiver of the
fundamental right, thereby making short shrift of the dispute, it would have
been difficult for us to accede, to the plea. Indeed, wisely no plea of waiver
of the Fundamental right has been put forward and perhaps none can be, in this
branch of constitutional jurisprudence. We are therefore concerned with
discerning the parameter of 'minority' right in Art. 30.
A stream of Supreme Court rulings commencing
with the Kerala Education Bill Case (1) and climaxed by St. Xavier's College
Case(2) has settled the law for the present, and the last refers to the
procedential past. We will confine ourselves largely to the currently final
pronouncement; but where did the Court draw the delicate line between
unconstitutional conditions and constitutional-regulations ? A certain thread
of unanimity exists among the many opinions and that common ground-not
individual deviations and different must be the basis of our judgment. Right at
the beginning we must observe.
(1) [1959] S.C.R. 995.
(2) A.I.R. [1974] S.C. 1389.
8 20 that the whole edifice of case law on
Art. 30 has been bedrocked on the Kerala Education Bill Case (supra), 'The
greatest common measure of agreement among the various opinions in St. Xavier's
College case (supra) will have to be ascertained. Ray, C.J., following Das C.J.
(in the first Kerala Case), has taken middle view, if one may say so with great
respect. 'Hands-off Administration altogether' is a tall call today; but
'hand-cuff managements into uniformity is also not the correct rule. A
benignantly regulated liberty which neither abridges nor exaggerates autonomy
but promotes better performance is the right construction of the constitutional
provision. Such an approach enables the fundamental right meaningfully to
fulfill its tryst with the minorities' destiny in a pluralist polity. That is
the authentic voice of Indian democracy. To regulate, be it noted, is not to
restrict. but to facilitate effective exercise of the very right. The
constitutional estate of the minorities should not be, encroached upon, neither
allowed to be neglected nor mal administered. This quintessence of the decision
may now be aptly home out by pertinent excerpts from the various judgments.
"The right to administer is to be
tempered with regulatory measures to facilitate smooth administration. The best
administration will reveal no trace or colour of minority. A minority
institution should shine in exemplary clectricism in the administration of the
institution" (at P. 1398) "Regulations which will serve the interests
of the students, regulations which will serve the interest of the teachers are
of paramount importance in good administration. Regulations in the interest of
efficiency of teachers, discipline and fairness in administration are necessary
for preserving harmony among affiliated institutions." (at p. 1398)
"Autonomy in administration means right to administer effectively and to
manage and conduct the affairs of the institutions...... The University will
always have a right to see that there is no maladministration. If there is
mat-administration, the university will take steps to ewe the same. There may
be control. and check on administration in order to find on,, whether the
minority institutions are engaged in activities which are not conducive to the
interest of the minority or to the requirements of the teachers and the
students." (at p. 1399).
The 'inner voice' of the whole pronouncement
should not be muffled while reading the particular result in the case and that
it happily expressed thus "The right conferred on the religious and
linguistic minorities to administer educational institutions of their choice is
not an absolute right. This right is not free from regulation. Just as
regulatory measures are necessary for maintaining the educational character and
contest of minority institutions similarly regulatory measures are necessary
for 821 ensuring orderly, efficient and sound administration. Das, C.J., in the
Kerala Education Bill Case (supra) summed up in one sentence the true meaning
of the right to administer by saying that the right to administer is not the
right to mal administer." (at p. 1396) Mr. Justice Jaganmohan Reddy summed
up the law at the threshold "The right of a linguistic or religious
minority to administer education-at institutions of their choice, though
couched in absolute, terms had been held by this Court to be subject to
regulatory measures which the State might impose for furthering the excellence
of the standards of education." (at p. 1401) Mr. Justice Khanna stressed
what is sometimes ill-remembered "The idea of giving some special rights
to the minorities is not to have a kind of a privileged or pampered section of
the population but to give the minorities a sense of security and a feeling of
confidence." (at p. 1415).' The learned Judge-, after visualising the
abundant catholicity of the guarantee in favour of minorities in our
multi-cultural country, insisted that regulations for the welfare of the
institution were not constitutional anathema:
"It is, in my opinion, permissible to
make regulations for ensuring the regular payment of salaries before a
particular date of the month. Regulations may well provide that the funds of
the institution should be spent for the purposes of education or for the
betterment of the institution and not for extraneous purposes." (at p.
