All Saints High School, Hyderabad Vs.
Government of Andhra Pradesh & Ors [1980] INSC 18 (4 February 1980)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V.
((CJ) FAZALALI, SYED MURTAZA KAILASAM, P.S.
CITATION: 1980 AIR 1042 1980 SCR (2) 924 1980
SCC (2) 478
CITATOR INFO :
RF 1984 SC1512 (2) R 1984 SC1757 (2) R 1987
SC 311 (12,17,19) RF 1987 SC1210 (4,5,7,8,9,11) R 1988 SC 37 (16,18) D 1988 SC
305 (16,17) RF 1991 SC 101 (263,271) R 1991 SC2230 (4)
ACT:
Andhra Pradesh Recognised Private Educational
Institutions Control Act 1975-Sections 3 to 7-Validity of- Provisions if
violate constitutional guarantee in Art.
30(1).
Constitution of India 1950-Article
30(1)-Andhra Pradesh Recognised Private Educational Institutions Control Act,
1975-If offends against Art. 30(1).
HEADNOTE:
The purported object of the Andhra Pradesh
Recognised Private Educational Institutions Control Act 1975 was to regulate
the service conditions of teachers in private educational institutions and for
ensuring the security of service of the teachers. Section 3(1) of the Act
provides "Subject to any rule that may be made in this behalf, no teacher
employed in any private educational institution shall be dismissed, removed or
reduced in rank nor shall his appointment be otherwise terminated except with
the prior approval of the competent authority". The proviso to this
sub-section states that if any educational management etc.
contravenes the provisions of this
sub-section, the teacher affected shall be deemed to be in service. Where a
proposal to dismiss etc. any teacher is communicated to the competent
authority, according to sub-section (2) of this section, that authority shall,
if satisfied that there are adequate and reasonable grounds for such proposal
approve such dismissal, removal or reduction in rank or termination of
appointment. Clause (a) of sub-section (3) of this section states that no
teacher employed in any private educational institution shall be placed under
suspension, except when an enquiry into the gross misconduct of such teacher is
contemplated. Clause (b) provides that no such suspension shall remain in force
for more than a period of two months from the date of suspension and if such
inquiry is not completed with that period, such teacher shall, without
prejudice to the inquiry, be deemed to have been r restored as teacher. The
proviso states that the competent authority may, for reasons to be recorded in
writing, extend the said period of two months for a further period not
exceeding two months, if in his opinion, the inquiry could not be completed
within the said period of two months for reasons directly attributable to each
teacher. Section 4 gives a right of appeal to teachers employed in private
educational institutions against orders of punishment imposed on them.
Section 5 deals with special provisions
regarding appeal in certain past disciplinary cases.
Section 6 which deals with retrenchment of
teachers provides that where retrenchment of any teacher is rendered necessary
consequent on any order of the Government relating to education or course of
instructions or to any other matter, such retrenchment may be effected with the
prior approval of the competent authority.
Section 7 provides for payment of pay and
allowances to teachers in the prescribed manner.
925 The appellants who were minority
educational institutions established by members of the Christian community
filed writ petitions before the High Court impugning various provisions of the
Act as being violative of the guarantee contained in Article 30(1) of the
Constitution by permitting or compelling interference with the internal
administration of their private educational institutions. In particular they
challenged the provisions of sections 3 to 7 of the Act on the ground that they
deprive them of their right to administer the affairs of minority institutions
by vesting the ultimate administrative control in an outside authority. The
contentions having been rejected by the High Court they filed appeals by
special leave.
HELD s Permajority-(Chandrachud, C.J., and
Fazal Ali, J.-Kailasam,J., dissenting.):
Sub-sections (1) and (2) of section 3 are
invalid and cannot be applied to minority institutions.
Per majority-(Chandrachud, C.J., and Kailasam
J.-Fazal Ali, J. dissenting).
Clauses (a) and (b) of section 3(3) do not
offend against Art. 30(1) and are valid.
By the Court: Sections 4 & 5 are
unconstitutional as being violative of Art. 30(1).
Per majority (Chandrachud, C.J., and Kailasam
J-Fazal Ali, J, dissenting).
Section 6 is valid.
By the Court: Section 7 is valid.
Per Chandrachud, C.J.
Section 3(1) and 3(2) are unconstitutional in
so far as they are made applicable to minority institutions since in practice
these provisions are bound to interfere substantially with their right to
administer institutions of their choice. [937E]
1. (a) Section 3(1) gives an unqualified
mandate that no teacher shall be dismissed etc. except with the prior approval
of the competent authority. Under the proviso, contravention of the section
results in a total invalidation of the proposed action. If the section is
contravened the teacher shall be deemed to be in service. Secondly, the sub-
section applies not only to cases in which the teacher is punished by an order
of dismissal etc. but to cases in which the appointment is otherwise
terminated. An order of termination simply citer is also required to be
submitted for the prior approval of the competent authority. All this shows
that the true object of the sub-section is not that which one could liberally
assume by reading down the section. [935H; 936AB] (b) In the absence of any
rules furnishing guidelines on the subject, it is difficult to predicate that
in practice the operation of the section would be limited to a certain class of
cases only. The absence of rules on the subject makes the unguided discretion
of the competent authority the sole arbiter of the question as to which cases
would fall within the section and which would fall outside it. [936 E-F] (c)
Section 3(2), under the guise on conferring the power of approval, confers upon
the competent authority an appellate power of great magnitude. That authority
is made a judge both of facts and on law by the conferment upon 926 it of a
power to test the validity of the proposal on the vastly subjective touchstone
of adequacy and reasonableness.
The sub-section leaves no scope for reading
down the provision of section 3(1). The two sub-sections together confer upon
the competent authority, in the absence of proper rules, a wide and untrammeled
discretion to interfere with the proposed order whenever in its opinion the
order is based on grounds which do not appear to it either adequate or
reasonable. [936G-H; 937A] (d) Though the section provides that the competent
authority "shall" approve the proposed order if it is satisfied that
it is based on adequate and reasonable grounds, its plain and necessary
implication is that it shall not approve the proposal unless it is satisfied.
The conferment of such a power on an outside authority, the exercise of which
is made to depend purely on subjective consideration arising out of twin
formula of adequacy and reasonableness, cannot but constitute an infringement
of the right guaranteed by article 30(1). [937C] State of Kerala v. Very. Rev.
Mother Provincial [1971] 1 SCR 734, D.A.V. College v. State of Punjab [1971]
Suppl.
S.C.R. 688 and Ahmedabad st. Xaviers College
Society v. State of Gujarat [1975] 1 S.C.R. 173; referred to.
2. (a) Section 3(3)(a) and 3(3)(b) of the Act
do not offend against the provisions of article 30(1) and are valid. [939B-C]
(b) Clause (a) contains but an elementary guarantee of freedom from
arbitrariness to the teachers. The provision is regulatory in character since
it neither denies to the management the right to proceed against an earring
teacher nor does it place an unreasonable restraint on its power to do so. It
assumes the right of the management to suspend a teacher but regulates that
right by directing that a teacher shall not be suspended unless an inquiry into
his conduct is contemplated and unless the inquiry is in respect of a charge of
gross misconduct. These restraints which bear a reasonable nexus with
attainment of educational excellence cannot be considered to be violative of
the right given by article 30(1). The limitation of the period of suspension
initially to two months, which can in appropriate cases be extended by another
two months, as provided in clause (b) and its proviso, partakes of the same
character as the provisions contained in clause (a). A provision founded so
patently on plain reason is difficult to construe as an invasion of the right
to administer an institution unless that right carried with it the right to
maladminister. [938 G-H]
3. Section 4 is unconstitutional as being
violative of article 30(1) of the constitution. The section confers upon the
government the power to provide by rules that an appeal might lie to such
authority or officer as it designates, regardless of the standing or status of
that authority or officer. Secondly an appeal is provided for on all questions
of fact and law, thereby throwing open the order passed by the management to
the unguided scrutiny and unlimited review of the appellate authority, which
would mean that, in the exercise of the appellate power, the prescribed
authority or officer can substitute his own view for that of the management
even in cases in which two views are reasonably possible. Lastly, while a right
of appeal is given to the aggrieved teacher against the order passed by the
management, no corresponding right is conferred on the management against the
order passed by the competent authority under section 3(2) of the Act. In the
absence of a provision for appeal against the order of the competent autho- 927
rity refusing to approve the action proposed by the management, the management
is pleased in a gravely disadvantageous position vis-a-vis the teacher who is
given the right of appeal by section 4. [939D-H] Section 5 must fall with
section 4. [940B]
4. Section 6 is valid. The section aims at
affording a minimal guarantee of security of tenure to teachers by eschewing
the passing of mala-fide orders in the garb of retrenchment. It is implicit in
the provisions of this section that the limited jurisdiction which it confers
upon the competent authority is to examine whether, in cases where the
retrenchment is stated to have become necessary by reason of an order passed by
the Government, it has in fact so become necessary. The conferment of a guided
and limited power on the competent authority for the purpose of finding out whether,
in fact the retrenchment has become necessary by reason of a Governmental order
cannot constitute an interference with the right of administration conferred by
article 30(1). [940D-F] Section 7 is regulatory in its character and is valid.
[940H] Per Fazal Ali, J.
On an exhaustive analysis of the authorities
of this Court on the various aspects of the fundamental right enshrined in
article 30(1) of the Constitution the following propositions of law emerge:-
(i) Article 30(1) enshrines the fundamental right of the minority institutions
to manage and administer their educational institutions.
[967H] (ii) Although, the right conferred by
this article is absolute, unfettered and unconditional, it does not mean that
it gives a licence for maladministration so as to defeat the avowed object of
the article, namely to advance excellence and perfection in the field of
education. [968B] (iii)While the State or any other statutory authority has no
right to interfere with the internal administration of the minority
institution, it could take regulatory measures to promote the efficiency and
excellence of educational standards and issue guidelines for ensuring the
security of the services of the teachers and other employees of the
institution. [968C] (iv) Under the garb of adopting regulatory measures, the
State or any other authority cannot destroy the administrative autonomy of the
institution or interfere with the management of the institution so as to render
the right of administration of the management of the institution illusory.
[968E] (v) By its very nature article 30 implies that where an affiliation is
asked for, the university cannot refuse the same without sufficient reason or
try to impose such conditions as would completely destroy the autonomous administration
of the educational institution. [968G] (vi) Induction of an outside authority
in the governing body of the minority institution to conduct the affairs of the
institution would be completely destructive of the fundamental right under
article 30(1), where a high authority like the Vice-Chancellor or his 928
nominee is appointed in the administration, such authorities should not be
thrust so as to have a controlling voice in the matter overshadowing the powers
of the managing committee. [968H] (vii)It is open to the Government or the
University to frame rules and regulations governing the conditions of service
of teachers in order to secure their tenure of service and to appoint a high
authority to see that the rules are not violated or the members of the staff
are not victimised. In such cases the purpose is not to interfere with the
autonomy of the institution but merely to improve the excellence and efficiency
of education. Even so, an authority should not be given a blanket uncanalised
and arbitrary powers. [969E-F] (viii)Where a minority institution affiliated to
a university is enjoined to adopt courses of study of the syllabi or the nature
of books prescribed and the holding of examination to test the ability of the
students of the institution, it does not follow that the freedom contained in
article 30(1) of the Constitution is violated. [970A] (ix) Where a high
authority is appointed to exercise vigilance on the work of the teachers and to
ensure security of tenure for them the authority must be given proper
guidelines. Before coming to any decision which may be binding on the managing
committee the head of the institution or the senior member of the managing
committee must be associated and they should be allowed to have a say in the
matter. [970C] Kerala Education Bill, 1957, [1957] SCR 995; Sidhajbhai Sabhai
and Ors. v. State of Bombay and Anr. [1963] 3 SCR 837; Rev. Father W. Proost
& Ors. v. State of Bihar [1969] 2 SCR 73; State of Kerala etc. v. Veru Rev.
Mother Provincial etc. [1971] 1 SCR 734; D.A.V. College etc. v. State of Punjab
& Ors. [1971] Suppl. SCR 688 and The Ahmedabad St. Xaviers College Society
& Anr. etc. v. State of Gujarat [1975] 1 SCR 173; referred to.
1. (a) Section 3 in its entirety is
ultra-vires as being violative of article 30(1) and is wholly inapplicable to
the appellants who are minority institutions. [975B] (b) The proviso enjoins
that any contravention of the provisions would not affect the teachers who
would be deemed to be in service. It is manifest that in the absence of any
rules the proviso would have no application and even if it applied it would
amount to a serious inroad on the fundamental right of the minority
institutions to administer or manage their own affairs. [971H] (c) Sub-section
2 of section 3 is unconstitutional as being violative of article 30(1). It
suffers from the vice of excessive delegation of powers and confers undefined,
absolute and arbitrary powers to grant or to refuse sanction to any action
taken by the managing committee and almost reduces the institution to a
helpless position. [973B-C] (d) If the State wanted to regulate the conditions
of service of the teachers, it should have taken care to make proper rules
giving sufficient 929 powers to the management in the manner in which it was to
act. Induction of an outside authority into the institution and making his
decision final was a blatant interference with the autonomy of the institution.
The words "adequate and reasonable" are too vague and do not lay down
any objective standard to judge the discretion to be exercised by the competent
authority whose order would be binding on the institution. [972F-G] (e) While
section 4 gives a right of appeal to the aggrieved teacher no such right has
been given to the management to file an appeal against the order of the
competent authority if it refuses to grant sanction to the order of the
Managing Committee of the institution. The competent authority is only the
District Educational Officer who is not a very high authority such as a
Director of Public instruction or Vice-Chancellor of a University. No time
limit has been fixed by the statute within which the competent authority is to
give its approval. The cumulative effect of clause (a) and (b) of section 3(3)
and the proviso is to interfere with the internal administration of the
minority institutions and curb the power of suspension. It deprives the
institution of the right of taking any disciplinary action against a teacher.
The adjective "gross" before the term "misconduct in clause (a)
destroys the power of suspension which the minority institution possesses. The
provision contained in clause (b) of section 3(3) providing that no suspension
shall remain in force for a period of more than two months from the date of
suspension and if no inquiry is completed within this period the teacher would
have to be reinstated, gives an unqualified right to a teacher in the matter of
suspension which even a government servant does not enjoy. [973A, 974D-E]
2. Section 4 is ultra-vires and is violative
of article 30 of the Constitution. It does not contain any guidelines as to the
manner in which the power could be exercised, nor does it contain any provision
which may entitle the minority institution to be heard by the appellate
authority. The conferment of an absolute and unguided power on the appellate
authority would amount to a direct interference with the right enshrined in
article 30(1) and makes the minority institution a powerless body. [976B; 975G]
3. If section 4 is inapplicable to the
minority institution Section 5 also follows the same fate. [976C]
4. Section 6 which contains an un-canalised
and unguided power suffers from the same vice as in the case of section 3. The
words "administer educational institutions of their choice" in
article 30 clearly indicate that the institution has an absolute right to
select teachers, retain them or retrench them at its sweet will according to
the norms prescribed by the institution or by the religious order which has
founded the institution. [976H] 5. Section 7 is an innocuous provision and is
valid. [977C]
6. Sections 8, 9, 12 and 13 are inapplicable
to the minority institutions. [977D, 978B]
7. Section 16 suffers from a serious defect
namely that the provision regarding appeal to the appellate authority was valid
then it completely bars the right of the management to file a suit to challenge
the validity of the order of the appellant. To this extent the section makes
serious inroad on the fundamental right of the minority institutions and is
inapplicable to the minority institutions. [978G] Section 17 is inapplicable.
[978F] 930 Per Kailasam, J.
1. A reading of the various decisions
rendered by this Court on the interpretation of article 30(1) of the
Constitution makes it clear that while the right to establish and administer a
minority institution cannot be interfered with, restrictions by way of
regulations for the purpose of maintaining the educational standards of the
institution can be validly imposed. For maintaining the educational standards
of the institution as a whole, it is necessary to ensure that it is properly
staffed. Conditions imposing the minimum qualifications of the staff, their pay
and other benefits, their service conditions, the imposition of punishment will
all be covered and regulations of such a nature are valid. In the case of
institutions that receive aid it is the duty of the government who grants aid
to see that the funds are properly utilised. Regulations can be made by the
government for ensuring the proper conditions of service of the teachers and
for securing fair procedure in the matter of disciplinary action against them.
Prescribing uniformity in the conditions of service and conduct of teachers in
all non-governmental colleges would promote harmony, avoid frustration and, therefore,
is permissible.
Rules prescribed by the university or other
authority may require that no member of the teaching or non-teaching staff of a
recognised or approved institution shall be dismissed etc., except after a
proper enquiry. If the regulations require the approval of the competent
authority for safeguarding the rights of the teachers and for securing the
procedure there can be no objection. Such authority can also interfere with the
decision of the private institutions when the punishment awarded is malafide or
by way of victimisation or for similar causes. [989B; 993D-G] Kerala Education
Bill [1959] SCR, 995, Rev. Sidhajbhai Sabhai & Ors. [1963] 3 SCR 837, Rev.
Father W. Proost and Ors. v. State of Bihar & Ors. [1969] 2 SCR 73, State
of Kerala v. Very. Rev. Mother Provincial [1971] 1 SCR 734, D.A.V. College etc.
v. State of Punjab & Ors. [1971] Suppl.
S.C.R. 688 and Ahmedabad St. Xaviers College
Society and Anr. etc. v. State of Gujarat [1975] 1 S.C.R. 173, referred to.
2. It is not only reasonable but proper that
a restricted meaning is given to the power of prior approval conferred on the
competent authority under section 3 of the Act. It is a well established
principle of interpretation that the statement of objects and reasons could be referred
to for the limited purpose of ascertaining the conditions prevalent at the time
which actuated the sponsor of the Bill to introduce the same and the extent of
urgency and the evil sought to be remedied. Clearly the legislation was
intended to regulate the service conditions of teachers employed in the private
educational institutions and for the security of service of the teachers. The
power contained in section 3(1) and 3(2) is restricted to regulating the
service conditions of teachers and for ensuring their security of service.
[1001C; 998A-B]
3. While interpreting a provision of law the
Court will presume that the legislation was intended to be intra vires and also
reasonable. The section ought to be interpreted consistent with the presumption
which imputes to the legislature an intention of limiting the direct operation
of its enactment to the extent that is permissible. A reading down of a
provision of a statute puts into operation the principle that so far as it is
reasonably possible to do so, the legislation should be construed as being
within its power. It has the principle effect 931 that where an Act is
expressed in language of generality, which makes it capable, if read literally,
of applying to matters beyond the relevant legislative powers, the Court will
construe it in a more limited sense so as to keep it within power. [998E-F] The
State of West Bengal v. Subhodh Gopal Bose and Ors. SCR 587, Att. Genl. v. HRH
Prince Earnest Augstas of Hanover, [1957] A.C. 436, Keshavananda Bharti v.
State of Kerala [1973] Suppl. S.C.R. 1, 101, Towns v. Bigner 245 U.S. 413-62
L.ed. 372, 376 and Kedar Nath Singh v. State of Bihar [1962] 2 Suppl. SCR 769;
referred to.
