Association of University ... Vs State of Tamil Nadu and Anr. On 7 September, 1990 PDF

Association Of University ... vs State Of Tamil Nadu And Anr.
on 7 September, 1990
Madras High Court Madras High Court Association Of University ... vs State Of Tamil Nadu And Anr. on 7 September, 1990 Equivalent citations: (1991) IILLJ 31 Mad Author: Raju Bench: A Anand, D J Raju JUDGMENT Raju, J. 1. These batches of cases, some writ petitions as well as writ appeals, are taken up for consideration together since they involve identical questions of law and common submissions have been made by counsel appearing on either side. The consideration of some of these cases individually on merits will ultimetely depend upon the decision that we render on the legal issues. 2. The constitutional validity of Sections 2(7), 11, 24(3) and 32 of the Tamil Nadu Private Colleges (Regulation) Act, 1976 is being questioned by the respective petitioners in the above proceedings. The facts that all the educational institutions involved in the these proceedings are minority institutions and they get 100% State aid in respect of teaching grant and 80% in respect of non-teaching grant and all of them are affiliated to one or the other Universities within the State of Tamil Nadu are beyond controversy. 3. The Government of Tamil Nadu decided to regulate the conditions of service of teachers employed in private colleges and to make the necessary law relating to the managing bodies and of payment of grants to such colleges by means of an appropriate statute. As prelude, the Tamil Nadu Private Colleges (Regulation) Ordinance, 1975 was promulgated on 21st November, 1975. The said Ordinance was modelled upon the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973, hereinafter referred to as the Schools Act with appropriate and required modification to suit the institutions (colleges) dealt with under the Ordinance. Sub-sequently, due to certain supervening circumstances and the imposition of the President's Rule in the State, the Governor of Tamil Nadu, by virtue of the powers delegated to him by the President of India, promulgated the Tamil Nadu Private Colleges (Regulation) Ordinance, 1976 with some modifications to make certain provisions of the Ordinance inapplicable to minority colleges. It will be relevant to point out at this stage that those modifications came to be effected in the light of the judgment of a Division Bench of this Court in a batch of writ petitions, W.P. No. 4478 of 1974 etc., dated 17th December, 1975 whereunder the constitutional validity of some of the provisions in the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 in their application to the minority educational institutions in the State came to be considered and the Division Bench held that the provisions of Sections 8(1) (a), 11(1) (b), Rules 7, 9 except Clauses (e) and (k) of sub-rule (2), 10 to 14, 16 to 18 and 22 to 24 made thereunder are inapplicable to minority schools in the State. Thereafter, in due course, the said Ordinance No. 11 of 1976 was replaced by the President's Act, namely, the Tamil Nadu Private Colleges (Regulation) Act, 1976, some of the provisions of which are under our consideration presently. The Tamil Nadu Private Colleges (Regulation) Rules, 1976 were also made and brought into force for effectively enforcing the provisions of the Act. 4. It is necessary at this stage to refer to the provisions under challenge as well as certain other inter-related provisions thereto before actually proceeding to consider and determined the issues raised in these cases. Section 2(8) defines "private college" to mean a college maintained by an educational agency and approved by, or affiliated to, a university but does not include a college established or administered or maintained by the Central Government or the State Government or any local authority or any university imparting religious instruction alone but not any other instructions. An educational agency in relation to any minority college is defined under Sec. 2(4) to mean any person who, or body of persons which, had established and is administering or proposes to established and administer such minority college and in respect of any other private college to mean any person or body of person permitted or deemed to be permitted under the Act to establish and maintain such other private college. Sec. 2(7) which contains the definition as to 'minority
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Association Of University ... vs State Of Tamil Nadu And Anr. on 7 September, 1990
college' reads as follows :"'minority college' means a private college of its choice established and administered, or administered, by any such minority whether based on religion or language as has the right to do so under Clause (1) of Art. 30 of the Constitution." 