1422) And, after itemising, illustratively other permissible constraints,
observed :
"A regulation which is designed to prevent
maladministration of an educational institution cannot be said to offend clause
(1) of Article 30. At the same time it has to be ensured that under the power
of making regulations nothing is done as would detract from the character of
the institution as a minority educational institution or which would impinge
upon the rights of the minorities to establish and administer educational
institutions of their choice." (at p. 1422) "As observed by this
Court in the case of Rev.
Sidhrajbhai Sabhai (1963 3 SCR 837),
regulations which may lawfully be imposed either by legislative or executive
action as a condition of receiving grant or of recognition must be directed to
making the institution while retaining its character as minority institution
effective as an educational institution. Such regulation must satisfy a dual
test-the test of reasonableness, and the test that it is regulative of the 8 22
educational character of the institution and is conducive to making the
institution an effective vehicle of education for the minority community or
other persons who resort to it." (at p. 1422) In the context of
affiliation of colleges, the learned Judge concreteness the law thus :
"The said authority can always prescribe
regulations and insist that they should be complied with before it would grant
affiliation or recognition to an educational institution. To deny the power of
making regulations to the authority concerned would result in robbing the
concept of affiliation or recognition of its real essence." (at p. 1423)
"It would be wrong to assume that an unrestricted right as in Article 30
postulates absence of regulations. Regulations can be prescribed in spite of
the unrestricted nature of the right." (at p. 1423) In short, the view
which appealed to Khanna J., shows that the law, to be constitutional, should
not impair the minorities' right but may, be promotional in the sense of making
the purpose of the institution more productive.
One of us, sitting on that Bench (Mr. Justice
Mathew) has illumined the amplitude of the right under Art. 30 but has not
dissented from the validity of putting on that right regulatory harness. In a
pithy statement, this point has been made by the learned Judge: 'No right,
however absolute, can be free from regulation' (at p. 1441). The spiritual seed
of this thought is found in the Holmesian observation extracted by him :
"All rights tend to declare themselves
absolute to their logical extreme. Yet all in fact are limited by the
neighbourhood of principles of policy which are other than those on which the
particular right is founded, and which become strong enough to hold their own
when a certain point is reached." (at p. 1441) With specific reference to
'affiliation' these guidelines fell from the learned Judge :
"Recognition or affiliation creates an
interest in the university to ensure that the educational institution is
maintained for the purpose intended and any regulation which will subserve or
advance that purpose will be reasonable and no educational institution
established and administered by a religious or linguistic minority can claim
recognition or affiliation without submitting to those regulations. That is the
price of recognition or affiliation.. . . In other words, recognition or
affiliation is a facility which the university grants to an educational
institution." (at p. 1442) Justices Beg and Dwivedi have stretched the
regulatory power further than the majority, holding that it is an illusion for
a minority 8 23 to claim absolute immunity. The thrust of the case is that real
regulations are desirable, necessary and constitutional but, when they operate
on the 'administration' part of the right, must be confined to chiselling into
shape, not cutting down out of shape, the individual personality of the
minority.
The discussion throws us back to a closer
study of Statute 14-A to see if it cuts into the flesh of the Managements'
right or merely tones up its health and habits. The two requirements the
University asks for are that the Managing Body (whatever its name) must take in
(a) the Principal of the College; (b) its senior-most teacher. Is this
desideratum dismissible as biting into the autonomy of management or tenable as
ensuring the excellence of the institution without injuring the essence of the
right ? On a careful reflection and conscious of the constitutional dilemma, we
are inclined to the view that this case Ms on the valid side of the delicate
line. Regulation which restricts is bad; but regulation which facilitates is
good.
Where does this fine distinction lie ? No
rigid formula is possible but a flexible test is feasible. Where the object and
effect is to improve the tone and temper of the administration without forcing
on it a stranger, however superb his virtues be, where the directive is not to
restructure the governing body but to better its performance by a marginal
catalytic induction, where no external authority's fiat or approval or outside
nominee is made compulsory to validate the Management Board but inclusion of an
internal key functionary appointed by the autonomous Management alone is asked
for, the provision is salutary and saved, being not a diktat eroding the
freedom of the freedom.
A dichotomy is sometimes drawn in this branch
of juridical discussion. More plainly,. the difference drawn is between
creating a Managing body by the minority community and regulation of the manner
of its functioning to obviate maladministration. The former is ordinarily
beyond the pale of legislative prescription while the latter is permissible as
a preservative. Broadly, this is sound, but as a rigid logical formula it
breaks down. For, some regulations may impinge marginally upon the composition
of the administrative organ though manifestly meant to save the institution
from mismanagement. Just one or two examples.