In the instant case it must be presumed that
the legislature was conscious of the limitations of the power which the
competent authority can have in granting or withholding approval in the case of
disciplinary proceedings conducted by private institutions. The object of the
legislation in this case was very different from other cases in which the
legislation was aimed at depriving the minority institutions of all their
powers. Its only aim is to provide security of service. There are sufficient
guidelines in the objects and reasons as well as in the preamble. [1001 B-C]
4. (a) The contention that section 3(1) and
(2) lack guidelines and have conferred a blanket power cannot be accepted.
Section 3(1) and (2) must be read together. The words "adequate and
reasonable" should be given a restricted meaning so as to validate the
provisions of the section. The approval of an order contemplated by sub-section
(2) will have to be read with sub-section (1). Sub-section (2) required the
competent authority to approve such a proposal if it is satisfied that there
are adequate and reasonable grounds for such proposal. The words "adequate
and reasonable" furnish sufficient guidelines. The competent authority can
interfere if there are no materials at all for sustaining the order of
punishment or when on the materials found the charge is completely baseless and
preserve. The word "adequate" will have to be understood as being
confined to such examination of the proposal. The word "reasonable"
would indicate that the power of the competent authority is confined to the
power of an authority to interfere with the enquiry and the conclusions arrived
at by the domestic tribunal. It cannot be understood as conferring absolute
power to interfere with the enquiry by the tribunal as a Court of appeal on
merits. [1002E; 1001G-H] (b) The plea that the "competent authority"
may be any petty officer cannot be upheld because it is defined in section 2(1)
to mean "any authority, officer or person authorised by notification
performing the functions of competent authority". The officers of the
educational department who are incharge of the administration of educational
institutions in the area cannot be called petty officers. [1002H] (c) Clauses
(a) and (b) of sub-section (3) cannot be said to interfere with the right of
administration of the private institutions. The two clauses are regulatory in
nature and are intended to safeguard the teachers from being suspended for
unduly long periods without there being an enquiry into "gross
mis-conduct." [1003C] (d) Sub-section (4) of section 3 which states that
every teacher placed under suspension shall be paid subsistence allowance at
such rates as may be 932 prescribed during the period of his suspension is
purely regulatory in nature and, therefore, unobjectionable.
[1003D]
5. Section 4 is invalid. The vice contained
in this section is that the right of appeal which is confined only to the
teachers is not available to institutions. [1003F]
6. Section 5 which confers power on the
competent authority to hear appeals in certain past disciplinary cases will
have to fall along with section 4. [1003G]
7. Section 6 is also regulatory in nature and
its validity cannot be questioned. [1003H]
8. Section 7 is regulatory in nature and is
intended for securing regular payment to the teachers. [1004A]
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 1280, 1279, 1327-1330 of 1978 and 35 of 1979.
Appeals by special leave from the Judgment
and Order dated 2-8-1978 of the Andhra Pradesh High Court in Writ Petition Nos.
718, 5505, 3618, 5506, 5518, of 1975 and 604/78 and 4814/1975.
L. N. Sinha, K. Srinivasa Murthy, Naunit Lal
and M.
Panduranga for the Appellants in CA Nos.
1279, 1280, 1327- 1330/78.
S. N. Kackar, Sol. Genl., Venkatarao and G.
N. Rao for R. 1 in CA 1280, RR 1-3 in CAs. 1327 & 1329 and RR 1 & 2 in
1328 & 1330.
H. S. Gururaja Rao and S. Markendaya for RR
2-3 in CA 1280 and R. 4 in CA 1279.
K. M. K. Nair for R. 4 in CA 1329 S.
Balakrishnan for R. 8 in CA 1329 G. Narasimhulu for R. 3 in CA 1330 B.
Parthasarthi for the Appellant in CA 35/79.
B. Kanta Rao for the RR 4-5 in CA 35/79.
The following Judgments were delivered
CHANDRACHUD, C.J.-Article 30(1) of the Constitution provides:
All minorities, whether based on religion or
language, shall have the right to establish and administer educational
institutions of their choice.
The question which arises in these appeals is
whether certain provisions of the Andhra Pradesh Recognised Private Educational
Institutions Control Act, 11 of 1975, offend against the fundamental right 933
conferred on minorities by Art. 30 (1). The appellants are unquestionably
minority educational institutions, having been established by members of the
Christian community.
My learned Brothers, Murtaza Fazal Ali and
Kailasam, have examined the authorities bearing on the question before us. The
reasons which impelled me to write a separate judgment are my inability to
agree wholly with the various observations made by Justice Fazal Ali and with
some of the propositions which he has formulated as emerging from the decisions
referred to by him, as also with the conclusion to which Justice Kailasam has
come. I do not consider it necessary to examine all the decisions of this Court
in which Art. 30(1) has received a full and careful consideration. These
decisions are reported in Re Kerala Education Bill 1957, Rev. Sidhajbhai Sabhai
v. State of Bombay Rev. Father W. Proost v. The State of Bihar State of Kerala
v. Very Rev. Mother Provincial D. A. V. College v.
State of Punjab The Ahmedabad St. Xaviers
College Society v. State of Gujarat Gandhi Faizeam College Shahajahanpur v. University
of Agra and Lilly Kurian v. Sr. Lewina Almost each succeeding judgment has
considered and analysed the previous judgment or judgments. I regard the matter
arising before us as well-settled, especially after the 9-Judge Bench decision
in Ahmedabad St. Xaviers College Society (supra) and the recent judgment of the
Constitution Bench in Lilly Kurian, All that we have to do in this case is to
apply the law laid down in these decisions.
These decisions show that while the right of
the religious and linguistic minorities to establish and administer educational
institutions of their choice cannot be interfered with, restrictions by way of
regulations for the purpose of ensuring educational standards and maintaining
the excellence thereof can be validly prescribed. For maintaining educational
standards of an institution, it is necessary to ensure that it is competently
staffed. Conditions of service which prescribe minimum qualifications for the
staff, their pay scales.
their entitlement to other benefits of
service and the laying down of safeguards which must be observed before they
are removed or dismissed from service or their services are terminated are all
permissible measures 934 of a regulatory character. As observed by Das C.J., in
Re:
Kerala Education Bill, (supra) "Right to
administer cannot obviously include the right to mal-administer", and in
the words of Shah J., in Rev. Sidhajbhai, (supra) "The right is subject to
reasonable restrictions in the interest of efficiency of instruction,
discipline, health, sanitation, morality, public order and the like".
Hidayatullah C.J. said in Very Rev. Mother Provincial (supra) that
"Standards of education are not a part of management as such", that
the "minority institutions cannot be permitted to fall below the standard
of excellence expected of educational institutions" and that "the
right of the State to regulate education, educational standards and the allied
matters cannot be denied". Justice Jaganmohan Reddy, in D. A. V. College
(supra) reiterated while upholding clause 18 of the Guru Nanak University,
Amritsar Act, 1961 that regulations governing recruitment and service
conditions of teachers of minority institutions, which are made in order to
ensure their efficiency and excellence do not offend against their right to
administer educational institutions of their choice.
In the case of institutions that receive
State aid, it is the duty and obligation of the Government which grants aid to
see that public funds are usefully and properly expended. If the expenditure
incurred for paying the emoluments of the staff is subsidised or financed from
out of State funds, it becomes the duty of the State to see that no one who
does not possess the minimum qualifications is appointed on the staff, the pay
and other emoluments of the staff are guaranteed and their service conditions
secured.
Minority institutions which receive State aid
cannot complain of conditions subject to which the aid is granted, so long as
such conditions do not amount to discrimination against them on the ground of
language or religion and so long as the aid is not made to depend upon the
performance or observance of conditions which amount to deprivation of the
right guaranteed by article 30(1). There is also no doubt that minority
institutions cannot be discriminated against in the matter of granting State
aid.
No institution, minority or majority, has a
fundamental right to recognition by the State or affiliation to the University,
but since recognition and affiliation are indispensable for an effective and
fruitful exercise of the fundamental right of minorities to establish and
administer educational institutions of their choice, they are entitled to
recognition and affiliation if they agree to accept and comply with regulatory
measures which are relevant for granting recognition and affiliation, which are
directed to ensuring educational excellence of 935 the institution concerned
and which, largely and substantially, leave unimpaired the right of
administration in regard to internal affairs of the institution.
The impugned Act, by reason of section 1 (3),
applies to all private educational institutions, whether or not they are
established by minorities. The appellants' contention is that several
provisions of the Act violate the guarantee contained in Art. 30(1) by
permitting or compelling interference with the internal administration of
private educational institutions established by minorities. The appellants are
particularly aggrieved by the provisions of sections 3 to 7 of the Act, the
validity whereof in challenged on the ground that they deprive the appellants
of their right to administer the affairs of minority institutions by vesting
the ultimate administrative control in an outside authority. These contentions
having been rejected by the High Court of Andhra Pradesh, the appellants have
filed these appeals by special leave.
Section 3 (1) of the Act provides that,
subject to any rule that may be made in this behalf, no teacher employed in any
private educational institution shall be dismissed, removed or reduced in rank
nor shall his appointment be otherwise terminated, except with the prior
approval of the competent authority. The proviso to the section says that if
any educational institution contravenes the aforesaid provision, the teacher
affected by the contravention shall be deemed to be in service. Section 3 (2)
requires that where the proposal to dismiss, remove or reduce in rank or
otherwise terminate the appointment of any teacher employed in any private educational
institution is communicated to the competent authority, that authority shall
approve the proposal, if it is satisfied that there are adequate and reasonable
grounds for the proposal.
For appreciating their true meaning and
effect, sections 3 (1) and 3 (2) have to be read together. The requirement of
prior approval of the competent authority to an order of dismissal, removal,
etc. may not by itself be violative of article 30 (1) because it may still be
possible to say, on a reasonable construction of the provision laying down that
requirement, that its object is to ensure compliance with the principles of
natural justice or the elimination of mala fides or victimisation of teachers.
But I find it difficult to read down section 3 (1) so as to limit its operation
to these or similar considerations. In the first place, the section does not
itself limit its operation in that manner; on the contrary, it gives an
unqualified mandate that no teacher shall be dismissed, removed, etc. except
with 936 the prior approval of the competent authority. Under the proviso
contravention of the section results in a total invalidation of the proposed
action. If the section is contravened the teacher shall be deemed to be in
service.
Secondly, section 3 (1) not only applies to
cases in which a teacher is, what is generally termed as 'punished', by an
order of dismissal, removal or reduction in rank, but it also applies to cases
in which an appointment is otherwise terminated. An order of termination
simpliciter which involves no stigma or aspersion and which does not result in
any evil consequences is also required to be submitted for the prior approval
of the competent authority. The argument that the principles of natural justice
have not been complied with or the argument of mala fides and victimisation has
seldom any relevance if the services are terminated in accordance with the
terms of a contract by which the tenure of the employment is limited to a
specified period. This shows that the true object of section 3 (1) is not that
which one could liberally assume by reading down the section.
Section 3 (1) is subject to any rules that
may be made in behalf of the matter covered by it. If the State Government were
to frame rules governing the matter, there would have been some tangible
circumstances or situations in relation to which the practical operation of
section 3(1) could have been limited. But in the absence of any rules
furnishing guidelines on the subject, it is difficult to predicate that, in
practice, the operation of the section will be limited to a certain class of
cases only. The absence of rules on the subject makes the unguided discretion
of the competent authority the sole arbiter of the question as to which cases
would fall within the section and which would fall outside it.
Any doubt as to the width of the area in
which section 3(1) operates and is intended to operate, is removed by the
provision contained in section 3 (2), by virtue of which the competent
authority "shall" approve the proposal, "if it is satisfied that
there are adequate and reasonable grounds" for the proposal. This
provision, under the guise of conferring the power of approval, confers upon
the competent authority an appellate power of great magnitude. The competent
authority is made by that provision the sole judge of the propriety of the
proposed order since it is for that authority to see whether there are
reasonable grounds for the proposal. The authority is indeed made a judge both
of facts and law by the conferment upon it of a power to test the validity of
the proposal on the vastly subjective touch- stone of adequacy and
reasonableness. Section 3 (2), in my opinion, leaves no scope for reading down
the provisions of section 937 3 (1). The two sub-sections together confer upon
the competent authority, in the absence of proper rules, a wide and untrammeled
discretion to interfere with the proposed order, whenever, in its opinion, the
order, is based on grounds which do not appear to it either adequate or
reasonable.
The form in which Section 3 (2) is couched is
apt to mislead by creating an impression that its real object is to cast an
obligation on the competent authority to approve a proposal under certain
conditions. Though the section provides that the competent authority "shall"
approve the proposed order if it is satisfied that it is based on adequate and
reasonable grounds, its plain and necessary implication is that it shall not
approve the proposal unless it is so satisfied. The confernment of such a power
on an outside authority, the exercise of which is made to depend on purely
subjective considerations arising out of the twin formula of adequacy and
reasonableness, cannot but constitute an infringement of the right guaranteed
by Art.
30 (1).
I find it difficult to save sections 3 (1)
and 3 (2) by reading them down in the light of the objects and reasons of the
impugned Act. The object of the Act and the reasons that led to its passing are
laudable but the Act, in its application to minority institutions, has to take
care that it does not violate the fundamental right of the minorities under
Art. 30(1). Sections 3(1) and 3(2) are in my opinion unconstitutional in so far
as they are made applicable to minority institutions since, in practice, these
provisions are bound to interfere substantially with their right to administer
institutions of their choice. Similar provisions were held to be void in Very
Rev. Mother Provincial, D. A. V. College and Lilly Kurian. (supra) There is no
distinction in principle between those provisions and the ones contained in
sections 3 (1) and 3 (2).
For these reasons, I am in agreement with
Brother Fazal Ali that Sections 3 (1) and 3 (2) of the impugned Act cannot be
applied to minority institutions, since to do so will offend against Article 30
(1).
Section 3 (3) (a) provides that no teacher
employed in any private educational institution shall be placed under
suspension except when an inquiry into the gross misconduct of such teacher is
contemplated. Section 3 (3) (b) provides that no such suspension shall remain
in force for more than a period of two months and if the inquiry is not
completed within that period the teacher shall, without prejudice to the
inquiry, be deemed to have been restored as 938 a teacher. The proviso to the
sub-section confers upon the competent authority the power, for reasons to be
recorded in writing, to extend the period of two months for a further period
not exceeding two months if, in its opinion, the inquiry could not be completed
within the initial period of two months for reasons directly attributable to
the teacher.
With respect, I find it difficult to agree
with Brother Fazal Ali that these provisions are violative of article 30 (1).
The question which one has to ask oneself is whether in the normal course of affairs,
these provisions are likely to interfere with the freedom of minorities to
administer and manage educational institutions of their choice. It is
undoubtedly true that no educational institution can function efficiently and
effectively unless the teachers observe at least the commonly accepted norms of
good behaviour. Indisciplined teachers can hardly be expected to impress upon
the students the value of discipline, which is a sine qua non of educational
excellence. They can cause incalculable harm not only to the cause of education
but to the society at large by generating a wrong sense of values in the minds
of young and impressionable students. But discipline is not to be equated with
dictatorial methods in the treatment of teachers. The institutional code of
discipline must therefore conform to acceptable norms of fairness and cannot be
arbitrary or fanciful. I do not think that in the name of discipline and in the
purported exercise of the fundamental right of administration and management,
any educational institution can be given the right to 'hire and fire' its
teachers. After all, though the management may be left free to evolve
administrative policies of an institution, educational instruction has to be
imparted through the instrumentality of the teachers; and unless, they have a
constant assurance of justice, security and fair play it will be impossible for
them to give of their best which alone can enable the institution to attain the
ideal of educational excellence. Section 3 (3) (a) contains but an elementary
guarantee of freedom from arbitrariness to the teachers. The provision is
regulatory in character since it neither denies to the management the right to
proceed against an erring teacher nor indeed does it place an unreasonable
restraint on its power to do so. It assumes the right of the management to
suspend a teacher but regulates that right by directing that a teacher shall
not be suspended unless an inquiry into his conduct is contemplated and unless
the inquiry is in respect of a charge of gross misconduct. Fortunately,
suspension of teachers is not the order of the day, for which reason I do not
think that these restraints which bear a reasonable nexus with the attainment
of educational excellence can be considered to be violative of the right given
939 by Art. 30 (1). The limitation of the period of suspension initially to two
months, which can in appropriate cases be extended by another two months,
partakes of the same character as the provision contained in section 3 (3) (a).
In the generality of cases, a domestic
inquiry against a teacher ought to be completed within a period of two months
or say, within another two months. A provision founded so patently on plain
reason is difficult to construe as an invasion of the right to administer an
institution, unless that right carried with it the right to maladminister. I
therefore agree with Brother Kailasam that sections 3 (3) (a) and 3 (3) (b) of
the Act do not offend against the provisions of Art. 30 (1) and are valid.
Section 4 of the Act provides that any
teacher employed in a private educational institution (a) who is dismissed,
removed or reduced in rank or whose appointment is otherwise terminated; or (b)
whose pay or allowances or any of whose conditions of service are altered or
interpreted to his disadvantage, may prefer an appeal to such authority or
officer as may be prescribed. This provision in my opinion is too broadly
worded to be sustained on the touchstone of the right conferred upon the
minorities by Art. 30 (1). In the first place, the section confers upon the
Government the power to provide by rules that an appeal may lie to such
authority or officer as it designates, regardless of the standing or status of
that authority or officer. Secondly, the appeal is evidently provided for on
all questions of fact and law, thereby throwing open the order passed by the
management to the unguided scrutiny and unlimited review of the appellate
authority. It would be doing no violence to the language of the section to
interpret it to mean that, in the exercise of the appellate power, the
prescribed authority or officer can substitute his own view for that of the
management, even in cases in which two views are reasonably possible. Lastly,
it is strange, and perhaps an oversight may account for the lapse, that whereas
a right of appeal is given to the aggrieved teacher against an order passed by
the management, no corresponding right is conferred on the management against
an order passed by the competent authority under section 3 (2) of the Act. It
may be recalled that by section 3 (1), no teacher can be dismissed, removed,
etc. except with the prior approval of the competent authority. Section 3 (2)
confers power on the competent authority to refuse to accord its approval if
there are no adequate and reasonable ground for the proposal. In the absence of
the provision for an appeal against the order of the competent authority
refusing to approve the action proposed by the management, the management is
placed in a gravely disadvantageous position vis-a-vis 940 the teacher who is
given the right of appeal by section 4.
By reason of these infirmities I agree with
the conclusion of my learned Brothers that section 4 of the impugned Act is
unconstitutional, as being violative of article 30 (1).
Section 5 is consequential upon section 4 and
must fall with it.
Section 6 provides that where any
retrenchment of a teacher is rendered necessary consequent on any order of the
Government relating to education or course of instruction or to any other matter,
such retrenchment may be effected with the prior approval of the competent
authority. With respect, I find myself unable to share the view of Brother
Fazal Ali that retrenchment of teachers is a purely domestic affair of minority
institutions and that the decisions of the management in the matter of
retrenchment of teachers is beyond the scope of statutory interference by
reason of Art.
30 (1). Section 6 aims at affording a minimal
guarantee of security of tenure to teachers by eschewing the passing of mala
fide orders in the garb of retrenchment. As I look at the section, I consider
it to be implicit in its provisions that the limited jurisdiction which it
confers upon the competent authority is to examine whether, in cases where the
retrenchment it stated to have become necessary by reason of an order passed by
the Government, it has in fact so become necessary. It is a matter of common
knowledge that Governmental orders relating to courses of instruction are used
as a pretence for terminating the services of teachers.