5. Section 3 of the Act provides that save as otherwise expressly provided in the Act, no person shall, without permission of the Government and exception accordance with the terms and conditions specified in such permission, establish, on or after the date of commencement of the Act, any private college and that such permission shall be in addition to the obtaining of affiliation of such college to a university, concerned. Section 4 provides for application for permission and the necessary formalities to be complied with by the applicant and Section 5 provides for grant of permission. In respect of private colleges in existence on the date of the commencement of the Act, the educational agency concerned was obliged to send a statement within the time prescribed on receipt of which such college shall be deemed to have been granted the required permission under Section 5. Section 7 provides for approval in cases of transfer of management. Section 8 provides that any minority, whether based on religion or language, may establish and administer any private college without permission under sub-section (1) of Section 5 read with Section 3 and 4. Section 9 provides that every minority college in existence before the date of commencement of the Act shall send to the competent authority a statement containing the required particulars. Section 10 provides the procedure relating to the payment of grant. Section 11, which is ones of the provisions under challenge, reads as follows :"Constitution of college committee :- Every private college, not being a minority college, shall have a college committee which shall include the Principal of the private college and two Senior Professors employed in the private college." 6. Section 12 provides for the Office of a Secretary of the college committee and Sections 13 and 14 contain the provisions regulating the conduct of meetings of the college committee and also specify the functions of the college committee and responsibilities of the educational agency under the Act. Section 14(2) and (3) reads as follows :"(2) The educational agency shall be bound by anything done by the college committee in the discharge of the functions of that committee under this Act. (3) For the purposes of this Act, any decision or action taken by the college committee in respect of any matter over which the college committee has jurisdiction shall be deemed to be the decision or action taken by the educational agency." Chapter III-A has been introduced with effect from 1st June 1981 providing for the appointment of special officers in certain cases an certain incidental provisions. Section 15 provides for the university making regulations, statutes or ordinances specifying the qualifications required for the appointment of teachers and other persons employed in any private college. Section 17 provides that the Government may make rules in consultation with the university regulating the number and conditions of service (including promotion, pay, allowances, leave, pension, provident fund, insurance and age of retirement and rights as respects disciplinary matters but excluding qualifications) of the teachers and other persons employed in any private college. Section 18 reads as follows :"Teachers and other persons employed in private colleges to be governed by such Code of Conduct :(1) Every teacher and every other person employed in any private college shall be governed by such Code of Conduct as may be prescribed and if any teacher or other person so employed violates any provision of such
Code of Conduct, he shall be liable to such disciplinary action as may be prescribed. (2) The college committee may define the standards of conduct to be observed by teachers and other persons employed in the private college, such standards not being inconsistent with the provisions of the Act and the rules made thereunder." 7. Sections 19, 20 and 21, which are relevant for the purposes of our consideration, are set out below :"19. Dismissal, removal or reduction in rank or suspension of teachers and other persons employed in private colleges :(1) Subject to any rule that may be made in this behalf, no teacher or other person employed in any private college shall be dismissal, removed or reduced in rank nor shall his appointment be otherwise terminated except with the prior approval of the competent authority. (2) Where the proposal to dismiss, remove or reduce in rank or otherwise terminate the appointment of any teacher or other person employed in any private college 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. (3) (a) No teacher or other person employed in any private college shall be placed under suspension, except when an enquiry into the gross misconduct, within the meaning of the Code of Conduct prescribed under sub-section (1) of Section 18, of such teacher or other person 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 or other person shall, without prejudice to the inquiry, be deemed to have been restored as teacher or other employee : 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 or other person. 20. Appeal against orders of punishment imposed on TEACHERS and other persons employed in private colleges :Any teacher or other person employed in any private college :(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 such order to such authority or officer as may be prescribed; and different authorities or officers maybe prescribed for different classes of private colleges. Explanation :- In this Section, the expression "order" includes any order made on or after the date of commencement of this Act in any disciplinary proceedings which was pending on that date. 21. Second appeal in case of dismissal, removal or reduction in rank or termination of appointment of teachers or other persons employed in private colleges :If the appeal under Section 20 was against the dismissal, removal or reduction in rank or the termination otherwise of the appointment of any teacher or other person employed in any private college, such teacher or