If the law says that a person that a person
sentenced for a prescribed period of imprisonment for breach of trust or an un discharged
insolvent would be disqualified to be the treasurer or one who has been removed
from public office for moral delinquency or has been punished for outraging the
religious feelings of the very minority under s.295-A, I.P.C. should not hold
office on the govern my body, such a regulation affects the structure of the
governing body but is indubitably a protection against likely
maladministration. Likewise, supposing the management has to award scholarships
to students of merit, decide on courses of study to be undertaken, regulate
teacher-students committee and discipline, who but the Principal chosen by the
minority itself will be better on the Committee to guide it in these vital
affairs. These fine but real lines cannot be obfuscated by excessive emphasis
on the character of the organ as against its method of working. Men matter in
extreme situations.
824 This perspective helps us discern the
points made by either side.
The pith of Shri Frank Anthony's submission
is that the command of the University to include even the Principal, the head
appointed by that very Management to be in plenary charge of the education
imparted in the college, is an invasion of the minority right. Freedom from any
form of external pressure, however well-meant and beneficent, is the soul of
the right to administer, if one may paraphrase his contention. This is simply
countered by the words of Khanna J :
"It would be wrong to assume that an
unrestricted right as in Article 30 postulates absence of regulations.
Regulations can be prescribed in spirt of the unrestricted nature of the
right." (at p. 1423) All the other learned Judges who are party to St.
Xavier (supra) and all the earlier rulings have negatived the untouchable
absoluteness urged by the managements. Equally fallacious is the simplistic
submission which appears to have appealed to the High Court that Art. 30 is
disturbed only when the right is destroyed, not when it is damaged.
St. Xavier (supra) has dispelled doubts in
this behalf :
Abridgement of the constitutional right is as
obnoxious as annihilation. To cripple is to kill.
Steering clear of these unconstitutional
shoals let us again feel our way through the controversy. First, the principal.
In the eloquent words of one of the learned
Judges (Mathew, J.) in St. Xavier's case (supra) :
"It is upon the principal and teachers
of a college that the tone and temper of an educational institution depend. On
them would depend its reputation, the maintenance of discipline and its
efficiency in teaching.
The right to choose the principal and to have
the teaching conducted by teachers appointed by the management after an overall
assessment of their outlook and philosophy is perhaps the most important facet
of the right to administer an educational institution." (emphasis ours)
This strategic appointee must be chosen by the management with sedulos care and
his choice should not be 'externalised' by regulations. All right. But for the
excellent reason that the principal is the vital, vibrant and luscent presence
within the educational campus, no administration can bring out its best in the
service of the institution sans the principal. To alienate him is to
self-inflict wounds; to associate him is to integrate the academic head into
the administrative body for the obvious betterment of managerial insight and
proficiency. He is no stranger to the college but the commander appointed by
the management itself. A regulation which requires his inclusion in the
Governing Council imposes no external element nor exposes the college to the
espionage of one with dual loyalties. His membership on the Board is a blessing
in many ways and not a curse in any conceivable 825 way. After all the
functions of the Managing Committee, as set down in bye law 15, are :
"15. The Managing Committee shall(a)
Dispose of applications for scholarships and concession etc., received by the
Secretary or any other person.
(b) Check and pass account kept by the
treasurer, Secretary or Principal.
(c) Have powers to appoint, suspend, remove
or otherwise punish or dismiss any servant of the school or college or give
them promotion or make reductions in their salaries and grant them leave in
accordance with the Agra University rules as the case may be.
Provided that in case of dismissal or removal
or fine exceeding one month's pay or suspension for a period exceeding one
month, an appeal shall lie to the Governing Body whose decision shall be final.
The period for filing the appeal shall be 15 days from the receipt of the order
against which the appeal is to be preferred.
(d)See that the property of the institution,
whether movable or immovable, is properly managed and kept.
(e) Generally supervise the work of all the
Office bearers.
(f) To pass the annual budget, annual report
and dispose of the audit note.
(g) To sanction expenditure upto Rs. 25,000/in
the course of one year, irrespective of the budget provisions.