The conferment of a guided and limited power
on the competent authority for the purpose of finding out whether, in fact, a
retrenchment has become necessary by reason of a Government order, cannot
constitute an interference with the right of administration conferred by Art.
30 (1). Section 6 is therefore valid. I would, however, like to add that in the
interests of equal justice, the legislature ought to provide for an appeal
against the orders passed by the competent authority under section 6. If and
when the provision for an appeal is made, care must be taken to ensure that the
appeal lies to an officer not below the prescribed rank.
Section 7 provides that the pay and
allowances of a teacher shall be paid on or before such day of a month, in such
manner and by or through such authority, officer or person, as may be
prescribed. I agree with my learned Brothers that this provision is regulatory
in character and is, therefore, valid.
These are all the sections the validity of
which was questioned in the Writ Petitions filed in the High Court. It is
therefore not necessary to consider whether the other provisions of the Act are
valid or not.
I concur in the final order proposed by
Brother Kailasam that we need not go into the merits of each of the Writ
Petitions filed in the High Court. Learned counsel appearing for the schools
sought the decision of the High Court on the constitutional issue only. He
specifically asked the High Court not to decide each case on its merits.
That may, accordingly, be left to the High
Court to decide in the light of the majority opinion rendered by us. We have,
by a majority, held that sections 3 (3) (a), 3 (3) (b), 6 and 7 are valid while
sections 3 (1), 3 (2), 4 and 5 are invalid in their application to minority
education institutions. It must follow that such institutions cannot be
proceeded against for violation of provisions which are not applicable to them.
In conclusion, all the Civil Appeals before
us will go back to the High Court of Andhra Pradesh for final disposal on
merits in the light of our decision. There will be no order as to costs.
FAZAL ALI, J.: This batch of civil appeals by
special leave is directed against the judgment of the Andhra Pradesh High Court
before whom the appellants filed writ petitions under Article 226 of the
Constitution challenging the constitutional validity of several sections of the
Andhra Pradesh Recognised Private Educational Institutions Control Act, 1975,
hereinafter referred to as the Act which contained 21 sections in five Chapters
and was brought into force with effect from 5th October, 1974. This Act was
also applicable to 19 Educational Institutions situated in the State of Andhra
Pradesh and the appellants being admittedly minority educational institutions
within the meaning of Article 30 of the Constitution of India have challenged
the vires various sections of the Act which we shall indicate later.
Some of the appeals have been filed by
Christian Schools established by Roman Catholic Church and some by Christian
Colleges established by the Christian community:
The main grounds of challenge are that the
provisions of the Act directly interfere with the internal management of the
institutions and has completely curbed the constitutional freedom which has
been guaranteed to them by Article 30(1) of the Constitution of India and being
violative of Article 30(1) of the Constitution are ultra vires and therefore,
wholly inapplicable to the appellants institutions.
It is now well settled by a long course of
decisions of this Court that our Constitution which seeks to establish a
secular State contains 942 sufficient checks and balances, safeguards and
guarantees to protect the rights of the minorities, the establishment of
educational institutions being one of them. Article 46 which contains the
constitutional directive to promote educational and economic interests of the
weaker sections runs thus:- "46. Promotion of educational and economic
interests of Scheduled Castes, Scheduled Tribes and other weaker sections:
The State shall promote with special care the
educational and economic interests of the weaker sections of the people, and,
in particular, of the Scheduled Castes and the Scheduled Tribes, and shall
protect them from social injustice and all forms of exploitation.
Article 30(1) confers a fundamental rights on
the minorities to establish and administer educational institutions of their
choice. Article 30(2) enjoins on the State that in granting aid to the
educational institutions it shall not discriminate against any educational
institution on the ground that it is under the management of a minority,
whether based on religion or language. Thus, it would appear that Article 30(2)
extends the guarantee contained in Article 30(1) even in the matter of receiving
aid by the educational institution established by the minority community. While
adverting to this aspect of the matter this Court in Re: Kerala Education Bill,
1957 observed as follows:- "Nevertheless, in determining the scope and
ambit of fundamental rights relied on by or on behalf of any person or body the
court may not entirely ignore these directive principles of State policy laid
down in Part IV of the Constitution but should adopt the principle of
harmonious construction and should attempt to give effect to both as much as
possible".
Another important factor which has to be
noticed is that the terms in which Article 30 is couched are absolute and
unconditional as compared to Article 19 which is hedged in by reasonable
restrictions which may be imposed by the State in public interest. Thus, in a
way the fundamental right contained in Article 30 is more effective and wider
than the fundamental rights contained in Part III of the Constitution. This,
however, does not mean that the State is completely deprived of even the right
to regulate the working of the minority institutions and to make rules in order
to improve the standards 943 of education imparted therein so as to achieve
excellence and efficiency in the educational standards of these institutions.
Regulatory measures cannot in any sense be regarded as placing restrictions or
curbing the administrative autonomy of the institutions concerned. But care
must be taken by the State to see that in passing regulatory measures it does
not transcend its limits so as to interfere with the internal administration of
the management of the institutions concerned so as to violate the spirit and
policy of Article 30. The question of the scope and ambit of Article 30 of the
Constitution of India was very exhaustively considered as far back as in 1959
in Re: Kerala Education Bill (Supra). This case arose when the President of
India called for the opinion of the Supreme Court on a Reference being made to
it under Article 143(1) of the Constitution of India. The Reference was heard
by 7 Judges of this Court out of which 6 of them excepting Venkatarama Aiyar,
J. gave a unanimous opinion regarding various clauses of the Bill. The
provisions of the Kerala Education Bill are not pari materia with the
provisions of the Act with which we are concerned in this case, but this Court
while delivering its opinion has laid down a number of salutary principles
which throw a flood of light on the scope and interpretation of Article 30 of
the Constitution of India.
I would, therefore, like to extract certain
important passages from the opinion of the Court which dealt with the scope and
application of Article 30. I would, however, like to mention that some of the
principles laid down by this Court in the aforesaid case may not apply to the
present day conditions because there have been numerous changes in all aspects
of life and even the concept of equality has undergone a revolutionary change.
But the observations made by this Court would afford a very valuable guideline
to determine the question in controversy in the present case.
While indicating the width of the right
conferred on the minority institutions by Article 30(1) this Court pointed out
that the right to administer does not envisage a right to indulge in mal-administration.
In this connection, Das, C.J. speaking for the majority observed as follows:-
"The right to administer cannot obviously include the right to
maladminister. The minority cannot surely ask for aid or recognition for an
educational institution run by them in unhealthy surroundings, without any
competent teachers, possessing any semblance of qualification, and which does
not maintain even a fair standard of teaching or which teaches matters
subversive of the welfare of the scholars. It stands to reason, then, that the
constitutional right to ad- 944 minister an educational institution of their
choice does not necessarily militate against the claim of the State to insist
that in order to grant aid the State may prescribe reasonable regulations to
ensure the excellence of the institutions to be aided".
Again, while sounding a note of caution to
the Government that no step should be taken by it which amounts to the
institution surrendering its personality merely because the institution is
receiving aid from the State, said the Chief Justice thus:- "No
educational institution can in actual practice be carried on without aid from
the State and if they will not get it unless they surrender their rights they
will, by compulsion of financial necessities, be compelled to give up their
rights under Article 30(1)..................
The State Legislatures cannot, it is clear,
disregard or override those provisions merely by employing indirect methods of
achieving exactly the same result. Even the Legislature cannot do indirectly
what it certainly cannot do directly".
Considering the provisions of the Kerala
Education Bill particularly Clauses 6, 7, 9, 10, 11, 12, 14 and 15 the Court
held that although these provisions constitute serious inroads on the right of
administration of the institution and appear perilously near violating that
right, yet in view of the peculiar facts of that case and having regard to the
fact that clauses 9, 11 and 12 were designed to give protection and security to
the ill paid teachers who are engaged in rendering service to the nation and
protect the backward classes the Court as at present advised may treat these
clauses as permissible regulations. These observations were based on the
peculiar circumstances of the provisions of the Education Bill and the objects
which they sought to sub-serve may not be applicable to the present case where
the circumstances are quite different because admittedly most of the appellant
institutions are not receiving any aid from the Government. Even so, this Court
found it impossible to support clauses 14 and 15 which according to them were
totally destructive of the rights guaranteed by Article 30(1).
In this connection, the Court observed as
follows:- "But considering that those provisions are applicable to all
educational institutions and that the impugned parts of clauses 9, 11 and 12
are designed to give protection and 945 security to the ill paid teachers who
are engaged in rendering service to the nation and protect the backward
classes, we are prepared, as at present advised, to treat those clauses 9,
11(2) and 12(4) as permissible regulations which the State may impose on the
minorities as a condition for granting aid to their educational institutions.
We, however, find it impossible to support cls. 14 and 15 of the said Bill as
mere regulations. The provisions of those clauses may be totally destructive of
the rights under Article 30(1)".
The Court had made it very clear that the
observations extracted above applied to those categories of educational
institutions which had sought not only recognition but also aid from the State.
In the instant case. however, most of the appellant institutions have been
established by mustering their own resources and have not been receiving
substantial aid from the Government. Similarly, the Court made it clear that
although the minority institutions had no fundamental right to recognition by
the State yet to deny recognition on terms which may amount to complete
surrender of the management of the institution to the Government would be
violative of Article 30(1) of the Constitution. In this connection, Das, C.J.
Observed as follows:- "There is, no doubt, no such thing as fundamental
right to recognition by the State but to deny recognition to the educational
institutions except upon terms tantamount to the surrender of their
Constitutional right of administration of the educational institutions of their
choice is in truth and in effect to deprive them of their rights under Article
30(1). We repeat that the legislative power is subject eto the fundamental
rights and the legislature cannot indirectly take away or abridge the
fundamental rights which it could not do directly and yet that will be the
result if the said Bill containing any offending clause becomes law" Again
dwelling on the special character of the minority institutions Das, C.J.
speaking for the Court observed thus:
"It is obvious that a minority community
can effectively conserve its language, script or culture by and through
educational institutions and, therefore, the right to establish and maintain
educational institutions of its choice is a necessary concomitant to the right
to conserve its distinctive language, script or culture and that is what is
conferred on all minorities by Article 30(1) which has hereinbefore been quoted
in full." 946 Describing the nature of the fundamental rights enshrined in
Article 30 the Court observed as follows:- "There can be no manner of
doubt that our Constitution has guaranteed certain cherished rights of the minorities
concerning their language, culture and religion. These concessions must have
been made to them for good and valid reasons. Article 45, no doubt, requires
the State to provide for free and compulsory education for all children, but
there is nothing to prevent the State from discharging that solemn obligation
through Government and aided schools and Article 45 does not require that
obligation to be discharged at the expense of the minority communities.
So long as the Constitution stands as it is
and is not altered, it is, we conceive, the duty of this Court to uphold the
fundamental rights and thereby honour our sacred obligation to the minority
communities who are of our own." Similarly, Venkatarama Aiyer, J. who gave
a dissenting opinion agreed however with the scope of Article 30 as expounded
by the majority opinion. In this connection, the learned Judge observed as
follows:- "Article 30(1) belongs to the same category as Arts. 25, 26 and
29, and confers on minorities, religious or linguistic, the right to establish
and maintain their own educational institutions without any interference or
hindrance from the State. The true intention of that Article is to equip
minorities with a shield whereby they could defend themselves against attacks
by majorities, religious or linguistic, and not to arm them with a sword
whereby they could compel the majorities to grant concessions." Various
shades and aspects of the matter were again considered by this Court in the
case of Rev. Sidhajbhai Sabhai and Ors. v. State of Bombay & Anr. In this
case it appears that the Government of Bombay issued an order directing the
concerned institution which was controlled by the United Church of Northern
India to reserve 80% of the seats in the training colleges run by the institution
for teachers in non-Government training colleges. These teachers, were to be
nominated by the Government.
Accordingly, the Educational Inspector
ordered the Principal of the Training College not to admit without specific
permission of the Education Department private students in excess of 20% of the
total strength in each class. The institution took 947 serious exception to
this order of the Government as amounting to A direct interference in the
management of the affairs of the institution. The institution filed a writ
petition under Article 32 of the Constitution before this Court which was heard
by 6 Judges who after considering the facts of the case and the nature of the
order passed by the Government observed as follows:- "Unlike Article 19,
the fundamental freedom under clause (1) of Article 30, is absolute in terms;
it is not made subject to any reasonable restrictions of the nature the
fundamental freedoms enunciated in Article 19 may be subjected to. All
minorities, linguistic or religious have by Article 30(1) an absolute right to
establish and administer educational institutions of their choice; and any law
or executive direction which seeks to infringe the substance of that right
under Article 30(l) would to that extent be void. This, how ever, is not to say
that it is not open to the State to impose regulations upon the exercise of
this right..
Regulation made in the true interests of
efficiency of instruction, discipline, health, sanitation, morality, public
order and the like may undoubtedly be imposed.
Such regulations are not restrictions on the
substance of the right which is guaranteed; they secure the proper functioning
of the institution, in matters educational".
This Court refused to uphold the order of the
Government on the ground, that this was only a regulatory measure. The Court
pointed out that the regulation in order to be valid must satisfy a dual test,
namely, (1) that it should be reasonable, (2) that it should be purely
regulative of the educational character of the institution so as to make the
institution an effective vehicle of education for the minority community. This
Court observed thus :- "The right established by Article 30(1) is a
fundamental right declared in terms absolute. Unlike the fundamental freedoms
guaranteed by Article 19, it is not subject to reasonable restrictions. It is
intended to be a real right for the protection of the minorities in the matter
of setting up of educational institutions of their own choice. The right is
intended to be effective and is not to be whittled down by so called regulative
measures conceived in the interest not of the minority educational institution,
but of the public or the nation as a whole. If every order which while
maintaining the formal character of a minority institution destroys the power
of administration is held justifiable 948 because it is in the public or
national interest, though not in its interest as an educational institution,
the right guaranteed by Article 30(1) will be put a "teasing
illusion", a promise of unreality.
Regulations which may lawfully be imposed
either be 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 a 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 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." On an
examination of the provisions of the impugned Act in the instant case, it is
manifest that the Act contains provisions harsher and more offensive than the
order passed by the Government of Bombay in the Bombay case (supra) referred to
above.
In the case of Rev. Father W. Proost &
Ors. v. The State of Bihar and Ors. Hidayathullah, C. J. speaking for the Court
observed as follows:- "In our opinion, the width of Article 30(1) cannot
be cut down by introducing in it consideration on which Article 29(1) is based.
The latter article is a general protection is given to minorities to conserve
their language, script or culture. The former is a special right to minorities
to establish educational institutions of their choice. This choice is not
limited to institution seeking to conserve language, script or culture and the
choice is not taken away if the minority community having established an
educational institution of its choice also admits members of other communities.
That is a circumstance irrelevant for the application of Article 30 (1) since,
no such limitation is expressed and none can be implied. The two Article create
two separate rights, although it is possible that they may meet in a given
case." The extent to which the State could interfere with the
administrative autonomy of the minority institutions in view of the guarantee
contained in Article 30(1) of the Constitution was again fully discussed and
explained in the case of State of Kerala etc. v. Very Rev. Mother Provincial
etc. In this case the Court was considering the 949 constitutionality of
certain provisions of the Kerala University Act, 1969 which was passed with a
view to reorganise the University of Kerala and establish a teaching,
residential and affiliating University of private Colleges including
institutions founded by the minority community. The Court was concerned only
with some of the pro visions of the aforesaid Act and struck down the offending
provisions as amounting to a blatant interference with the rights guaranteed to
the minorities under Article 30(1) of the Constitution. Before analysing the
facts of that case, I might indicate that in the instant case it is not
disputed by the parties that all the appellants are minority institutions and
had a governing body of their own. It is also not disputed that apart from the
Christians others were also admitted to the institutions and received
education.
Even some of the members of the staff were
also non- Christians. In the background of these facts. I have to see how far
the decision of this Court referred to above applies to the present appeals.
While explaining the scope and ambit of management or administration
Hidayatullah, C.J. speaking for the Court observe as follows:-
"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 the allied matters
cannot be denied. The minority institutions cannot be allowed to fall below the
standards of excellence expected of educational institutions, of under the
guise of exclusive right of- management, to decline to 950 follow the general
pattern. While the management must be left to them, they may be compelled to
keep in step with others".
These observations, therefore, establish
three important tests which would determine whether or not the action of the
Government amounts to interference with the management of the institution (1)
In order that the management of the institution is free from outside control,
the founders must be permitted to mould the institution as they think fit; (2)
no part of the management could be taken away by the Government and vested in
another body without an encroachment upon the guaranteed right enshrined in Article
30(1) of the Constitution; (3) There is however an exception to. this general
rule which is that the Government or the University can adopt regulatory
measures in order to improve the educational standards which concern the body
politic and are dictated by considerations of the advancement of the country
and its people, so that the managing institution may not under the guise of
autonomy or exclusive right of management be allowed to fall below the standard
of excellence that is required of educational institutions.
Having laid down these tests the Court
proceeded to analyse some of the offending sections of the Kerala Act and came
to the conclusion that according to some of the sections the governing body set
up by education society was to consist of 11 members and the Managing Council
of 21 members. 11 members of the government body were (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 statute (iv) a person nominated by the Government and (v) a
person elected in accordance with the procedure laid down on the Act.
Sub-section (2) had the effect of making these bodies into bodies corporated
having perpetual succession and a common seal. Sub-section (6) laid down 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 to
persons prescribed by the Statutes. Sub-section (7) laid down that the decision
in either of the two bodies shall be taken at the meetings on the basis of
simple majority of the members present and voting. Thus, if these provisions
were to apply to the minority institutions, it is manifest that it would amount
to a direct interference in the internal management of the institution and
would tantamount to the institution surrendering its educational personality.
In other words, the governing body appointed by the University would replace
the governing body of the founders of the institutions and thus the founders
951 would have no right to administer the institution in any way they like. A
Adverting to this aspect of the matter Hidayatullah, C.J. Observed as follows
:- "These sections were partly declared ultra vires of Article 30(1) by
the High Court as they took away from the founders the right to administer
their own institution. It is obvious that after the election 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 answer- able to
the founders in the matter of administration 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 by them. It
is, therefore, clear that by the force of sub sections (2), (4) and (6) of sections
45 and 49 the minority community loses the right to administer the institution
it has founded. Sub-section (S) also compels the governing body or the managing
council to follow the mandates of the University in the administration of the
institution." Their Lordships then proceeded to consider the vires of
sub-sections (2) and (4) of section 56 which laid down the conditions of
service of the teachers of private colleges.
Sub-section (2) provided that no teacher of a
private college could 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.
Further sub-section (4) provided that 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. It is thus obvious that in view of the provisions
of sub-sections (2) and (4) of section 56 the managing body had no discretion
in the matter and the right of the management was completely taken away and
vested in some other body. In the instant case, although the Act does not at
all provide any rules or regulations by which the conditions of service of the
teachers are to be governed yet it prohibits dismissal or removal of teachers
without prior sanction of a competent authority to be declared by the
Government.