other person or the educational agency aggrieved by any order made in any such appeal, may prefer an appeal against that appellate order to the Tribunal." Sec. 22 deals with the appellate authorities and filing of appeal in certain post-disciplinary cases in the light of Sections 20 and 21. 8. Section 24, a portion of which namely, sub-section (3) is challenged, reads as follows :"The provision of sub-section (2) of Section 18 and of Sections 19 to 22 (both inclusive) of this Chapter or any rule providing for all or any of the matters specified therein or any order made in relation to any such matter shall not apply to a minority college." Section 30 provides for taking over management of a private college and Section 32 which makes a special provision in respect of minority colleges is as follows :"Minority college not to be taken over : Notwithstanding anything contained in this Chapter, the Government shall not take over the management of any minority college under Section 30." 9. When the matters were taken up for hearing, Mr. T. Martin, one of the learned counsel appearing for one of the minority institutions, made a request that the consideration of the cases may be deferred pending the decision of the Supreme Court in C.A. Nos. 1521-1556 and 3042-91 of 1979 etc., which are the appeals filed and pending before the Supreme Court as against the judgment of the Division Bench of this Court in respect of the Schools Act, referred to supra. The learned counsel drew our attention to an order dated 22nd July 1987 whereunder two learned Judges of the Supreme Court were pleased to refer the matter to the Hon'ble the Chief Justice of the Supreme Court for the consideration of the appeals by a larger Bench of not less than five Judges having regard to "some patent inconsistency" between the decisions of the Supreme Court reported in Kerala v. Mother Provincial and St. Xaviers College v. Gujarat on the one hand and Gandhi Faizeam College v. Agra University on the other. Since we are to consider the issue only with reference to the law declared by the Supreme Court and in force as on date and the issues of the nature raised in these proceedings are coming up for consideration frequently and the problem is a day-to-day recurring one, we expressed our inability to postpone the matter indefinitely and requested the counsel to make their submissions. 10. The first ground of attack of Mr. K. Chandru, learned counsel who made leading arguments on behalf of those challenging the impugned provisions is as follows :- The provision of Section 2(7) of the Act which has the effect of extending the definition as well as the scope of rights of minority found under Article 30(1) of the Constitution of India is ultra vires of Article 30(1) of the Constitution of India and consequently liable to be struck down. It is the submission of the learned counsel that Section 2(7) of Act, unlike Article 30(1) of the Constitution of India which protects the rights of minorities to establish and administer the educational institution established by them, goes to the extent of enabling even the institutions not established but only being administered by such minority to be entitled to the protection of Article 30(1) of the Constitution of India. Learned counsel appearing for the institutions are not in a position to effectively meet this vital attack. This, we find, is directly opposed to the ratio of the Supreme Court in the decision reported in Assiz Basha v. Union of India wherein the Supreme Court categorically held that the words "establish and administer" 1 the Article must be read conjunctively and so read it gives the right to the minority to administer an educational institution provided it has been established by it. Consequently the words "or administered" in Section 2(7) of the Act have to be struck down as being ultra vires of Article 30(1) of the Constitution of India. We find that a learned single Judge of this Court in a
decision reported in Thirug-nanasambandam Primary School v. State of T. N. Education Department 1984 Writ L.R. 146 (Suppl) had an occasion to consider the very issue in respect of an identical provision contained in Section 2(6) of the Schools Act and struck down that part of the offending portion of the said provision. 11. The second ground of attack by Mr. K. Chandru, learned counsel was directed against Section 32 of the Act which provides that notwithstanding anything contained in Chapter V of the Act, the Government shall not take over the management of any minority college under Section 30. Learned counsel contended that the exemption granted in respect of the minority institution has the effect of granting immunity even where it is totally mismanaged and that the said provision is violative of Article 14 of the Constitution of India. We are of the view that the validity of Section 32 of the Act does not arise for consideration either directly or indirectly in any of the cases before us. It is by now well settled that constitutional issues and constitutional validity of an Act or provision of an Act are not to be decided for academic purposes and that unless the issue directly arises on the facts of a case before the Court, the determination of the same is necessarily to be avoided. Learned counsel does not dispute the position that in none of the cases, any issue arises which has an impact on the validity or otherwise of the said provision of the Act. Therefore, we decline to go into the question of the validity of Section 32 of the Act. 12. The third ground of attack levelled is against the provisions of Section 11 of the Act which exempts a minority college from having a college committee contemplated therein consisting of the Principal as well as two Senior Professors employed in the college concerned. It is the submission of the learned counsel