(h) To acquire by purchase, mortgage or
otherwise immovable or movable property for the institution and to sell or
otherwise dispose of movable property." An activist principal is an asset
in discharging these duties which, are inextricably interlaced with academic
functions. The principal is an invaluable insider-the Management's own
choice-not an outsider answerable to the Vice-Chancellor. He brings into the
work of the Managing Committee that intimate acquaintance with educational
operations and that necessary expression of student-teacher aspirations and
complaints which are so essential for the minority institution to achieve a
happy marriage between individuality and excellence. And the role of the
senior-most teacher, less striking maybe and more unobtrusive, is a useful
input into managerial skills, representing as he does the teachers and being
only a seasoned minion chosen by the management itself. After all, two
creatures of the Society on a 16member Managing Committee can bring light, not
tilt scales. Moreover, the Managing Committee itself is subject to the
hierarchical control of the Governing Body, and the General Council.
We see no force in the objection to the two
innocuous insiders being seated on the Managing Committee.
826 The various decisions of this Court where
legislative fetters have been struck down are cases in contrast. There, the
rules maim; here they improve. There the input upsets the balance; here the
addition is minimal and strengthens from within. There, are external mandates to
approve; here an internal principal is proposed to be dovetailed to make
administration more proficient without injury to independent action. In the
Kerala University Act Case(1) the vice of ss. 48 and summarised by Ray C.J., in
St. Xavier (supra) was stated thus "Those sections were found by this
Court to have effect of displacing the administration of the college and giving
it to a distinct corporate body which was in no way answerable to the
institution. The minority community was found to lose the right to administer
the institution it founded. The governing body contemplated in those sections
was to administer the colleges in accordance with the provisions of the Act,
statutes, ordinances, regulations, bye-laws and orders made there under. The
powers and functions of the governing body, the removal of the members and the
procedure to be followed by it were all to be prescribed by the statutes. These
provisions amounted to vesting the management and administration of the
institution in the hands of bodies with mandates from the University." (at
p. 1397) Likewise in Rev. Fr. W. Proost(3) the mischief was summed up in the
St. Xavier Case by Ray C.J.., in these words :
"This Court in Rev. Fr. W. Proost
Case(2) held that s.48-A of the Bihar Universities Act which came into force
from 1st March 1962, completely took away the autonomy of the governing body of
St. Xavier's College established by the Jesuits of Ranchi. Section 48-A of the
said Act provided inter alia that appointments, dismissals, removals, termination
of service by the governing body of the College were to be made on the
recommendation of the University Service Commission and subject to the approval
of the University. There were other provisions in that section, viz., that the
Commission would recommend to the governing body names of persons in order of
preference and in no case could the governing body appoint a person who was not
recommended by the University Service Commission." (at p. 1397) Again, the
same judgment pinpoints in these brief words, the unconstitutional sting in the
Bihar Case viz. Rt. Rev Bishop Patro(3) :
"In Rt. Rev. Bishop S. K. Patro v. State
of Bihar(3) the State of Bihar requested the Church Missionary Society School,
Bhagalpur to constitute a managing committee of the (1) State of Kerala v.
Very, Rev,. Mother Provincial; [1971] 1 S.C.R. 734.
(2) [19691 2 S.C. R. 73.
(3) [19701 1 S.C.R. 172.
827 school in accordance with an order of the
State. This Court held that the State authorities could not require the school
to constitute a managing committee in accordance with their order." (at p.
1397) The Gujarat Case of St. Xavier (supra) is a study in contrast, as stated
earlier. Sections 40 and 41 and s. 38 shackled the management, trenching
seriously upon the right to administer. The law, as now expounded, regards this
excess as unconstitutional.
In all these cases administrative autonomy is
imperilled transgressing purely regulatory limits. In our case autonomy is
virtually left intact and refurbishing, not restructuring, is prescribed. The
core of the right is not gouged out at all and the regulation is at once
reasonable and calculated to promote excellence of the institution--a text book
instance of constitutional conditions.
To project in bold relief the intrusion into
the administration of the provisions in the 2nd Kerala Case (supra), the D.A.V.
College Case(1) and St. Xavier's Case (supra) as against the innocuous
prescriptions bearing on management in the present case, we may make a vivid
comparison of the clauses. A chart may speak with eloquent clarity (1) 119711
Sup. S.C.R. 688.
828
----------------------------------------------------------Kerala University Act
Guru Nanak University Statutes (D.A.V. College)
---------------------------------------------------------(1) (2)
--------------------------------------------------------S.48-Governing body for
Statue 2(1) (a) private college not under corporate management A college
applying for admission (1) The educational agency to the privileges of a
private college other the University shall send a than a private college un letter
of application to der a corporate management the Register and shall shall
constitute in accords satisfy the Senate :
dance with the provisions of the statutes a
governing body consisting of following members namely : (a) That the College
shall (a) the principal of the have a regularly constituting private college;
ted governing body consist(b the manager of the of not more than 20 per Private
college; sons approved by the senate (c) a person nominated by and including
among others, the university on accorda2 representatives of thence with the
provisions University and the Principle that behalf contained of the college ex-off
in the states; icio.