Similarly, it provides for an appeal to an
appellate authority without laying down any guidelines and no right of appeal
is given to the management. These provisions are contained in section 3,
sub-sections (2), (3) and (4) and section 4. This Court also considered the
effect of section 58 of the Kerala Act by which a teacher of a college who was
elected as a member of the Legislative Assembly or Parliament could not be
debarred on his election, but would be allowed to continue. Upholding the
decision of the High Court and commenting on the constitutionality of section
56 sub-sections (2) and (4) and section 58 this Court observed as follows:-
"These provisions clearly take away the disciplinary action from the
governing body and the managing council and confer it upon the
University." "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." In the end while making it
clear that there was no element of malafides in the Act passed by the
Legislature, the provisions of the Act unfortunately robbed the founders of
their right of administration and were, therefore, hit by Article 30(1) of the
Constitution. In this connection, the Court observed as follows:- "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 guarantees".
953 In the case of D.A.V. College etc. v.
State of Punjab & Ors this Court was considering the provisions of Chapter
V Clauses 2(1)(a), 17 and 18 read with clauses 1(2) and (3).
Clause 2(1) (a) provided that a college
applying for admission to the privileges of the University had to send a letter
of application to the Registrar and would have to satisfy the Senate (1) that
the College shall have a regularly constituted governing body consisting of not
more than 20 persons approved by the Senate (2) that among those persons there
should be two representatives of the University and the Principal of the
College Exofficio.
Clause 17 provided that any staff initially
appointed shall be approved by the Vice-Chancellor and any subsequent changes
made must be reported to the University for Approval. It was also provided that
in the case of training institutions the teacher pupil ratio shall not be less
than 1:12. The constitutional validity of these provisions was challenged
before this Court on the ground that it violated Article 30(1) of the
Constitution because the College was a minority institution being a College
established by the Arya Samaj. On a consideration of these provisions, this
Court upheld the contention of the appellants and observed thus:- "It will
be observed that under clause 1(3) if the petitioners do not comply with the
requirements under 1 (a) their affiliation is liable to be withdrawn.
Similarly it is stated that clause 17 also
interferes with the petitioners right to administer their College as the
appointment of all the staff has to be approved by the Vice-Chancellor and that
subsequent changes will also have to be reported to the University for Vice-
Chancellor's approval. We have already held that the Petitioners institutions
are established by a religious minority and therefore under Article 30 this
minority has right to administer their educational institutions according to
their choice. Clause 2(a) (a) and 17 of Chapter in V our view certainly
interfere with that right." The matter was again fully considered by this
Court by a Bench consisting of 9 Judges in all its aspects. In the case of The
Ahmedabad St. Xaviers College Society & Anr. etc. v. State of Gujarat &
Anr and this is the leading case on the subject. This case has been relied on
by counsel for both the parties in support of their respective Contentions.
In this case it appears that certain
provisions of the Gujarat University Act 1949 were challenged. Section 5 of the
Act provided 954 that no educational institution situated within the University
could be associated in any way with or seek admission to any privilege of any
other University save and except with the sanction of the State Government.
Section 33A(1)(a) of the Act provided that every college other than a Government
college or a college maintained by the Government shall be under the management
of a governing body which includes among others, the Principal of the College,
a representative of the University nominated by the Vice- Chancellor and (ii)
in the case of selection of a member of the teaching staff of the College a
selection committee would be constituted consisting of the Principal and a
representative of the University nominated by the Vice- Chancellor. Subsection
(3) of the section provided that the provisions of section 33A (1) shall be
deemed to be a condition of affiliation of every College referred to in that
sub-section. In other words, according to this provision, even the Colleges
which were minority institutions would fall within the mischief of the section.
Section 39 provided that within the
University area all post-graduate instruction, teaching and training shall be
conducted by the University or by such affiliated College or institution and in
such subjects as may be prescribed by statutes. Section 40(1) enacted that
Court of the University may determine that all instructions, teaching and
training in the courses of studies in respect of which the University was to
hold examination shall be conducted by the University and shall be imparted by
the teachers of the University.
Section 41(1) stated that all Colleges within
the University area which were admitted to the privilege of the University
under section 5(3) and all Colleges within the said area which may hereafter be
affiliated to the University shall be constituent colleges of the University,
and their relations with the University would be governed by statutes made by
the University in that behalf.
As regards the conditions of service of the
teachers appointed by the University section 51A(a) (b) enacts that no member
of the teaching or other academic and non teaching staff of an affiliated
college shall be dismissed, or removed or reduced in rank except after an
enquiry in accordance with the procedure prescribed in clause (a) and the penalty
to be inflicted on him is to be approved by the Vice-Chancellor or any other
officer of the University authorised by the Vice-Chancellor in this behalf.
Section 52A(1) provided that any dispute between the governing body and any
member of the teaching staff shall on a request of the governing body or of the
member concerned be referred to a Tribunal or arbitration consisting of one
member nominated by the governing body of the college, one member nominated by
the member concerned and an umpire appointed by the Vice- Chancellor. In view
of the provisions referred to above, 955 the question that felI for
consideration in that case was whether these k provisions interfere with the
internal management of the minority institutions so as to compel them to surrender
all their administrative powers to the University or the Vice-Chancellor or the
officers nominated by the Vice-chancellor. There can be no doubt that if these
provisions are construed against the background of the objective of the Act the
idea was not to leave any controlling voice either in the courses of studies or
in the matter of disciplinary action against the staff and the teacher in the
management of the institution but to take over the entire management by the
University authorities giving nominal representation to the management of the
institution.
Before we analyse the decision in St. Xaviers
case (supra) we must note that as far back as 1959 in Re Kerala education Bill
this Court had clearly pointed out that while the minority institution had no
constitutional right to be affiliated to any college or University the right to
be affiliated flowed from the language of Article 30(1) of the Constitution and
the University concerned could not either refuse affiliation or impose such
conditions which may result in complete surrendering of the management of the
minority institution. Thus, the central question to be decided in this case was
whether by virtue of the provisions of the Act set out above, Article 30(l) had
been violated and if so to what extent.
So far as the question of affiliation was
concerned the entire court held that although there was no fundamental right to
affiliation but recognition or affiliation was necessary for meaningful
exercise of the right to establish and administer educational institution
conferred on the minority institutions under Article 30(l) of the Constitution.
In this connection, the Court observed as follows:- "The consistent view
of this Court has been that there is no fundamental right of a minority institution
of affiliation. An explanation has been put upon that statement of law. It is
that affiliation must be a real and meaningful exercise for minority
institutions in the matter of imparting general secular education. Any law
which provides for affiliation on terms which will involve abridgement of the
right of linguistic and religious minorities to administer and establish
educational institutions of their choice will offend Article 30(1). The
educational institutions set up by minorities will be robbed of their utility
if boys and girls cannot be trained in such institutions for University
degrees. Minorities will virtually lose their right to equip their children for
ordinary careers if affiliation be on terms which wouId 956 make them surrender
and lose their rights to establish and administer educational institutions of
their choice under Article 30....................... ..... The establishment of
a minority institution is not only ineffective but also unreal unless such
institution is affiliated to a University for the purpose of conferment of
degrees n on students".
Relying on the previous decision in the case
of State of Kerala etc. v. Very Rev. Mother Provincial etc. (supra) Ray, C.J.
reiterated the principles laid down by the previous case and observed as
follows:- "when minority applies for affiliation, it agrees to follow the
uniform courses of study. Affiliation is regulating the educational character
and content of the minority institutions. These regulations are not only
reasonable in the interest of general secular education but also conduce to.
the improvement in the stature and strength of the minority
institutions.......... ..
....... ....
.... .... .... .... .... .... .... .... ....
....
Affiliation mainly pertains to the academic
and educational character of the institution. Therefore, measures which will
regulate the courses of study, the qualifications and appointment of teachers,
the conditions of employment of teachers, the health and hygiene of students,
facilities for libraries and laboratories are all comprised in matters germane
to affiliation of minority institutions. These regulatory measures for
affiliation are for uniformity, efficiency and excellence in educational
courses and do not violate any fundamental right of the minority institutions
under Article 30".
Thus, to a limited extent affiliation of the
minority institution to the University or Colleges concerned was held to be a
regulatory measures provided it was aimed at improving the educational
standards and laying down the conditions of employment of the teachers. This
Court repeated that the minority institutions have the right to administer the
institution and shorn of some checks and balances in the shape of regulatory
measures the right to administer cannot be tampered with. In this connection,
Ray, C.J. Observed as follows:- "The minority institutions have the right
to administer institutions. The right implies the obligation and duty of the
minority institutions to render the very best to the students. In the rights of
administration, checks and balances 957 in the shape of regulatory measures are
required to ensure the appointment of good teachers and their conditions of
service. 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
eclectism in the administration of the institution.............
Regulations which will serve the interest of
the students, regulations which will serve the interests 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 pre serving harmony among affiliated institutions". C As regards the
provision of the Act concerned by which the minority institution became a
constituent College this was expressly struck down by this Court where Ray,
C.J.
speaking for the Court observed as follows:-
"once an affiliated college becomes a constituent college within the
meaning of section 41 of the Act pursuant to a declaration under section 40 of
the Act it becomes integrated to the university. A constituent college does not
retain its former individual character any longer. The minority character of
the college is lost. Minority institutions become part and parcel of the
university. The result is that section 40 of the Act cannot have any compulsory
application to minority institutions because it will take away their
fundamental right to administer the educational institutions of their
choice".
Explaining what the concomitants of an
autonomy in administration meant Ray, C.J. observed as follows:- "Autonomy
in administration means right to administer effectively and to manage and
conduct the affairs of the institutions. The distinction is between a
restriction on the right of administration and a regulation prescribing the
manner of administration.
The right of administration is day to day
administration. The choice in the personnel of management is a part of the
administration. The university will always have a right to see that there is no
maladministration. If there is maladministration, the university will take
steps to cure the same. There may be control and check on administration in
order to find out whether the 958 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 ...................... 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 type 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 institution".
It follows from what had been held in the
aforesaid case was that there should be no interference in the right of day to
day administration of the institution of in the choice of the personality of
the managing committee or governing body of the institution. This Court struck
down section 33A(1) (a) of the Gujarat Act on the ground that the management of
the college was completely displaced and was substituted by the university
authorities. In other words, the position appears to be that although the
university to which the minority institution was affiliated may exercise
supervision in so far as the syllabi or the courses of studies are concerned,
it cannot be allowed to be associated with the managing committee or the
governing body of the institution so as to have a controlling voice in the
matters at issue and thereby destroy the very administrative autonomy of the
minority institution. This appears to be the main reason why Ray, C.J. was of
the opinion that section 33A(1)(a) was violative of Article 30(1), and,
therefore, not applicable to the minority institutions. The Court then dealt
with the provisions of sections 51A and 52A of the Gujarat Act. Under section
51A no member of the teaching, other academic and non-teaching staff of an
affiliated college should be dismissed, removed or reduced in rank except after
an enquiry in which he has been informed of the charges and given a reasonable
opportunity of being heard and until he had been given a reasonable opportunity
of making a representation on any such penalty proposed to be inflicted on him
and the penalty to be inflicted on him was to be approved by the
Vice-Chancellor or any officer o' the University authorised by him. This Court
held that this is a blanket power given to the Vice-Chancellor without any
guidance, and observed as follows:
"The approval of the Vice-Chancellor may
be intended to be a check on the administration. The provision contained in
section 51A, clause (b) of the Act cannot be said to be a permissive regulatory
measure inasmuch as it confers f ' 959 arbitrary power on the Vice-Chancellor
to take away the A right of administration of the minority institutions,
Section 51A of the Act cannot, therefore, apply to minority institutions."
Dealing with the provisions contained in Section 52A of the Gujarat Act which
contemplated a reference of any dispute between the governing body and any
member of the teaching or academic and non-teaching staff of an affiliated
college which was connected with the conditions of service of such member to a.
Tribunal of Arbitration consisting of one member nominated by the governing
body of the college, one member nominated by the member concerned and an Umpire
appointed by the Vice-Chancellor, the learned Chief Justice was of the opinion
that the introduction of such an arbitration to a Tribunal would start a spate
of fruitless litigation and was likely to impair the excellence and efficiency
maintained by the educational institution concerned. In this connection, the
learned Chief Justice observed as follows:- D "These references to
arbitration will introduce an area of litigious controversy inside the
educational institution. The atmosphere of the institution will be vitiated by
such proceedings. The governing body has its own disciplinary authority. The
governing body has its domestic jurisdiction. This jurisdiction will be
displaced. A new jurisdiction will be created in administration. The provisions
contained in section 52A of the Act cannot, therefore, apply to minority
institution." Jaganmohan Reddy, J. agreeing with the majority judgment
delivered by the Hon'ble Chief Justice endorsed his conclusions regarding the
constitutional validity to sections 40, 41, 33A(1) (a), 33A(1) (b), 51A and 52A
of the Act and observed thus:- "We agree with the Judgment of Hon'ble the
Chief Justice just pronounced and with his conclusions that sections 40, 41,
33A(1) (a), 33A(1) (b), 51A and 52A of the Act violate the fundamental rights
of minorities and cannot, therefore, apply to the institutions established and
administered by them." Dwelling on the importance of the fundamental right
enshrined in Article 30, the learned Judge held that the right under Article 30
7-138 SCT/80 960 could not be exercised in vacuo, and in this connection
observed as follows:-.
"The right under Article 30 cannot be
exercised m vacuo. Nor would it be right to refer to affiliation or recognition
as privileges granted by the State. In a democratic system of Government with
emphasis on education and enlightenment of its citizens, there must be elements
which give protection to them. The meaningful exercise of the right under
Article 30(l) would and must necessarily involve recognition of the secular
education imparted by the minority institutions without which the right will be
a mere husk. This Court has so far consistently struck down all attempts to
make affiliation or recognition on terms tentamount to surrender of its rights
under Article 30(l) as 1, abridging or taking away those rights. Again as
without affiliation there can be no meaningful exercise of the right under
Article 30(l), the affiliation to be given should be consistent with that
right, nor can it indirectly try to achieve what it cannot directly do."
Similar view was taken by Khanna, J. who also held that management of a
minority institution should be kept free from governmental or other
interference because the wonds "of their choice" appearing in Article
30 have special significance and would actually lose their value and utility if
too much interference or unnecessary curbs are placed in the administration of
the affairs of the minority institution. The learned Judge observed thus:
"Administration connotes management of
the affairs of the institution. The 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 interest of the community in general
and the institution in particular will be best served. The words "of their
choice" qualify the educational institutions established and administered
by the minorities need not be of some particular class;
the minorities have the right and freedom to
establish and administer such educational institutions as they choose".
Similarly, explaining the scope and ambit of
Articles 29 and 30 the learned Judge observed as follows:
"The broad approach has been to see that
nothing is done to impair the rights of the minorities in the matter of their
961 educational institutions and that the width and scope of A the provisions
of the Constitution dealing with those rights are not circumscribed. The
principle which can be discerned in the various decisions of this Court is that
the Catholic approach which led to the drafting of the provisions relating to
minority rights should not be set at naught by narrow judicial interpretation.
The minorities are as much children of the
soil as the majority and the approach has been to ensure that nothing should be
done as naught deprive the minorities of a sense of belonging, of a feeling of
security, of a consciousness of equality and of the awareness that the
conservation of their religion, culture! language and script as also the
protection of their educational institutions is a fundamental right enshrined
in the Constitution. The same generous, liberal and sympathetic approach should
weigh with the courts in construing Articles 29 and 30 as marked the
deliberations of the Constitution-makers in drafting these Articles and making
them part of the fundamental rights".
The learned Judge held that although it was
permissible for the authority concerned to prescribe regulations but such
regulations should not impinge upon the right conferred on the minority
institutions under Article 30(l). A just balance had to be struck between the
two objectives, namely, passing of regulatory measures and preserving the
fundamental rights of the minority institutions. The learned Judge observed as
follows:- "It is, therefore, permissible for the authority concerned to
prescribe regulations which must be complied with before an institution can
seek and retain affiliation and recognition. Question can arise whether there
is any limitation on the prescription of regulations for minority educational
institutions. So far as this aspect is concerned, the authority prescribing the
regulations must bear in mind that the Constitution has guaranteed a
fundamental right to the minorities for establishing and administering their
educational institutions. Regulations made by the authority concerned should
not impinge upon that right.
Balance has, therefore, to be kept between
the two objectives, that of ensuring the standard of excellence of the
institution and that of preserving the right of the minorities to establish and
administer their educational institutions. Regula- 962 tions which embrance and
reconcile the two objectives can be considered to be reasonable." The learned
Judge further held that any law which interferes with the minorities choice of
a governing body would be violative of Article 30(1 ) and observed thus :-
"In the light of the above principles, it can be stated 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(l)." Criticising
the constitutional validity of Section 52A of the Gujarat Act Khanna, J. shared
the view taken by Ray, C.J. which has been referred to above. The learned Judge
observed as follows:- "The provisions of section 52A would thus not as a
spoke in the wheel of effective administration o f an educational institution.
It may also be stated that there is nothing objectionable to selecting the
method of arbitration for settling major disputes connected with conditions of
service of staff of educational institutions. It may indeed be a desideratum.
What is objectionable, apart from what has been mentioned above, is the giving
of the power to the Vice- Chancellor to nominate the Umpire. Normally in such
disputes there would be hardly any agreement between the arbitrator nominated
by the governing body of the institution and the one nominated by the concerned
member of the staff. The result would be that the power would vest for all
intents and purposes in the nominee of the Vice-Chancellor to decide all
disputes between the governing body and the member of the staff connected with
the latter conditions of service. The governing body would thus be hardly in a
position to take any effective disciplinary action against a member of the
staff. This must cause an inroad in the right of the governing body to
administer the institution.
Section 52A should, therefore, be held to be
violative of Article 30(l) so far as minority educational institutions are
concerned." Similarly, while striking down sections 40 and 41 of the
Gujarat Act, the learned Judge found that the affiliated colleges would become
constituent colleges as a result of the provisions of these sections and held
that these provisions could not apply to the minority institutions. In this
connection, Khanna, J. Observed as follows:- "A provision which makes it
imperative that teaching in , under-graduate courses can be conducted only by
the Uni- 963 versity and can be imparted only by the teachers of the University
plainly violates the rights of minorities to establish and administer their
educational institution.
Such . a provision must consequently be held
qua minority institutions to result in contravention of Article 30(1). I would,
therefore, strike down section 40 so far as minority educational institutions
are concerned as being violative of Article. 30(1)".
Mathew, J. while striking down the
constitutional validity of section 33A(1) of the Gujarat Act observed as
follows:- "The heart of the matter is that no educational institution
established by a religious or linguistic minority can claim total immunity from
regulations by the legislature or the university if it wants affiliation or recognition;
but the character of the permissible regulations must depend upon their
purpose... In every case, when the reasonableness of a regulation comes up for
consideration before the court, the question to be asked and answered is
whether the regulation is calculated to subserve or will in effect sub serve
the purpose of recognition or affiliation, namely, the excellence of the
institution as a vehicle for general secular education to the minority
community and to other persons who report to it. The question whether a
regulation is in li: the general interest of the public has no relevance, if it
does not advance the excellence of the institution as a vehicle for general
secular education as, ex-hypothesi, the only permissible regulations are those
which secure the effectiveness of the purpose of the facility, namely, the
excellence of the educational institutions in respect of their educational
standards." Similarly, the learned Judge took strong exception to the
provisions of section 33A which required that the college should have a
governing body which should include persons other than those who are members of
the society of Jesus, struck provisions of section 33A and observed as
follows:- "We think that the provisions of sub-sections (1) (a) and (l)(b)
of section 33A abridge the right of the religious minority to administer
educational institutions of their choice. 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 964 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 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 The learned Judge further pointed out that under the
guise of preventing mal-administration the right of the governing body to
manage the affairs of the minority institution should not be take away and in
the same token observed as follows:- "Under the guise of preventing
mal-administration, the right of the governing body of the college constituted
by the religious minority to administer the institution cannot be taken away.
The effect of the provision is that the religious minority virtually loses its
right to administer the institution it has founded.
"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 according to
their way of thinking and in accordance with their idea 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." Similarly, analysing various
provisions of the Gujarat Act like sections 51A(1) (a) and 51A(l) (b) etc. the
learned Judge observed as follows:- "The relationship between the
management and a teacher is that of an employer and employee and it passes
one's understanding why the management cannot terminate the services of a teacher
on the basis of the contract of employment. Of course, it is open to the State
in the exercise of its regulatory power to require that before the services of
a teacher are terminated he should be given an opportunity of being heard in
his defence. But to require 965 that for terminating the services of a teacher
after all inquiry has been conducted, the management should have the approval
of an outside agency like the Vice- Chancellor or of his nominee would be an
abridgement of its right to administer the educational institution. No guide
lines are provided by the legislature to the Vice-Chancellor for the exercise
of his power. The fact that the power can be delegated by the Vice-Chancellor
to any officer of the university means that any petty officer to whom the power
is delegated can exercise a general power of veto. There is no obligation under
the sub-sections (1) (b) and (2) (b) that the Vice- Chancellor or his nominee
should give any reason for disapproval. As we said a blanket power without any
guideline to disapprove the action of the management would certainly encroach
upon the right of the management to dismiss or terminate the services of a
teacher after an enquiry." Beg, J. speaking in the same strain observed as
follows :
"It is true that, if the object of an
enactment is to compel a minority institution even indirectly, to give up the
exercise of its fundamental rights, the provisions which have this effect will
be void or inoperative against the minority institution. The price of affiliation
cannot be a total abandonment of the right to establish and administer a
minority institution conferred by Article 30(1) of the Constitution. This
aspect of the matter, therefore, raises the question whether any of the
provisions of the Act are intended to have that effect upon a minority
institution. Even if that intention is not manifest from the express terms of
statutory provisions, the provisions may be vitiated if that is their necessary
consequence or effect." Even Dwivedi, J. who had sounded a discorded note
held that so far as section 33A(1) (a) was concerned it was obnoxious to
Article 30(1) of the Constitution.
In the case of Gandhi Faizeam College
Shahajahanpur v.
University of Agra and Anr. the majority
judgment consisting of V. R. Krishna Iyer and A.C. Gupta, JJ. Observed as
follows:- "What is the core of the restriction clamped down by Statute
14-A? What is the conscience and tongue of Article 30 ? If the former is
incongruous with the latter, it 966 withers as void; otherwise, it prevails and
binds. That is the crux of the controversy." "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." Mathew, J. who gave a dissenting opinion and
whose opinion follows the principles laid down by the Court in St.
Xavier's case (supra) observed as follows:-
"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 and minister 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 abridgement 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(l) 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 arc 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 entire
case law as fully reviewed by this Court recently in the case of Lilly Kurian
v. Sr. Lewin & ors. In this case, Sen, J. speaking for the court and after
a deep dichotomy and adroit analysis of St. Xavier's case (supra) and the case
which preceded that case summed up the law thus:- "An analysis of the
judgments in St. Xaviers College's case (supra) clearly shows that seven out of
nine Judges held that the provisions contained in clauses (b) of sub-sections
(1) and (2) of section 51A of the Act were not applicable to an educational
institution established and managed by 967 religious or linguistic minority as
they interfere with the disciplinary control. Of the management over the staff
of its educational institutions. The reasons given by the majority were that
the power of the management to terminate the ser vices of any members of the
teaching or other academic and non-academic staff was based on the relationship
between an employer and his employees and no encroachment could be made on this
right to dispense with their services under the contract of employment, which
was an integral part of the right to administer, and that these provisions
conferred on the Vice-Chancellor or any other officer of the University
authorised by him, uncanalised, unguided and unlimited power to veto the
actions of the management." "The power of appeal conferred on the
Vice-Chancellor under ordinance 33(4) is not only a grave encroachment on the
institution's right to enforce and ensure discipline in its administrative
affairs but it is uncanalised and unguided in the sense that no restrictions
are placed on the exercise of the power.
The extent of the appellate power of the
Vice- Chancellor is not defined; and, indeed, his powers arc unlimited. The
grounds on which the Vice-Chancellor can interfere in such appeals are also not
defined. He may not only set aside an order of dismissal of a teacher and order
his reinstatement, but may also interfere with any of the punishments
enumerated in items (ii) to (v) of ordinance 33(2); that is to say, he can even
interfere against the infliction of minor punishments.
In the absence of any guidelines, it cannot
be held that the power of the Vice-Chancellor under ordinance 33 (4) was merely
a check on maladministration.
As laid down by the majority in St. Xavier
College's case (supra) such a blanket power directly interferes with the
disciplinary control of the managing body of a minority educational institution
over its teachers".
Thus, on an exhaustive analysis of the
authorities of this Court and the views taken by it from time to time during
the last two decades on various aspects, shades and colours, built-in
safeguards, guarantees, scope and ambit of the fundamental right enshrined in
Articles 30(1), the principles and propositions that emerged may be summarised
as follows:-
1. That from the very language of Article
30(1) it is clear that it enshrines a fundamental right of the 968 minority
institutions to manage and administer their educational institutions which is
completely in consonance with the secular nature of our democracy and the
Directives contained in the Constitution itself.
2. That although unlike Article 19 the right
conferred on the minorities is absolute, unfettered and unconditional but this
does not mean that this right gives a free licence for maladministration so as
to defeat the avowed object of the Article, namely, to advance excellence and
perfection in the field of education.
3. While the State or any other statutory
authority has no right to interfere with the internal administration or
management of the minority institution, the State can certainly take regulatory
measures to promote the efficiency and excellence of educational standards and
issue guidelines for the purpose of ensuring the security of the services of
the teachers or other employees of the institution.
4. At the same time, however, the State or
any University authority cannot under the cover or garb of adopting regulatory
measures tend to destroy the administrative autonomy of the institution or
start interfering willy nilly with the core of the management of the
institution so as to render the right of the administration of the management of
the institution concerned nugatory or illusory. Such a blatant interference is
clearly violative of Article 30(1) and would be wholly inapplicable to the
institution concerned.
5. Although Article 30 does not speak of the
conditions under which the minority educational institution can be affiliated
to a college or University yet the section by its very nature implies that
where an affiliation is asked for, the University concerned cannot refuse the
same without sufficient reason or try to impose such conditions as would
completely destroy the autono- mous administration of the educational
institution.
6. The induction of an outside authority
however high it may be either directly or through its nominees in the governing
body or the managing committee of the minority institution to conduct the
affairs of the institution would be completely destructive of the fundamental
right guaranteed by Article 30(1) of the 969 Constitution and would reduce the
management to a helpless entity having no real say in the matter and thus
destroy the very personality and individuality of the institution which is
fully protected by Article 30 of the Constitution.
Perhaps there may not be any serious
objection to the introduction of high authorities like the Vice-Chancellor or
his nominee in the administration particularly that part of it which deals with
the conditions of service of the teachers yet such authorities should not be
thrust so as to have a controlling voice in the matter and thus over-shadow the
powers of the managing committee. Where educational institutions have set up a
particular governing body or the managing committee in which all the powers
vest, it is desirable that such powers should not be curbed or taken away
unless the Government is satisfied that these powers are grossly abused and if
allowed to continue may reduce me efficacy or the usefulness of the
institution.
7. It is, therefore, open to the Government
or the University to frame rules and regulations governing the conditions of
service of teachers in order to secure their tenure of service and to appoint a
high authority armed with sufficient guidance to see that the said rules are
not violated or the members of the staff are not arbitrarily treated or
innocently victimised. In such a case the purpose is not to interfere with the
internal administration or autonomy of the institution, but it is merely to
improve the excellence and efficiency of the education because a really good
education can be received only If the tone and temper of the teachers are so
framed as tc make them teach the students with devotion and dedication and put
them above all controversy.
But while setting up such an authority care
must be taken to see that the said authority is not given blanket and
uncanalised and arbitrary powers so as to act at their own sweet will ignoring
the very spirit and objective of the institution. It would be better if the
authority concerned associates the members of the governing body or its nominee
in its deliberation so as to instil confidence in the founders of the
institution or the committees constituted by them.
970
8. Where a minority institution is affiliated
to a University the fact that it is enjoined to adopt the courses of study or
the syllabi or the nature of books prescribed and tho holding of examination to
test the ability of the students of the Institution concerned does not violate
the freedom contained in Art. 30 of the Constitution.
9. While there could be no objection in
setting up a high authority to supervise the teaching staff so as to keep a
strict vigilance on their work and to ensure the security of tenure for them,
but the authority concerned must be provided with proper guidelines under the
restricted field which they have to cover. Before coming to ally decision which
may be binding on the managing committee, the Head of the institution or the
senior members of the managing committee must be associated and they should be
allowed to have a positive say in the matter. In some cases the outside
authorities enjoy absolute powers in taking decisions regarding the minority
institutions without hearing them and these orders are binding on the
institution. Such a course of action is not constitutionally permissible so far
as minority institution is concerned because it directly interferes with the
administrative autonomy of the institution. A provision for an appeal or
revision against the order of the authority by the aggrieved member of the
staff alone or the setting up of an Arbitration Tribunal is also not
permissible because Ray, C.J. pointed out in St.
Xaviers case (supra) that such a course of
action introduces an arena of litigation and would involve the institution in
unending litigation, thus imparing educational efficiency of the institution
and create a new field for the teachers and thus draw them out of purely
educational atmosphere of the minority institutions for which they had been
established.
In other words, nothing should be done which
would seek to run counter to the intentions of the founders of such institutions.
These are some of the important principles
that have been clearly laid down by the Supreme Court in the cases discussed
above. I shall now endeavour to examine the provisions of the impugned Act in
the light of the principles enunciated above. I shall point out hereafter that
some of the provisions of the Act are so harsh and arbitrary and 971 confer
uncanalised powers on some of the authorities appointed under the Act so as to
amount to a direct and thoughtless interference with the management of the
institution Coming to the provisions of the Act one significant feature may be
noticed here. Unlike other Acts passed by some of the States the impugned Act,
while it takes within its sweep even the minority institutions, does not at all
lay down any rules, regulations governing the conditions of service of the
teachers of the institution, nor does it provide any guidelines on the basis of
which the rules could be made, nor does it contain a mandate directing the
minority institution to frame proper rules and conditions of service of its
teachers. Mr. Lal Narayan Sinha appearing for the appellants submitted that
this is a most serious lacuna in the Act which makes it completely violative of
Article 30 of the Constitution and other provisions read in the light of this
lacuna also lose their legal sanctity.
Section 1(3) provides that the Act applies to
all private educational institutions that is to say including minority
institutions. In the instant case all the appellants are institutions
established by the Christian community. Sub-section (4) of section 1 says that
the Act shall be deemed to have come into force on the 5th October, 1974.
Sections 2 is the definition clause which defines various terms used in the Act
and it is not germane for our purpose to deal with the various definitions
which is more or less a formality. Learned counsel appearing for the appellants
has challenged the constitutional validity of sections 3, 4, 5, 6, 7, 10, 11,
12, 16 and 17 of the Act.
Section 3(1) of the Act may be extracted
thus:- "3(1) Subject to any rule that may be made in this behalf, no
teacher employed in any private educational institution shall be dismissed
removed or reduced in rank nor shall his appointment be otherwise terminated,
except with the prior approval of the competent authority.;
Provided that if any educational management,
agency or institution contravenes the provisions of this sub-section, the
teachers affected shall be deemed to be in service".
A perusal of this section would clearly
reveal that while no rules regulating the conditions of service of the teachers
employed in private institutions had been made, the power to do so has been
reserved with the Government. The proviso enjoins that any contravention of the
provisions would not affect the teachers who would be deemed to be in service.
It is manifest that in the absence of any rules the proviso would have no
application. Even if the proviso applies it would 972 amount to a serious
inroad on the fundamental right of the minority institutions to administer or
manage their own affairs. Thus s. 3(1) as also the proviso is clearly violative
of own affairs Art. 30 is wholly inapplicable to the minority institutions.
Serious exception on has been taken by counsel for the appellants to sub-sections
(2), (3) and (4) of section 3.
Section 3(2) may be extracted thus :- "3
(2) Where me proposal to dismiss, remove or reduce in rank or otherwise
terminate the appointment of any teacher employed in any private educational
institution is communicated to the competent authority that authority shall, if
it is satisfied that there are adequate and reasonable grounds for such
proposal, approve such dismissal, removal, reduction in rank or termination of
appointment".
This sub-section seeks to control the power
of the institution concern ed in the matter of dismissal, removal or reduction
in rank or termination of the appointment of any teacher employed by any
private educational institution and enjoins that any action taken against the
teacher will be of no consequence unless it is approved by the said competent
authority. It will be rather interesting to note that the competent authority
has not been given any guidelines under which it can act. The Solicitor General
(Mr. S. N. Kacker) submitted that the word 'satisfy' as used in the section is
a strong term and regulates the powers of the competent authority and the words
"adequate and reasonable grounds" contain sufficient guidelines to
exclude exercise of any arbitrary power. I am, however, unable to agree with
this contention. In the first place, it was the inherent and fundamental right
of the institution to deal with its employees or teachers and take necessary
action against them. If the State wanted to regulate the conditions of service
of the teachers it should have taken care to make proper rules giving
sufficient powers to the management in the manner in which it was to act.
Secondly, the induction of an outside authority over the head of the
institution and making its decision final and binding on the institution was a
blatant interference with the administrative autonomy of the institution.
Sub-section (2) does not contain any provision that while giving approval the
competent authority was to ascertain the views of the governing body or the
managing committee so as to know their view point and the reason why action has
been taken against a particular teacher or teachers. Similarly, the words
"adequate and reasonable" are too vague and do not lay down any
objective standard to judge the discretion which is to be exercised by the
competent authority whose order will be binding on the institution. Thirdly,
973 while section 4 gives a right to the aggrieved teacher to file an appeal
before the appellate authority, no such right has been given to the management
to file an appeal against the order of the competent authority if it refuses to
grant sanction to the order of the managing committee of the institution. Thus,
in my opinion, sub-section (2) suffers from the Vice of excessive delegation of
powers and confers undefined, uncanalised, absolute and arbitrary powers to
grant or to refuse sanction to any action taken by the managing committee and
almost reduces the institution to a helpless position. Such a provision,
therefore, not only interferes with the right of the management of the
institution but is completely destructive of the right conferred on the
institution under Article 30(1) of the Constitution. Even C the competent
authority mentioned in the sub-section is merely the District Educational officer
and it appears from the record that it is not a very high authority such as,
the Director of Public Instruction or the Vice-Chancellor which may be presumed
to act objectively and reasonably. Another material defect in section 3(2) is
that no time limit has been fixed by the statute within which the competent
authority is to give its approval. If the competent authority either due to
over work endeavours or some other reason chooses to sit over the matter for a
pretty long time a stalemate would be created which will seriously impair the
smooth running of the institution.
Indeed if sub-section (2) would have been
cast in a negative form so as to provide that the sanctioning authority was
bound to give approval to any action taken by the institution against its
teachers unless it was, after hearing the teacher and the management of the
institution, satisfied that the order passed by the institution or the action
taken by it was in violation of the principles of natural justice, against the
statutory provisions of law or tainted with factual or legal malice no
objection could be taken. If the section would have been worded in this manner,
then its validity could have been upheld on the ground that it was a sound
regulatory measure which does not destroy the administrative autonomy of the
institution but is meant to ensure the security of tenure of the teaching staff
of the institution. But as this is not so, the validity of the provision cannot
be supported. For these reasons, therefore, I am satisfied that subsection (2)
is unconstitutional being violative of Article 30(1) of the Constitution and
would have no application to any minority institution Sub-section (3) of
section 3 runs thus:- "3 (3) (a) No teacher employed in any private
educational institution shall be placed under suspension, except 974 when an
inquiry into the gross misconduct of such teacher is contemplated.
(b) No such suspension shall remain in force
for more than a period of two months from the date of suspension and if such
inquiry is not completed within that period, such teacher shall, without
prejudice to the inquiry, be deemed to have been restored as teacher.
Provided that the competent authority may,
for reasons to be recorded in writing, extend the said period of two months,
for a further period not exceeding two months, if, in the opinion of such
competent authority, the inquiry could not be completed within the said period
of two months for reasons directly attributable to such teacher".
These provisions deprive the minority institution
of the power to suspend any teacher unless an inquiry into the gross misconduct
of such teacher is contemplated. One could understand if the word 'misconduct'
alone was used in sub- section (3) (a) but as it is qualified by the adjective
gross, it almost destroys the power of suspension which the minority
institution might possess. Even so, sub-section (3) (b) makes it clear that no
suspension shall remain in force for a period of more than two months from the
date of suspension and if no inquiry is completed within this period, the
teacher would have to be reinstated. This is indeed a most peculiar provision
and gives an unqualified right to a teacher in the matter of suspension. Even a
Government servant to whom Article 311 of the Constitution or the statutory
rules apply does not enjoy such a liberal facility. Moreover, the rules make a
mockery of any order of suspension passed pending an inquiry. It is very
difficult to predicate how long an inquiry would last and yet to limit the
period of suspension to two months irrespective of the nature, length and the
scope of the inquiry to only two months is really to completely curb the power
of suspension.
The proviso to section 3 (3) again empowers
the competent authority to extend the period of suspension. Thus the cumulative
effect of sub-sections (3)(a), 3(b) and the proviso is to interfere with the
internal administration of the minority institution and curb the power of
suspension and thus deprive the institution of the right of or taking any disciplinary
action against the teacher to such an extent that the institution becomes
almost a figure-head.
Such a provision, therefore, cannot be upheld
as it is clearly violative 975 Of Article 30(1) of the Constitution of India.
It is obvious that whenever an institution suspends a teacher, it is bound to
pay subsistence allowance and any express provision like sub-section (4) of
section 3 is wholly unnecessary and makes a serious inroad on the internal
autonomy of the institution. Thus, in our opinion, section 3 in its entirety is
ultra vires as being violative of Article 30(1) of the Constitution and is
wholly inapplicable to the appellants who are admittedly minority institutions.
Section 4 of the Act may be quoted thus:-
"4. Any teacher employed in any private education institution - (a) who is
dismissed, removed or reduced in rank or whose appointment is otherwise
terminated; or (b) whose pay or allowances or any of whose conditions or
service are altered or interpreted to his disadvantage, by any order;
may prefer an appeal against the order to
such authority or officer as may be prescribed; and different authorities or
officers may be prescribed for different classes of private educational
institutions.
Explanation: In this section, the expression
'order' includes any order made on or after the date of the commencement of
this Act in any disciplinary proceeding which was pending on that date".
This section gives a right of appeal to a
teacher who is dismissed, removed or reduced in rank and whose services are
terminated. No guideline are provided in which manner this power is to be
exercised nor does it contain any provision which may entitle the minority
institution to be heard by the appellate authority. No principles or norms are
laid down on the basis of which the order passed by the institution could be
examined by the appellate authority.