(d) a person nominated by the Government;
(e) a Person elected in accordance with such
procedure as may be prescribed by the Statutes from among themselves by the
permanent teachers of the private college; and (f) not more than six persons
nominated by the educational agency.
(2) The governing body shall be a body
corporate having perpetual succession and a common seal.
(3) The manager of the private college shall
be the Chairman of the governing body.
(4) A member of the governing body shall hold
office for a period of four years from the date of its constitution.
(5) It shall be the duty of the governing
body to administer the private college in accordance with the provisions of
this Act and the Statutes, Ordinances Regulations rules, Bye-laws and Orders
made there under, 829 ---------------------------------------------------------Gujarat
University Act Statue 14-A (St. Xavier's College case) (impugned in the instant
case) ---------------------------------------------------------3 4
---------------------------------------------------------33-A.(1) Every college
(other 14.A,Each college, already than a Government college or affiliated or
when affiliate college maintained by the ed which is not maintained Government)
affiliated before exclusively by Government the commencement of the Guja must
be under the Management rat University (Amendment) of a regulat constituted Gov
Act, 1972 (hereinafter in this erning body (which term incl section referred to
as such udes Managing Committee) on commencement')which the staff of the
college shall be represented by the (a)shall be under the principle of the
college and at management of a governing least one representative of the body
which shall include teachers of the college to be amongst its members the Principal
appointed by rotation in order of the college, a of seniority determined by lenseniority
representative of the of service in the college the University nominated by who
shall hold office for one the Vice-Chancellor and three academic year.
representatives of the teachers of the
College and at least one representative each of the members of the non-teaching
staff and the students of the college, to be elected respectively from amongst
such teachers members of the non-teaching staff and students; and (b) that for
recruitment of the Principal and members of the teaching staff of a college
there is a selection committee of the college which shall it)clude-(1) in the
case of recruitment of the Principal, a representative of the University
nominated by the Vice Chancellor, and (2)in the case of recruitment of it
member of the teaching staff of the college, a representative of the University
nominated by the Vice-Chancellor and the Head of the Department, if any,
concerned with the subject to be taught by such member.
(2) Every college referred to in subsection
(1) shall,-(a) within a period of six months after such commencement,
constitute or reconstitute , its governing body in conformity with
subsection(1) , and (b) as and when occasion first arises after such commencement
for recruitment of the Principal and teachers of the college, constitute or
reconstitute its selection committee so as to be in conformity with sub-section
(1).
(3)The provisions of subsection (1) shall be
deemed to be a condition of affiliation of every college to in sub-section (1).
830
----------------------------------------------------------(1) (2)
----------------------------------------------------------(6) The powers and
functions of the governing body, 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, (7) Notwithstanding anything contained in
sub-section (6), decisions of the governing body shall be taken at meetings on
the basis of simple majority of the members present and voting.
S.49 Managing council for private colleges
under corporate management(a) one principal by rotation in such manner as may
be prescribed by the Statutes;
(b) the manager of the private college;
(c) a person nominated by the University in
accordance with the provisions in that behalf contained in the statute,, (d) a
person nominated by the Government;
(e) two persons elected in accordance with
such procedure as may be prescribed by the Statutes from among themselves by
the permanent teachers of all the private colleges; and (f) not more than
fifteen persons nominated by the educational agency.
(2) The managing council shall be a body
corporate having perpetual succession and a common seal.
(3) The manager of the private colleges shall
be the chairman of the managing council.
(4) A member of the managing council shall
hold office for a period of four years from the date of the Constitution.
(5) it shall be the duty of the managing
Council to administer 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.
831
----------------------------------------------------------1 2 ----------------------------------------------------------(6)
The powers and functions of 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.
(7) Notwithstanding anything contained in
sub-section (6), decisions of the managing council shall be taken at meetings
on the basis of simple majority of the members present and voting, S.63-Power
to regulate the management of private colleges :(4) If the governing body or
managing council, as the case may be, disapproves any decision taken by the
University in connection with the management of the private college the matter
shall be referred by the governing body or managing council, as the case may
be, to the Government, within one month of the date of receipt of the report
under subsection (3) who shall there upon pass such order there on as they
think fit and communicate the same to the governing body or managing council
and also to the University.