Even what would amount to misconduct has not
been defined or qualified in sections 2, 3 or 4. It is, therefore, difficult to
understand how the appellate . court would exercise this power in deciding
whether or not the teacher was guilty of misconduct and what is the correlation
between the degree of misconduct and the appropriate punishment which may have
been awarded by the institution and approved by the competent authority. The
conferment of such an 8-138 SCI/80 976 absolute and unguided power on the
appellate authority which if passed against the management it cannot even file
a civil suit to set aside this order amounts not only to a direct interference
with the right enshrined in Article 30(l) of the Constitution but makes the
minority institution a limp, lifeless and powerless body incapable of effective
teaching and/or attaining excellence in the standards of education.
such a course of action is bound to hurt the
feelings of the founders of the institution. For these reasons, therefore, I
and of the opinion that section 4 is also ultra vires as violative of Article
30 of the Constitution and would, therefore, have no application to the
minority institutions who are appellants in this case.
Section 5 merely provides for transfer of an
appeal pending before any authority to the appellate authority and if section 4
falls and is inapplicable to the minority institution section 5 also follows
the same fate and will not apply to the minority institution.
Section 6 runs thus:- "6. Where any
retrenchment of any teacher employed in any private educational institution is
rendered necessary consequent on any order of the Government relating to
education or course of instruction or to any other matter, such retrenchment
may be effected with the prior approval of the competent authority". I
This section deals with the contingencies under which the institution may be
compelled to retrench any teacher employed in the school. Whatever be the
position in other private educational institutions so far as the minority
institution is concerned, this is purely a domestic matter of the institution
and cannot be interfered with by any statute. The words "administer
educational institutions of their choice" clearly indicate that the
institution has an absolute right to select teachers, retain them or retrench
them at its sweet will according to the norms prescribed by the institution or
by the religious order which has founded the institution. As almost all the
minority institutions in the present case are not receiving any substantial aid
from the Government but have established the institution by their own moneys
and are bearing all the expenses themselves, it is none of the business of any
outside authority to interfere with or dictate to the institution as to which
member of the staff should be retrenched and which should be retained. The
provisions of section 6 directly interfere with this valuable right of the
institution by providing that the retrenchment shall be made with the approval
of the competent authority. The power is uncanalised and unguided and , suffers
from the same vices as has been pointed out in the case of 977 section 3 of the
Act. For these reasons, therefore, section 6 will have no application to the
institution.
Section 7 may be extracted thus:- "7. l
he pay and allowances of any teacher employed in any private educational
institution shall be paid on or before such day of every month, in such manner
and by or through such authority, officer or person, as may be
prescribed".
This is purely an innocuous provision which
is meant for the benefit of the institution itself by providing how the
salaries of the employees of the institution should be paid and is purely a
regulatory measure which does not at all touch or effect the administrative
autonomy of the minority institution.
So far as sections 8 and 9 are concerned,
they would obviously not apply to the minority institutions because these
institutions do not receive any aid from the Government and are, therefore, not
liable to maintain or furnish accounts to the University authorities or to the
Government, nor the prescribed authority has any right to inspect or pass audit
of the accounts kept by the institution. For these reasons, sections 8 and 9
also do not apply to the minority institutions.
Section 10 relates to the inspection or
inquiry in respect or private educational institution, its buildings,
laboratories etc., or any other matter connected with the institution which may
be necessary. Subsections (2), (3) and (4) of section 10 provide the mode in
which the inspection or inquiry is. to be made and a report submitted to the
concerned authority. These provisions are also in the nature of sound regulatory
measures and appear to be in the larger interest of the functioning of the
institution itself and, therefore, do not offend Article 30 of the
Constitution.
Section 11 runs thus:- "11. Every
educational agency shall, within such time or within such extended time as may
be fixed by the competent authority in this behalf, furnish to the competent
authority such returns statistics and other information as the competent
authority may, from time to time require." This section also contains
purely a regulatory measure and is in the best interest of the institution and
cannot be said to violate Article 30( 1) of the Constitution.
978 Section 12 and 13 relate to penalties for
contravention of the provisions of the Act which have been held by me to be
violative of Article 30 and, therefore, inapplicable to the appellants because
that would amount to destroying the very foundation and personality of the
minority institution.
These sections are also not applicable to the
minority institution except n respect of provisions of the Act which have been
upheld by me.
Section 15 contains the revisional power and
provides that the Government may delegate its powers, or make rules regarding
the exercise of such a power. I have already pointed out that the setting up of
a competent authority to sanction or approve the order passed by the
institution in respect of a member of the staff where sufficient guidelines and
grounds for approval have been prescribed is purely a regulatory measure and
does not attract Art. 30 of the Constitution. The conferment of a right of
revision against any order of the minority institution under the Rules framed
which provide sufficient guidelines and allow the minority institutions an
opportunity to be heard, is an innocuous provision and does not impinge on the
autonomy of the minority institution. I am, therefore, of opinion that such a
provision is in the best interests of the institution and does not in any way
harm the personality of the institution or destroy the image so as to interfere
with its autonomous functioning. I, therefore, hold that section 15 is
constitutionally valid and I might hasten to add that its constitutionality was
not challenged before this Court.
Section 16 bars a civil court from deciding
the questions which fall under this Act and section 17 contains an indemnity
clause. As I have held that almost all the operative and important provisions
of this Act are ultra vires, these sections also would have no application to
the minority institution. In fact, section 16 suffers from a serious defect,
viz., that if it was held by me that the provision regarding appeal to the
appellate authority was valid then section 16 completely bars the right of the
management to file a suit to challenge the validity of the order of the appellate
authority. To this extent, therefore, this Section makes a serious inroad on
the fundamental right of the minority institution and must be held to be
inapplicable to the minority institution.
I have gone through the judgment of the High
Court which does not appear to have considered the various aspects and features
of the matter set out by me, hor has it properly applied the propositions
summarised by me as culled out from the various decisions of this 979 Court
starting from 1959 (Re: Kerala Education Bill's case) (supra) to 1979 (Lily
Kurian's case) (supra).
For these reasons, I hold the sections 3
(alongwith its sub-section, 4, 5, 6, 8, 9, 12, 13, 16 and 17 are violative of
Article 30 of the Constitution and have no application to the appellants which
are minority institutions and which fall within the protection guaranteed by
the Constitution under Article 30. I accordingly allow all these appeals, set
aside the order of the High Court and quash all the directions which may have
been issued by the Government or other authorities under the Act to the
appellants except such steps as are taken under those provisions of the Act
which have been upheld by me, viz., sections 7, 10, 11, 14 and 15. In the
peculiar circumstances of the case, I leave the parties to bear their own
costs.
KAILASAM, J. These appeals are by special
leave against the judgment of the High Court of Judicature at Andhra Pradesh.
Several writ petitions questioning the
validity of certain provisions of the Andhra Pradesh Recognised Private
Educational Institutions Control Act, 1975 (hereinafter called the Act) were
heard. These writ petitions were disposed of by a common judgment by the Andhra
Pradesh High Court. Aggrieved by the judgment of the High Court helding that
the impugned sections of the Act is intra vires of the Constitution, not void
and operative on schools and institutions of the minorities, the present
appeals by special leave have been preferred.
The purpose of the legislation is set out in
the Statement of objects and Reasons to the Bill. It is stated :- "Of
late. several instances have come to the notice of the State Government
regarding the various irregularities committed by the managements of private
educational institutions in matters relating to suspension, dismissal, removal
or other wise termination, of members of the teaching staff on flimsy grounds
without framing charges and without giving an opportunity to explain. The said
managements are also flouting the orders or instructions of Director of Public
Instruction or the Universities or the Government in respect of such matters.
Having regard to the above circumstances, the Government have decided to
regulate the service conditions of teachers employed in the private educational
institutions to ensure security of service of the said teachers, and also to
exercise certain control on such institutions in the matter of their accounts,
etc., by undertaking suitable legislation in this regard." 980 The salient
features of the Bill are given as under:- (i) to safeguard the service
conditions of teaching staff in the recognised private educational institutions
in the matter of suspension, removal, dismissal and retrenchment;
(ii) to make it compulsory for the private
managements to obtain the prior permission of the competent authority before a
teacher is visited with any of the aforesaid major penalties;
(iii) to provide that the suspension of a
teacher pending enquiry, should be for a period of two months only after which
the teacher should be deemed to have been restored to duty, unless the
competent authority extends the suspension period by another two months;
thereby making it specific that in any case the teachers shall not be under
suspension for more than four months;
(iv) to provide that no teacher should be retrenched
with out the prior permission of the competent authority;
(v) to provide for payment of salaries to
teachers on the specified day of the month in such manner and by or through
such authorities, officer or persons, as may be laid down in the rules;
(vi) to provide for conducting enquiries into
the affairs of the recognised private educational institutions and also for
issue of suitable directions to the managements of such institutions based on
such enquiry, which shall be binding on the managements.
The writ petitions challenged the validity of
sections 3 to 7 of the Act. Sections 3 to 7 occur in Chapter II relating to
terms and conditions of service of teachers. It is necessary to set out the
impugned sections :- "Dismissal, removal or reduction in rank or
suspension of teachers employed in private educational institutions.
3(1). Subject to any rule that may be made in
this behalf, no teacher employed in any private educational institution shall
he dismissed, removed or reduced in rank nor shall his appointment be other
wise terminated, except with the prior approval of the competent authority.
981 Provided that if any educational
management, agency or institution contravenes the provisions of this
sub-section, the teachers affected shall be deemed to be in service.
(2) Where the proposal to dismiss, remove or
reduce in rank or otherwise terminate the appointment of any teacher employed
in any private educational institution is communicated to the competent
authority, that authority shall, if it is satisfied that there are adequate and
reasonable grounds for such proposal, approve such dismissal, removal,
reduction in rank or termination of appointment.
(3a) No teacher employed in any private
educational institution shall be placed under suspension, except when an
inquiry into the gross misconduct of such teacher is contemplated.
(b) No such suspension shall remain in force
for more than a period of two months from the date of suspension and if such
inquiry is not completed within that period, such teacher shall, without
prejudice to the inquiry, be deemed to have been restored as teacher.
Provided that the competent authority may,
for reasons to be recorded in writing, extend the said period of two months for
a further period not exceeding two months, if, in the opinion of such competent
authority, the inquiry could not be completed within the said period of two
months for reasons directly attributable to such teacher.
(4) Every such teacher as is placed under
suspension under subsection (3) shall be paid subsistence allowance at such
rates as may be prescribed during the period of his suspension.
Appeal against orders of punishment imposed
on teachers employed in private educational institutions.
4. Any teacher employed in any private educational
institution- (a) who is dismissed, removed or reduced in rank or whose
appointment is otherwise terminated;
or (b) whose pay or allowances or any of
whose conditions of service are altered or interpreted to his disadvantage, by
any order;
may prefer an appeal against the order to
such authority or officer as may be prescribed; and different authorities or
officers may be prescribed for different classes of Private educational
institutions.
Explanation-In this section, the expression
'order' includes any order made on or after the date of the commencement of
this Act in any disciplinary proceeding which was pending on that date.
Special provision regarding appeal in certain
past disciplinary cases.
982
5. (1) If, before the date of the commencement
of this Act, any teacher employed in any private educational institution has
been dismissed or removed or reduced in rank or his appointment has been
otherwise terminated and any appeal preferred before that date- (a) by him
against such dismissal or removal or reduction in rank or termination; or (b)
by him or the educational agency against any order made before that date in the
appeal referred to in clause (a); is pending on that date, such appeal shall
stand transferred to the appellate authority prescribed under section 4 (2) If
any such appeal as is preferred in sub-section (1) has been disposed of before
the date of the commencement of this Act, the order made in any such appeal
shall be deemed to be an order made under this Act and shall have effect
accordingly.
Retrenchment of teachers.
6. Where any retrenchment of any teacher
employed in private educational institution is rendered necessary consequent on
any order of the Government relating to education or course of instruction or
to any other matter, such retrenchment may be affected with the prior approval
of the competent authority.
Pay and allowances of teachers employed in
private educational institution to be paid in the prescribed manner.
7. The pay and allowances of any teacher
employed in any private educational institution shall be paid on or before such
day of every month, in such manner and by or through such authority, officer or
person, as may be prescribed." The object of the legislation in general
and the impugned provisions in particular is to regulate the service conditions
of the teachers and to ensure their security of service.
The main attack on the validity of the
impugned sections is that the provisions are violative of the rights conferred
on the minorities to establish and administer their institutions under Arts. 29
and 30 of the Constitution. The plea is that their right to administer their
institutions is taken away by imposing unjustified and complete control with
the authorities specified in the Act.
Before considering the provisions of each of
the sections impugned it is necessary to refer to the nature of the right
conferred on the minorities. The relevant article is Art. 30 of the
Constitution and it is necessary to refer to the Art. and the important
decisions rendered by this Court under the Article.
983 "Right of minorities to establish
and administer educational institutions.
Art. 30. (1) All minorities, whether based on
religion or language, shall have the right to establish and administer
educational institutions of their choice.
(2) The State shall not, in granting aid to
educational institutions, discriminate against any educational institution on
the ground that it is under the management of a minority, whether based on
religion or language." The educational institutions established and
administered by the minorities in the exercise of the rights conferred under
Art. 30 may be classified into 3 categories (1) those which do not seek either
aid or recognition from the State or affiliation from the University; (2) those
which seek aid and (3) those that seek either recognition or affiliation but
not aid. We are not concerned with institutions which do not seek either aid or
recognition from the State or affiliation from the University. The institutions
which require aid may again be classified into two classes namely those which
are by constitution expressly made eligible for receiving grants and (2) which
are not entitled to any grant by virtue of the express provisions of the
Constitution. Here again we are not concerned with the first category. We are
only concerned with the institutions which are not entitled to any grant by any
express provision in the Constitution.
Articles 28(3), 29(2) and 30(2) deal with
educational institutions receiving aid out of State Funds. Certain restrictions
are placed a obligations cast on institutions recognised by the State or
receiving aid Art. 28(3) provides "No person attending any educational
institutional recognised by the State or receiving aid out of State funds shall
be required to take part in any religious instructions that may be imparted in
such institutions or to attend any religious worship that may be conducted in
such institution or in any premises attached thereto unless such person or, if
such person is a minor, his guardian has given his consent thereto. Under the
sub-article a person attending an institution recognised by the State or
receiving aid cannot be compelled by the institution to take part in any
religious instruction or to attend religious worship without his consent. Art.
29(2) provides that no citizen shall be denied admission into any educational
institution maintained by the State or receiving aid out of State funds on
grounds only of religion, race, caste, language or any of them.
Under Art. 29(2) institutions receiving aid,
a citizen is entitled to seek admission and the institutions is forbidden tn
deny admission to a citizen on grounds of 984 religion, race, caste or
language. While Art. 28(3) and 29(2) impose certain restrictions on institutions
receiving aid, Art. 30(2) forbids the State from discriminating against any
educational institution in granting aid on the ground that it is under the
management of a minority, whether based on religion or language. The
Constitution does not confer any right on the institution to receive any aid.
It however forbids the State in granting aid
to educational institutions from discriminating an educational institution on
the ground that it is under the management of a minority whether based on
religion or language. This would imply that the State has right to grant or not
to grant aid. It may be that the State is not in a position to grant aid to
education institutions. In such circumstances nobody can force the State to
grant aid. But if the State grants aid to educational institutions there should
not be any discrimination. It is open to the State to prescribe relevant
conditions and insist on their being fulfilled before any institution becomes
entitled to aid. No institution which fails to conform to the requirements thus
validly prescribed would be entitled to any aid. Educational institutions
receiving aid whether they are managed and administered by minority or not have
to conform to the requirements prescribed by the State in order to enable the institutions
to receive aid. The requirements prescribed shall not be discriminatory on the
ground that it is under the management of a minority whether based on religion
or language. The character of the minority institution should not also be
destroyed. The right of the State to ensure that its funds are properly spent
cannot be denied.
In Re: Kerala Education Bill, at p. 1062
Chief Justice Das ruled that "the minority cannot surely ask for aid or
recognition for an educational institution run by them in unhealthy
surroundings, without, any competent teachers possessing any semblance of
qualification, and which does not maintain even a fair standard of teaching or
which teaches matters subversive of the welfare of the scholars." The
learned Chief Justice proceeded to observe :- "It stands to reason, then,
that the constitutional right to administer an educational institution of their
choice does not necessarily militate against the claim of the State to insist
that in order to grant aid the State may prescribe reasonable regulations to
ensure the excellence of the institution to be aided." The scope of the
reasonable regulations that can be imposed is clearly explained by the question
framed by the Attorney General and the answer furnished by the Court at p.
1063.
The State cannot say "I 985 have money
and I shall not give you any aid unless you surrender to me your right of
administration" (emphasis supplied) The Court held that regulations
prescribed under the various clauses except sub-clause (5) of Cl. 3 which made
the educational institution subject to clauses 14 and 15, valid.
The Kerala Education Bill which was referred
to this Court for the n purpose of opinion contained several clauses. A summary
of the clauses is given in the judgment from pages 1023 to 1030 of the Reports,
Clauses 6, 7 9, 10, 11, 12, 14, 15 and 20 relate to the management of aided
schools. The Court expressed its view that the provisions in clauses 7, 10,
11(1), 12(1), (2), (3) and (S) may easily be regarded as reasonable regulations
or conditions for the grant of aid. (Vide p. 1064). Clause 7 is extracted at p.
1025. It confers powers enumerated in the
clause on the managers. Clause 10 requires the Government to prescribe the
qualifications to be possessed by persons for appointment as teachers in
Government Schools and in private schools which by the definition means aided
or recognised schools. The State Public Service Commission is empowered to
select candidates for appointment as D. teachers in Government and aided
schools according to the procedure laid down in cl.
11. Clause 12 prescribes the conditions of
service of the teachers of aided schools obviously intended to afford some
security of tenure to the teachers of aided schools. It provides that the
scales of pay applicable to the teachers of Government schools shall apply to
all the teachers of aided schools whether appointed before or after the
commencement OF this clause. Rules applicable to the teachers of the Government
schools arc also to apply to certain teachers of aided schools as mentioned in
sub-cl.
(2). Sub-cl. (4) provided that no teachers of
an aided school shall be dismissed, removed or reduced in rank or suspended by
the Manager without the previous sanction of the authorised officer. With
regard to sub-cl. 12(1) (2) and (3) which related to conditions of service and
security of tenure, the Court held that the purpose may easily be regarded as
reasonable regulations or conditions for grant of the aid. It was submitted
that clauses 9, 11(2) and (4) went beyond the permissible limit as by taking
over the collections of fees, etc. and by undertaking to pay the salaries of
the teachers and other state the Government is in reality confiscating the
school fund and under cl. l l the power of management is taken away by
providing that the appointment of a teacher should be out of the panel to be
prepared by the Public Service Commission. Similarly it was submitted that by
requiring previous sanction by the authorised officer before dismissal, removal
or reduction in rank of a teacher, the H. right to administer was taken away.
Chief Justice Das observed at p. 1064 of the Reports:
"These are no doubt serious inroads on
the right 986 of administration and appear perilously near violating that
right. But considering that those provisions are applicable to all educational
institutions and that the impugned parts of cls. 9, 11 and 12 are designed to
give protection and security to the ill paid teachers who are engaged in
rendering service to the nation and protect the backward classes, we are
prepared, as at present advised, to treat these clauses 9, 11(2) and 12(4) as
permissible regulations which the State may impose on the minorities as a
condition for granting aid to their educational institutions." It is clear
that so far as aided institution are concerned conditions similar to those that
are mentioned can be validly imposed on the institutions. The only prohibiting
is that the conditions should not be of such a nature as to deprive the
character of the minority institutions in their exercise of the rights
conferred on them as minority institutions. So long as there are rules for the
purpose of maintaining the excellence of educational institutions and not
discriminating against the minority educational institutions they will be
valid.