(6) The manager appointed under sub-section
(1) of section 50 shall be bound to give effect to the decisions of the
University and if at any time, it appears to the University that the manager is
not carrying out its decisions, it may, for reasons to be recorded in writing
and after giving the manager an opportunity of being heard, by order remove him
from office and appoint another person to be the manager after consulting the
educational agency.
----------------------------------------------------------In
the chart aforesaid, we have confined our attention to the 'management' facet
of the case but may mention that while in the earlier cases even the power to
appoint the principal and staff was controlled, in the instant case it is a
refreshing contrast.
First the D.A.V. College. He who runs and
reads will discover that Statute 2(1) (a) insists upon (a) a limit to the
strength of the governing body; (b) the approval of the Senate of the
University for the constitution of the governing body; and (c) the inclusion of
two representatives of the University as also the Principal of the college ex-officio.
To legislate for the governing body a rigid restriction on its members is to
deprive the minority of its free play in organising its management. To compel
approval by the Senate-an outside instrumentality-before the governing body can
have legal status, is a violent violation of Art. 30. To foist two
representatives of the 832 University--rank outsiders-is again an infringement
of the autonomy of the minority institution. The Court, in D.A. V.
College case (sup) upheld the complaint of
the college authorities thus "In our view there is no possible
justification for the provisions contained in Clauses 2(1)(a) and 17 or Chap. V
of the statutes which decidedly interfere with the rights of management of the
Petitioners Colleges. These provisions cannot therefore be made as conditions
of affiliation, the noncompliance of which would involve disaffiliation and
consequently they will have to be struck down as offending Article 30(1)."
It is impossible to predicate from the above observations that tills Court
regarded as obnoxious the inclusion of the Principal of the very college. On
the other hand, the more serious encroachment which caved into the independent
management of the College consists in the first three provisions which are
deprivation in character. The present case is a graphic contrast. No ceiling on
membership; no unbidden guests, nominees of the University fobbed offon the
Managing Committee. The solitary but inconsequential similarity of circumstance
that there is reference to the Principal, there and here, cannot approximate
the two cases from the constitutional angle at all, what with complete hold on
staff appointment in the former and non in the latter.
The Kerala Case (supra), as the table above
shows, insists oil the appointment of the Principal himself being controlled,
displaces the minority's Managing Committee by imposing an admixed governing
agency of statutory concoction wresting authority from the minority. A
different entity with legislatively limited functions robs the religious group
of its right of administration. The distance between the Kerala University Act
provisions and those of the Agra University Act is considerable and the constitutional
import too obvious to]. argument.
The manacle regulations of the Gujarat
University Act are also tell-tale. Its metamorphic impact is best summed up in
the terse words of Ray, C.J. The minority character of the college is lost.
Ministry institutions became part and parcel of the University. Why Because:
The provisions contained in section 33-A(1)
(a) of the Act state that every college shall be under the management of a
governing body which shall include amongst its members, a representative of the
University nominated by the Vice-Chancellor and representatives of teachers,
non-teaching staff and students of the college 833 "In (1971) 1 SCR 734
(State of Kerala v. Very Rev. Mother Provincial) this Court said that if the
administration goes to a body in the selection of whom the founders have no
say, the administration would be displaced. This Court also said that
situations might be conceived when they might have a preponderating voice. That
would also affect the autonomy in administration. The provisions contained in
section 33-A(1) (a) of the Act have the effect of displacing the management and
entrusting it to a different agency. The autonomy in administration is lost.
New elements in the shape of representatives of different types are brought in.
The calm waters of an institution will not only be disturbed but also mixed.
These provisions in Section 33-A(1) (a) cannot therefore apply to minority
institutions." (at p. 1399) The features of the Agra University Act
vis-a-vis the minority institutions are conspicuously different and leave
almost unaffected the total integrity of the administration by the religious
group, save in the minimal inclusion of two internal entities namely the
principal of their own choice and the senior-most lecturer independently
appointed by them.
We are satisfied that the regulatory clauses
challenged before us improve the administration and do not inhibit its autonomy
and are therefore good and valid.
We therefore hold that the statute impugned
is not vulnerable nor void. The appeal has to be and is dismissed, but without
costs in the circumstances of this case.
ORDER In accordance with the opinion of the
majority, the appeal is dismissed without any order as to costs.
V.P.S. Appeal dismissed.
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