The decisions rendered subsequent to the
Kerala Education Bill case may now be referred to see how for the views
expressed had been modified. In Rev. Sidhajbhai Sabhai & Ors. v. State of
Bombay & Anr.(1) a Bench of 6 Judges held that the order of the Government
directing that 80% of seats in the training colleges should be reserved for
Government nominee with a threat that if the order was disobeyed, grant and
recognition would be withdrawn. was invalid. The Court laid down that
reasonable restrictions in the interest of the efficiency of instruction,
discipline, health, sanitation and the like may be imposed as those regulations
will not be restrictions on the substance of the right guaranteed, for they
secured the proper functioning of the institution in educational matters. The
Court held that "if every order which while maintaining the formal
character of a minority institution destroys the power of administration is
held justifiable because it is in the public or national interest, though not
in its interest as an educational institutions, the right guaranteed by Art.
30(l) will be but a "teasing illusion", a promise of unreality.
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 a minority institution
elective as an educational institution. The dual test prescribed is the test of
reasonableness and the test that is regulative of the educational character of
the institution and is conducive to making the institution an effective vehicle
of the education of the minority community or the persons who resort to it. The
requirements of reservation of 80% of the seats will 987 destroy the right to
management as a minority institution and as such cannot be imposed even in the
case of institutions receiving aid. Conditions of such a nature that would
result in surrender of the fundamental right to administer cannot be imposed.
After referring to the decision in the Kerala Educational Bill case, the Court
observed that it did not decide that a regulation would be deemed unreasonable
only if it was totally destructive of the right of the minority to administer n
the educational institution. This view was affirmed in the St. Xavier's College
case [1975] 1 SCR 173. The test laid down requires that the regulation must be
for regulating the educational institution for the minority committee as well
other persons who resort to it. (emphasis supplied) The case of Rev. Father W.
Proost and ors. v. The State of Bihar and Ors.(1) relates to affiliation. This
Court was considering the validity of s. 48-A of the Bihar University Act.
Under s. 48-A a University Service Commission for affiliated Colleges was established.
It was provided amongst others that subject to the approval of the University,
appointments, dismissals, removals, termination of service or reduction in rank
of teachers of an affiliated college not belonging to the State Government
shall be made by the governing body of the College on the recommendation of the
Commission. While the petition was pending before this Court the Governor of
Bihar promulgated an ordinance by inserting Sec. 48-B which exempted Colleges
established and administered by the minorities from the operation of the
provisions of clauses (6), (7), (8), (9), (10) and (11) of s. 48-A. After the
introduction of s. 48-B the petitioners before this Court claimed protection
under S. 48-B and submitted that affiliated Colleges established by minorities
are exempt from the operation of the impugned provisions of s. 48-A. It may be
noted that under s. 48-B the governing body of an affiliated college
established by a minority shall be entitled to make appointments, dismissals,
removals, termination of service or reduction in rank of teachers or take other
disciplinary action subject only to the approval of the Commission and the
Syndicate of the l university. The petitioners did not challenge the provisions
which provided that appointments, dismissals, removals, termination of service
and reduction in rank of teachers or other disciplinary measures will be
subject to the approval of the Commission and the Syndicate of the University.
What was objected to was the provisions under s. 48-A which established an
University Service Commission on whose recommendations alone appointments,
dismissals, removals, terminations of service or reduction in rank of teachers
of an affiliated college 988 can be effected. A provision requiring prior
approval of the Commission or Syndicate was not challenged as objectionable.
In State of Kerala v. Very Rev. Mother
Province(1), the constitutional validity of certain provisions were challenged
on the ground that they interfered with the rights of the minority institutions.
The Kerala University Act, 1979 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. Ss. 48 and 49
dealt with the Governing Bodies of private colleges. The Educational Agency of
a private College was required to set up a Governing Body for a private College
or a managing council for private-colleges under one corporate management. The
section provided for the composition of two bodies so as to include Principal:;
and Managers of private colleges, nominees of the University and Government as
well as elected representatives of teachers.
Sub-s. (2) provided that the new bodies would
be having corporate perpetual succession and the members would hold office for
four years. Sub-section cast a duty on the new governing body or the managing
council to administer the private college or colleges in accordance with the
pro- visions of the Act. The provisions of s. 53, sub-ss. (1), (2), (3) and (9)
conferred on the Syndicate of the University power to veto the decision of the
Governing Council. A right of appeal was provided for any person aggrieved.
Section 56 conferred ultimate power on the University and the Syndicate in
disciplinary matters in respect of teachers. This Court held that sub-s. (2)
and (4) of Ss. 48 and 49 as ultra vires. The Court agreed that the High Court
was right in declaring that sub-ss. (1) and (2), (9) and of s. 53, sub-ss. (.2)
and (4) of s. 56 as ultra vires.
In D.A.V. College etc. v. State of Punjab
& ors(2) the validity of cl. 18 which required that non-governmental
Colleges shall comply with the requirements laid down in the ordinances
governing service of teachers in non-governmental Colleges as may be framed by
the University was considered.
Clause 18 so far as it is applicable to the
minority institutions empowered the University to prescribe by regulation
governing the service of teachers which is enacted in the larger interest of
the institution to ensure their efficiency and excellence. Tho Court held:
"It may for instance issue an ordinance in respect of age of
superannuation or prescribe minimum qualifications for teachers to be employed
by such institutions either generally or in particular sub- 989 jects.
Uniformity in the conditions of service and conduct of teachers A in all
non-Government Colleges would make for harmony and avoid frustration." A
reading of the decisions referred to above make it clear that while the right
to establish and administer a minority institution cannot be interfered with
restrictions, by way of regulations for the purpose of maintaining the
educational standards of the institution can be validly imposed. For
maintaining the educational standard of the institution as a whole it is
necessary to ensure that it is properly staffed. Conditions imposing the
minimum qualifications of the staff, their pay and other benefits, their
service conditions, the imposition of punishment will all be covered and
regulations of such a nature have been held to be valid. In the case of
institutions that receive aid it is the duty of the Government who grants aid
to see that the funds are properly utilised. As the Government pays for the
staff it is their bounden duty to see that well- qualified persons are selected
their pay and other emoluments are guaranteed and service conditions secured.
So far as the institutions receiving aid are concerned if the regulations are
made for the purpose of safeguarding the rights of the staff the validity cannot
be questioned as long as the regulations do not discriminate the minority
institution on the ground of religion or language.
The minority institutions have no fundamental
right to demand recognition by the State or affiliation by the University but
as recognition and affiliation is necessary for the effective exercise of the
fundamental right of minorities to establish and administer their institutions,
they are entitled to recognition and affiliation if reasonable conditions that
are imposed by the Government or the University relevant for the purpose of
granting recognition or affiliation are complied with. Before granting
recognition or affiliation it is necessary that the concerned Government or the
University is satisfied that the institution keeps up with the required minimum
standard. As has been held by Das C.J., "Right to administer cannot
obviously include the right to mal-administer" and in the words of Shah,
J. "The right is subject to reasonable restrictions in the interest of
efficiency of instruction, discipline, health, sanitation and the like."
Justice Jaganmohan Reddy has made it clear in upholding cl. 18 of the Guru
Nanak University, Amritsar Act, 1961 that regulations relating to the
recruitment and service conditions of the teachers of the institution are
valid.
The decision of 9 Judges' Bench in The
Ahmedabad St.
Xaviers College Society & Anr. etc. v.
State of Gujarat & Anr.(') may now 990 be considered. All the 9 Judges were
unanimous that the right to aid or recognition was not a fundamental right but
that aid or recognition cannot be offered on conditions which would involve a
surrender of those rights. But the rights of recognition and affiliation are
subject to regulations which are necessary for maintenance of the educational
institutions. In the St. Xaviers College case (supra), S. 33A(1) was
challenged. It provided that every college was to be under the management of a
governing body which must include a representative of the University and
representatives of teachers, non-teaching staff and students of the college.
Eight of the nine Judges held that S. 33A (1)(a) violated Art. 30(l) and could
not be applied to minority institutions. This Court in a subsequent decision in
G.F. College Shahajahanpur v. University of Agra and Anr.(l) held that it would
not be unconstitutional to direct that the Principal and the Senior Teacher
appointed by the Governing body itself be taken into the managing committee.
The Court in St. Xavier's College case also
considered the validity of S. 51-A(l) (a), (2) (a) and 51-A(1) (b) .
Section 51-A(1)(a) and (2)(a) provided that
no member of the teaching?, other academic and non-teaching staff was to be
dismissed, removed or reduced in rank except after an inquiry in which he had
been informed of the charges against him and had been given a reasonable
opportunity of being heard and making a representation on the penalty proposed
to be inflicted. No termination of service not amounting to dismissal or
removal was to be valid unless, such member had been given a reasonable
opportunity of showing cause against the proposed termination. The two clauses
were held to be valid, as being reasonable. However, the Court held that S.
51-A(l)(a) and (2)(b) as violative of Art.
30(l). Section 51-A(l)(b) provided that the penalty to be inflicted on him must
be approved by the Vice-Chancellor or any other officer of the University
authorised by the Vice-Chancellor in this behalf. Similarly, S. 51-A(2) (b)
provided that "such termination is approved by the Vice-Chancellor or any
officer of the University authorised by the Vice-Chancellor in this
behalf." Section 51-A(1) (b) required the approval of the Vice-Chancellor,
or other officer authorised by him.
for the penalty to be inflicted under sub-s l
(a), and S.
51-A(2) (b) required similar approval for the
termination of service under sub-s. (2) (a). The Court also held that S.
52-A which required that any dispute between
the governing body and any member of the teaching, other academic and non-
teaching staff of an affiliated college? connected with the terms of service of
such member. must be referred to a Tribunal of Arbitration consisting of one
member each appointed by the governing body and by the member of the 991 staff
and an umpire appointed by the Vice-Chancellor was not valid. A Seven out of 9
Judges held that S. 52-A violated Art. 30(l) and could not be applied to
minority institution.
Minority institutions seeking affiliation
will have to follow statutory measures intended to regulate the conduct of the educational
institution. Ray, C.J. p. 193 held :- "With regard to affiliation a
minority institution must follow the statutory measures regulating educational
standards and efficiency the prescribed courses of study, courses of
instructions and the principles regarding the qualification of teachers
educational qualifications for entry of students into educational institutions
etc. When a minority institution applies to a University to be affiliated, it
expresses its choice to participate in the system of general education and
courses of instruction prescribed by that University: * * * * * * There fore,
the measures which will regulate the courses of study the qualifications and
appointment of teachers, the condition of employment of teachers,* * * * * * * are
all comprised in matters germane to affiliation of minority institutions. These
regulatory measures for affiliation arc for uniformity efficiency and
excellence in educational] courses and do not violate any fundamental right of
the minority institutions under Art. 30" (emphasis supplied) Ray C.J. held
that s. 51A(1) (b) and S. 51A(2) (b) is not applicable to minority institutions
as they "cannot be said to be permissive regulatory measures in as much as
it confers arbitrary power on the Vice-Chancellor to take away the right of
administration of the minority institutions ." Agreeing with the view of
the Chief Justice, regarding his conclusion about S. 51A(1) (a) and (2) (b),
Khanna, J.
at p. 243 observed :
"Although disciplinary control over the
teachers of a minority educational institution would be with the governing
council, regulations in my opinion, can be made for ensuring proper conditions
of service of the teachers and for securing a fair procedure in the matter of
disciplinary action against the teachers.
Such provisions which are calculated to safe
guard the interest of teachers would result in security of tenure and thus
inevitable attract competent persons for the posts of teachers. * * * * *
Regulations made for this 9-138 SCI/80 992 purpose should be considered to be
ill the interests of minority educational institutions and as such they would
not violate Art. 30(1)". (emphasis supplied) Regarding S. 51A, the learned
Judge while holding that provisions under. Cl. (a) of sub-ss. (1) & (2) of s.
51A which make provision R for giving a reasonable opportunity of showing cause
against a penalty to be proposed on a member of the staff would be valid. Cl.
(b) of the sub-s.
which gives a power to the Vice-Chancellor
and officer of the University authorised by him to veto the action of the
managing body of an educational institution in awarding punishment to a member
of the staff, interferes with the disciplinary control of the managing body
over its teachers.
He was of the view that the power conferred
on the Vice- Chancellor or other officer is a blanket power and no guide lines
were laid down for the exercise of that power and it is not provided that the
approval is to be withheld only in case the dismissal, removal, reduction in
rank or termination of service is mala fide by way of victimisation or other
similar cause. The conferment of such blanket power on the Vice-Chancellor or
other officers authorised for vetoing the disciplinary action of the managing
body of a educational institutional made serious inroads on the right of the
managing body to administer an educational institution.
Mathew, J. in dealing with S. 51A(1)(a) and
(b) at p.
273 observed:- The exact scope of the power
of the Vice- Chancellor or of the officer of the University authorised by him
in this sub section is not clear. If the purpose of the approval is to see that
the provisions of sub-section 51A(1)(a) are complied with, there can possibly
be no objection in lodging the power of approval even in nominee of the
Vice-Chancellor. But an uncanalised power without any guideline to withhold
approval would be a direct abridgement of the right of the management to
dismiss or remove a teacher or inflict any other penalty after conducting an
enquiry." (emphasis sup plied) The learned Judge proceeded to observe:
"Of course it is open to the State in
the exercise of its regulatory power to require that before the service of a
teacher are terminated, he should be given opportunity of being heard in his
defence. But to require that for terminating the services of a teacher after
993 an enquiry has been conducted, the management . should have the approval of
an outside agency like the Vice- Chancellor or of his nominee would be an
abridgement of its right to administer the educational institution. No
guidelines are provided by the legislature to the Vice- Chancellor for the
exercise of his power. The fact that the power can be delegated by the
Vice-Chancellor to any officer of the university means that any petty officer
to whom the power is delegated can exercise a general power of veto. There is
no obligation under the sub-sections 1(b) and 2(b) that the Vice-Chancellor or
his nominee should give any reason for disapproval. As we said a blanket power
with- out any guideline to disapprove the action of the management would
certainly encroach upon the right of the management to dismiss or terminate the
services of teacher after an enquiry".
The extracts from the judgments of Ray, J.
Khanna, J.
and Mathew, J. show that regulations can be
made for ensuring the pro- per conditions of service of the teachers and for
securing fair procedure in the matter of disciplinary action against them.
Prescribing uniformity in the conditions of service and conduct of teachers in
all non-governmental colleges would promote harmony, avoid frustration and is
permissible. It is thus seen that the university or the authority granting
recognition can prescribe the conditions of service of teachers providing them
with security of service. The rules may require that no Principal of the
teaching or non-teaching staff of a recognised or a approved institution shall
be dismissed, removed or reduced in rank except after an enquiry in which he
has been informed the charges against him and given a reasonable opportunity of
being heard in respect of those charges and making representation on any
penalty proposed to be inflicted on him. The Government which grants
recognition or the University which gives affiliation are entitled to sec that
proper conditions of service of the teachers are ensured and fair procedure is
observed by the institutions when disciplinary action is taken against them. If
the regulations require the approval by the competent authority for
safeguarding the rights of the teachers and for securing the procedure there
could be no objection. Such authority can also interfere with the decision of
the private institutions when the punishment is awarded mala fide or by way of
victimisation or for similar causes.
In Kerala Education Bill, 1957 Cl. 14(4)
provided that no teacher of an aided school shall be dismissed, removed or
reduced in rank or 994 suspended by the Manager without the previous sanction
of the authorised officer. This requirement of sanction related to schools that
sought aid from the Government. While upholding the validity of cl. 14, Das
C.J. Observed that there could be no doubt that these are serious inroads in
the right of the administration and appear perilously near violating that
right. But considering that those provisions are applicable to all educational
institutions and that the impugned parts of cls. 9, 11 and 12 are designed to
give protection and security to the ill-paid teachers who are engaged in
rendering service to the nation and protect the backward classes we are
prepared, "as at present advised to treat clauses 9, 11 (2) and 12 (4) as
permissible regulations the State may impose on the minorities as a condition
for granting aid to their educational institutions. Ray C.J. in St. Xavier
College case, observed that though the opinion was given in Kerala Education
Bill on an order of reference under Art. 143 is not binding on this court in
any subsequent matter wherein a concrete case the infringement of the rights
under any analogous;
provision may be called in question, it is entitled
to great weight. Ray C.J. proceeded to observe that nonetheless the exposition
of the various facets of the rights under Art.
29(1) and 30 by Das, C.J. speaking for the
majority, with utmost clarity, great perspicuity and wisdom has been the text from
which Court has drawn its sustenance in the subsequent decisions. To the extent
that this Court has applied these principles to concrete cases there can be no
question of there being any conflict with what has been observed by Das, C.J.
Ray, C.J. was of the view that similar provisions were held to be invalid as
they fell with S. 48 and 49 of the Kerala Education Act, which was similar to
cl.
12(4) was held invalid. Mathew, J. was of the
view that though in the Kerala Education Bill case, the Court upheld the
provisions similar to those in S. 51A(1) (b) and 51 (A) (2) (b), the subsequent
decisions of this Court left no doubt that the. requirement of subsequent
approval for dismissing or terminating the services of teachers would be
offending Art. 30. (Learned Judge referred to D.A.V. College case).
In the Kerala Education Act case (supra), the
validity of sub-ss. 2 & 4 of S. 48, S. 49, S. 53, Sub-ss. 1-9 and sub-ss. 2
and 4 of S. 56 were challenged. Hidayatullah, C.J.
speaking for the Court observed that after
the erection of the Governing Body of the Managing Council, the founders or
even the minority community had no hand in the administration. The two bodies
were vested with the complete administration of the institution and were not
answerable to the founders in this respect. Sub-ss. (2), (4) and (5) and (6) of
ss. 48 and 49 clearly 995 vest the management and administration in the hands
of the two bodies with mandates from the university. Coupled with this is the
power of the Vice Chancellor and the Syndicate under sub-sections (2) and (4)
of S. 56 to have the final say in respect of disciplinary proceedings against
the teachers. In striking down clauses (2) and (4) of S. 56, the Learned Chief
Justice at p. 746 stated that the result was that sub-ss. (2) and (4) of S. 56
are ultra vires as they fail with ss. 48 and 49. The Scheme of the Act was that
a Governing Body or Managing Council was to be set up for private colleges and
it was provided that the composition of the bodies were to include Principals,
Managers of private Colleges and nominees of the University and Government as
well as elected representatives of the teachers. This out- side body was
entrusted with the administration. These two sections 48 and 49 which provide
for administration by the Governing Body or the Managing Council was held to be
ultra vires. Apart from it, the powers were conferred on the Syndicate of the
University to veto the decision of the Governing Council. Regarding
disciplinary matters, S. 56 conferred ultimate power on the University and the
Syndicate in respect of teachers. As the power to take disciplinary action was
taken away from the Private or the Minority Institutions and conferred on the
Governing Body or the Managing Council constituted under the Act and a provision
was made requiring the previous sanction on the Vice- Chancellor and provided
an unrestricted right to the Syndicate. It will be noted that the Chief Justice
found Ss.
56(2) and (4) ultra vires as they had to fail
alongwith Ss.
48 and 49 which deprived the institution of
the right to manage its own affairs.
In the case of D.A.V. College v. State of
Punjab (supra), cl. 17 provided that the staff initially appointed shall be
approved by the Vice-Chancellor and all subsequent changes shall be reported to
the University for Vice- Chancellor's approval. S. 17 does not, in fact, confer
on the Vice-Chancellor the power to veto the disciplinary action taken by the
private institution.
In St. Xavier College case, also the
management of the institution was completely taken away under Ss. 40 and 41 of
the Act. The Private Institution was required to be a constituent College of
the University and was to be governed by the Statutes that may be framed by the
University. Ss.
31A (1) (a) set up a Governing Body which to
include amongst its Principals the representatives of the University nominated
by the Vice-Chancellor and representatives of the reachers of the non-teaching
staff and students of the college. In the circumstances, the Court held that
the right to administer and to conduct the affairs of the institution, were
taken away from the institution. The 996 disciplinary proceedings which were to
be conducted against the teachers was required to obtain approval of the Vice-
Chancellor or any other officer of the University authorised by the
Vice-Chancellor. Apart from the objection to the power conferred on the
Vice-Chancellor to nominate any of its subordinate, the power conferred on the
Vice-Chancellor was found to be unconstitutional as it was a blanket power
unguided and uncanalised.
In Lilly Kurian v. Sr. Lewina and ors., the
provisions of ordinance 33, Chapter 67 of the ordinances framed by the
Syndicate of the University of Kerala, under S. 19 (1) of the Kerala University
Act, 1957 was challenged. S. 33 (1) provided that the management may at any
time place a teacher under suspension where a disciplinary proceedings against
him is contemplated or is pending. He shall be paid subsistence allowance and
other allowances by the Management during the period of suspension at such
rates as may he specified by the university. The teacher shall have the right
to appeal against the order of suspension to the Vice- Chancellor of the
University within a period of two months from the date on which he receives the
order of suspension.
Cl. 4 of ordinance 33 provided that the
teacher shall be entitled to appeal to the Vice-Chancellor of the University
against any order passed by the Management in respect of the penalties referred
to in items (ii) to (v). Ordinance 33(4) conferred a right of appeal on the
teacher to prefer an appeal against the order of Management to the Vice-
Chancellor in respect of the penalties imposed on him.
Ordinances 33(1) and 33(4) were struck down
by this Court on the ground that the conferment of right of appeal an outside
authority like the Vice-Chancellor under ordinance 33(4) took away the
disciplinary power of the minority institution. The Vice-Chancellor was given
power to veto the disciplinary control which amounted to clear interference
with disciplinary power of the minority institution. It was found to be a
fetter on the right of administration conferred under Art. 30(t). The main
ground on which the powers were found to be violative of the right conferred
under Art. 30 was that the right of appeal was provided without defining the
scope of the appellate authority. In the cases referred to, namely, Very Rev.
Mother Provincial, D.A.V. College and Lilly Kurian, the powers conferred on the
Vice-Chancellor were held to be blanket power, unguided and uncanalised. The
back ground of the decisions was that the minority institutions were deprived
of the powers of administration by forming a body which deprived the
institution of all its powers. In such circumstances, it was found that the
power was uncanalised. In the case of Rev.
Father W. Proost and 997 Ors. (supra), S. 48
was enacted providing that the minority institution shall be entitled to make
appointments, dismissal, removal, termination of service and reduction in rank
of teachers, subject only to the approval of the Syndicate of the University,
which was not challenged. The institution claimed exemption under s. 48B.
Bearing the facts of the cases set out above, we have to consider the impugned
Act and determine whether the impugned provisions infringe the rights conferred
on the minority institutions under Art. 30.
The statements of object and reasons and the
salient features of the bill as stated in the objects and reasons and the
impugned sections have been set out in full at the beginning of the judgment.
The main object of the legislation is to regulate the service conditions of the
teachers in the private educational institutions and for ensuring the security
of service of the teachers. It is further stated that private institution were
punishing teachers on flimsy grounds without framing charges and without giving
an opportunity to explain. In the preamble it is also stated that the Act is to
provide for terms and conditions of service of teachers and to control of the
recognised private educational institution. S. 3 of the Act provides that no
teacher employed in any private educational institution shall be dismissed,
removed or reduced in rank nor shall his appointment be otherwise terminated
except with the prior approval of the competent authority. S. 3 (2) will have
to be read alongwith S. 3 (1) which provides that when a proposal to dismiss,
remove or reduced in rank or otherwise terminate the appointment of any teacher
employed in any private educational institution is communicated to the
competent authority, the competent authority shall if it is satisfied that
there are adequate and reasonable grounds for such proposal, approve such
dismissal, removal, reduction in rank or termination of appointment. The
Proviso to S. 3(1) states that if any educational management, agency or
institution contravenes the provisions of this sub- section, the teacher
affected shall be deemed to be in service. This section was challenged as
conferring a power of taking disciplinary proceedings on an outside authority
and as such it should be held as violative of the rights conferred on the
minority institutions. If the power of approval conferred on the competent
authority is a blanket power uncanalised and without guidelines, it will have
to be held as invalid.
The question, therefore, arises whether the
section provides sufficient guidelines for the exercise of the power by the
competent authority. In the State of West Bengal v.
Subodh Gopal Bose and ors. it was held that
the statement of objects and reasons could be referred to 998 for the limited
purpose of ascertaining the conditions prevalent at the time which actuated the
sponsor of the bill to introduce the same and the extent of urgency and the
evil which he sought to remedy since these matters were relevant for deciding
whether the restrictions were reasonable within the meaning of Art. 19(2) to
(6). The object and reasons for the legislation make it very clear that the
legislation was intended to regulate the service conditions of teachers
employed in private educational institutions and for the security of service of
the said teachers. The preamble is also an aid in construing the provisions of
the Act. The House of Lords in Att. Gen. v. H.R.H. Prince Earnest Augustus of
Hanover, held that when there is a preamble it is generally in its recitals
that the mischief to be remedied and the scope of the Act are described. It is,
therefore, permissible to have recourse to it as an aid to construing the
enacting provisions. The preamble states that the Act it to provide for terms
and service conditions of teachers. If the power conferred under S. 3 (1) and
s. 3(2) is restricted to regulating the service conditions of teachers and for
ensuring their security of service, the power conferred would be valid. It was
submitted by Mr. Lal Narain Sinha the learned counsel for the appellants that
the power is uncanalised because the approval can be withheld even on merits
which would in fact deprive the disciplinary powers of the minority
institutions.
It is a well settled rule that in
interpreting the provisions of a statute, the court will presume that the
legislation was intended to be intra vires and also reasonable. The rule
followed is that the section ought to be interpreted consistent with the presumption
which imputes to the legislature an intention of limiting the direct operation
of its enactment to the extent that is permissible. Maxwell on interpretation
of Statutes, Twelfth Edn., P. 109 under the Caption: "Restriction of
operation" States:- "Sometimes to keep the Act within the limits of
its scope, and not to disturb the existing law beyond what the object requires,
it is construed as operative between certain persons, or in certain
circumstances, or for certain purposes only, even though the language expresses
no such circumscription of the field of operation." The following passage
in Bidie v. General Accident, Fire and Life Assurance Corporation was cited
with approval in Kesavananda Bharti v. State of Kerala :
999 "The first thing one has to do, I
venture to think, in construing words in a section of an Act of Parliament is
not to take those words in vacue, so to speak, and attribute to them what is
sometimes called their natural or ordinary meaning. Few words in the English
language have a natural or ordinary meaning in the sense that they must be so
read that their meaning is entirely independent of their context. The method of
construing statutes that I prefer is not to take particular words and attribute
to them a sort of prima facie meaning which may have to displace or modify. It
is to read the statute as a whole and ask oneself the question: "In this
state, in this context, relating to this subject-matter, what is the true
meaning of that word ?" According to Holmes, J. in Towne v. Eigner, a word
is not crystal, transparent and unchanged; it is the skin of living thought and
may vary greatly in colour and content according to the circumstances and the
time in which it is used.
Gwyer, J. in Central Provinces and Berar Act,
held:
"A grant of the power in general terms,
standing by itself, would no doubt be construed in the wider sense;
but it may be qualified by other express
provisions in the same enactment, by the implication of the context, and even
by the considerations arising out of what appears to be the general scheme of
the Act." To the same effect are the observations of this Court in Kedar
Nath Singh v. State of Bihar :
"It is well settled that in interpreting
an enactment the Court should have regard not merely to the literal meaning of
the words used, but also take into consideration the antecedent history of the
legislation, its purpose and the mischief it seeks to suppress. (The Bengal
Immunity Co. Ltd. v. The State of Bihar [1955] 2 S.C.R. 603 and R.M.D.
Chamaurbaugwalla v. The Union of India [1957] S.C.R. 930 cited with
approval." This Court has in several cases adopted the principle of
reading down the provisions of the Statute. The reading down of a provision of
a statute puts into operation the principle that so far as it is reason- 1000
ably possible to do so, the legislation should be construed as being within its
power. It has the principle effect that where an Act. is expressed in language
of a generality which makes it capable, if read literally, of applying to matters
beyond the relevant legislative power, the Court will construe it in a more
limits sense so as to keep it within power.
Applying the principles laid down in the
cases cited above, the power conferred under S. 3 (1) and (2) of the impugned
Act will have to be construed. This Court has in St. Xavier's College case
(supra) held that the provisions of S. 51A (1) of the impugned Act in that case
which provided that no member of the other academic and non- teaching staff of
an affiliated college and recognised or approved institution shall be
dismissed, or removed or reduced in rank except after an enquiry in which he
has been informed of the charges against him and given a reasonable opportunity
of being heard in respect of those charges and until he has been given a
reasonable opportunity of making representation on any such penalty proposed to
be inflicted on him, as a valid condition. Mathew, J. affirmed that if the
purpose of the approval is to see that the provisions of sub-sec. 51 (A) (1)
(a) are complied with, there can possibly be no objection in lodging the power
of approval even in nominee of the Vice-Chancellor. Khanna, J. has held that if
the power is confined only to cases of dismissal, removal or reduction in rank
or termination of service as mala fide and by way of victimisation, the power
would be valid. Regarding the power of interference with the conclusion of a
domestic tribunal in disciplinary matters, this Court has held that the
decision can be interfered with if there is want of good faith or when there is
victimisation or when the management has been guilty of basic error or
violation of principles of natural justice or when the material findings are
completely baseless or perverse (Indian Iron and Steel Co. Ltd. v. Their
Workmen.
It has also been held that the authority
interfering is not a Court of Appeal and cannot substitute its own judgment.
The impugned legislation was passed in the
year 1975.
It must be presumed that the legislature was
conscious of the limitations of the power which the competent authority can
have in granting or withholding approval in the case of disciplinary
proceedings conducted by private institution.
cl. 12(4) of the Kerala Education Bill
(supra) was held to be valid on the ground that it was designed to give
protection and security to the ill-paid teachers who are engaged in rendering
service to the nation and protect the backward classes. If the power is 1001
constrused as conferring unrestricted power and if the provisions are held
invalid, it will result in considerable mischief and would result in depriving
the protection that is available to the poor teacher regarding their security
of service. The legislation was for the specific purpose of regulating the
service conditions and providing security of service and for preventing
teachers from being punished on flimsy grounds without framing charges and
without giving an opportunity to explain. lt is very different from other
cases, in which the legislation was aimed at depriving the minority
institutions of all its powers. The only aim of the impugned legislation is to
provide security of service. As pointed out there are sufficient guidelines in
the objects and reasons in the legislation as well as in the preamble.
In the circumstances, it is not only reasonable
but proper that a restricted meaning is given to the power of prior approval
conferred on the competent authority under s.3.
S.3(1) and (2) will have to be read together.
The procedure contemplated is that when the educational institution proposes to
dismiss, remove or reduce in rank or otherwise terminate the appointment of any
teacher it should communicate to the competent authority its proposal.
The latter part of S.3(2) mentions that the
competent authority shall if it is satisfied that there are adequate and
reasonable grounds for such proposal approve such dismissal, removal, reduction
in rank or otherwise termination of appointment. The approval of an order of
dismissal or removal etc. will have to be read alongwith S.3(1) which provides
that no teacher shall be dismissed etc. without the previous approval of the
competent authority. When a domestic enquiry has been conducted and the teacher
is given an opportunity to rebut the charges and show cause against the
punishment proposed and when fair procedure has been followed and the authority
comes to the conclusion that the disciplinary action should be taken against
the teacher the proposal will have to be sent to the competent authority. The
competent authority will examine the proposal alongwith the procedure adopted
by the institution and such dismissal, removal or reduction in rank or
termination of appointment. Sub. s(2) requires the competent authority to
approve such a proposal if it is satisfied that there are adequate and
reasonable grounds for such proposal. The two words "adequate and
reasonable" in our opinion furnish sufficient guidelines. The competent
authority can interfere if there are no material at all for sustaining the
order of punishment or when on the materials found the charge is completely
baseless and perverse. The word "adequate" in sub-section will have
to be understood as being confined to such examination of the proposal. The
word "reasonable" would indicate the power of the competent authority
is confined to the power of an authority to inter- 1002 fere with the enquiry
and conclusions arrived at by the domestic Tribunal. The competent authority
may satisfy itself that the rules of natural Justice has been satisfied, that
the teacher was given an opportunity to defend the charges against him and to
show cause against the punishment proposed to be awarded to him and that a fair
procedure has been observed. The authority may also be entitled to interfere
when the punishment was imposed by the institution due to mala fides or with a
view to victimised him or such like grounds. The word "reasonable"
cannot be understood as conferring a power to interfere with the enquiry by the
domestic tribunal as a Court of Appeal on merits. The law relating to the
circumstances under which the proceedings of the tribunal can be interfered
with has been clearly laid down. Sufficient guidelines are discernible from the
Statements of objects and reason which state that the enactment was for the
purpose of preventing private institutions from laking disciplinary action on
flimsy grounds without framing charges and without giving an opportunity to
explain and for regulating the service conditions of teachers and for ensuring
their security of service. We are satisfied that sufficient guidelines are
indicated in the Act. The words "adequate and reasonable" should be
given a restricted meaning so as to validate the provisions of the section.
Thus, understood, the objection raised by Mr. Lal Narain Sinha, learned counsel
for the appellant, that S.3(1) and (2) lack guidelines and have conferred a
blanket power, cannot be upheld.
It was next contended by Mr. Lal Narain Sinha
that no question of principles of natural justice arised when the conditions of
service between the institution and the teacher are regulated by contract. We
are unable to accept this contention for the legislature is competent to enact
provisions limiting the power of dismissal and removal. The Legislature has
given security of service to employees in industries and in other institutions.
It was submitted by the learned counsel that the offence of misconduct has not
been classified in the Act and that no procedure for conducting disciplinary
enquiry has been prescribed. Such details are not essential. It is within the
jurisdiction of the institution to conduct an enquiry and impose punishments.
It is also the right of the competent authority to withhold approval on
adequate and reasonable grounds. The plea that the competent authority may be
any petty officer cannot also be upheld as the competent authority is defined
under S. 2(1) as meaning any authority, officer or person authorised by
notification performing the functions of competent authority under this Act.
The competent authority or officers of the educational department who are
incharge of administration of educational institutions in the area, cannot be
called petty officers.
1003 Section 3(3)(a) and 3(3)(b) relate to
suspension of a teacher Sub. s. 3(a) requires that a teacher employed in a
private institution shall not be placed under suspension.
Without an enquiry into the gross-misconduct
of such teacher is contemplated and sub. s.3(b) requires that the period of
suspension shall not exceed two months. If it exceeds two months and the
enquiry is not completed within that period, such teacher shall, without
prejudice to the enquiry, be deemed to have been restored as teacher. But the
proviso enables the authority to extend the period of suspension for another
two months if in his opinion the enquiry could not be completed within the
period of two months. Sub. ss.(a) & (b) of S. 3 which relate to suspension
are regulatory in nature and are intended to safeguard the teachers from being
suspended for unduly long periods without there being an enquiry into gross
misconduct. We are unable to say that these provisions interfere with the right
of administration of the private institutions. S.3(4) states that every teacher
placed under suspension shall be paid subsistence allowance at such rates as
may be prescribed during the period of his suspension. This sub-section is
purely regulatory in nature and unobjectionable.
S. 4 confers a right of appeal against the
order of punishment imposed on teachers employed in private educational
institutions. A teacher who is dismissed, removed or reduced in rank or whose
appointment is otherwise terminated or whose pay and allowances or any of the
whose conditions o service are altered or interpreted to his disadvantage may
prefer an appeal to such authority as may be prescribed. This section was
challenged by Mr. L. N.
Sinha, learned counsel, on the ground that
the right of appeal conferred is a blanket power without any restriction.
In any event, the submission that the right
of appeal is conferred only on the teacher and not on the institution.
Though no restriction are placed on the
appellate power, we feel it may be possible to read down the section. But the
learned counsel is on firm ground when he submits that the right of appeal is
confined only to the teachers and not available to institution. This infirmity
invalidates S.4.
Section 5 is consequential of S.4 in which
power is conferred on the competent authority to hear appeal in certain past
disciplinary cases. S.5 also will have to fail alongwith S.4. S.6 relates to
retrenchment of teachers under certain conditions. It provides that when any
retrenchment is rendered necessary, consequent on any order of the Government
relating to educational institutions or course of instruction or any other
matter such retrenchment may be effected with the prior approval of the
competent authority.
This section is also intended to provide
security of service of the teachers and is regulatory in nature and 1004 the
validity of which cannot be questioned. S. 7 requires the pay and allowances of
any teacher employed in any private educational institution shall be paid on or
before such day of every month, in such manner and by or through such
authority, officer or person as may be prescribed. This section is also
regulatory in nature and is intended for securing regular payment of the
teachers.
The validity of other sections was not
questioned in the writ petitions, and, therefore, it is not permissible to go
into it.
In the view we have taken, we do not think
that we should go into the merits of each of the cases. In C.A. No.
1280 of 1978-The All Saints High School
Hyderabad v. The Govt. of Andhra Pradesh and ors.-the learned counsel appearing
for the school before the High Court sought the decision only on the legal
issues and the questions emanating from the provisions of the Act and
specifically requested the court not to decide the merits of the case. In some
of the petition the facts have been gone into but we would refrain from going
into the facts for it has to be decided as to whether the competent authority
has acted within the restricted jurisdiction which have been stated with in our
judgment. If the competent authority had exceeded its jurisdiction, it would be
open to the aggrieved institution to question the validity of such action. These
matters will have to be decided on merits. In the circumstances. we remit all
the Civil Appeals to the High Court for disposal on merits in the light of this
judgment.
ORDER In the view of the majority, sections
3(3) (a), 3(3) (b), 6 and 7 of the Andhra Pradesh Recognised Private
Educational Institutions Control Act, 1975 are valid while sections 3(1), 3(2),
4 and 5 of the Act are invalid in their application to minority educational
institutions. It must follow that such institutions cannot be proceeded against
for violation of provisions which are not applicable to them. The matters are
remanded to the High Court of Andhra Pradesh for final disposal on merits in
the light of the judgments.
There will be no order as to costs.
N.K.A.
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