that if really excellence in education is to be achieved and maladministration of the minority institutions has to be averted, the presence of the Principal and two Senior Professors as well as a nominee of the university in the college committee will be a must. Learned counsel placed reliance upon the decision reported in Gandhi Faizeam College v. Agra University (supra) in support of his submission. The Bench, which consisted of three learned Judges of the Supreme Court, got divided among themselves in the said case with the result two learned Judges holding statute 14-A framed by the University of Agra to be merely regulatory and therefore not constituting interference with the autonomy or fundamental rights of the minority institution under Article 30(1) of the Constitution of India and one learned Judge striking a dissenting note and coming to the conclusion that statute 14-A was in Pari materia with those of Section 33(1) (a) of the Gujarat University Act, 1949 which was struck down by the Supreme Court consisting of a larger number of Judges in the decision reported in St. Xaviers College v. Gujarat (supra) and that the same binds the issue in favour of the minority institution in the said case. The said learned Judge was also one of the learned Judges who constituted the Bench which decided the case in St. Xavier College v. Gujarat (supra). 13. On behalf of the educational institutions, Mr. Habibullah Badsha, Mr. T. Martin and other learned counsel submitted that if a College Committee as contemplated in Section II for the purposes and with powers as contained in the provisions of Chapter III is to be made, it has the effect of totally destroying not only the autonomy of the minority institution but has the effect of replacing for all purposes effectively the educational agency or the authority which really established and is administering the minority college. In this connection our attention was invited to the provisions contained in Section 14(2) and (3) of the Act whereunder it is laid down that the educational agency shall be bound by anything done by the college committee in the discharge of the functions of the Committee under the Act and for the purposes of the Act, any decision or action taken by the college committee in respect of any matter over which the college committee has jurisdiction shall be deemed to be the decision or action taken by the educational agency. The submission, therefore, was that having regard to such drastic nature of those provisions, the minority college has been rightly exempted from complying with Section 11 of the Act. Reliance was also placed upon the Division Bench judgment of this Court in W.P. No. 4478 of 1974 etc. rendered in respect of a provision in parimateria under the Schools Act wherein the Division Bench declared similar provision to be inapplicable to a minority institution, when made without exempting the minority institution. We find that the ratio of the decision reported in St. Xaviers College v. Gujarat (supra) squarely governs this issue in favour of the minority institutions. The effect of having a committee of the nature with such powers as are conferred under Section 14(2) and (3) of the Act is to dispossess the management of its power of administration of the college by a totally different agency
constituted in the name of the college committee resulting in undermining the autonomy of the body or the authority which founded the college in the matter of vital functions and administration of the college. Consequently, the plea of challenge directed against Section 11 of the Act is, therefore, liable to be rejected. 14. It will be interesting to note that it is only when an identical issue with reference to the constitution of a managing committee under the Schools Act came up for consideration before the Supreme Court in the pending appeals, the two learned Judges of the Supreme Court noticed patent inconsistency between the two lines of judgments referred to above and deferred the decision pending reconsideration of the issue by a larger Bench. In the light of this decision, we are obliged to apply the ratio of the decision reported in St. Xaviers College v. Gujarat (supra) which is not only of the larger Bench but still holding the field. Consequently, we will be perfectly in order in rejecting the challenge to Section 11 of the Act. 15. The next challenge is directed against Section 24(3) of the Act which lays down that the provisions of sub-section (2) of Section 18 and of Sections 19 to 22 (both inclusive) or any rule providing for all or any of the matters specified therein or any order made in relation to any such matter shall not apply to a minority college. In this context, learned counsel high-lighted his submission with reference to the desirability as well as the necessity to apply the provisions contained in Sections 18(2) and 19 to 22 of the Act even to a minority college. With our conclusion rendered supra that the exemption granted in respect of a minority college in having a college committee was valid, the exemption from the provisions of Section 18(2) which confers powers upon such college committee to define the standards of conduct to be observed by teachers and other persons employed has to be equally upheld. The absence of a college committee as contemplated under Section 11 per se renders Section 18(2) of the Act automatically inapplicable to a minority college. 16. With reference to Section 19 of the Act, learned counsel submitted that the provisions requiring prior approval of the competent authority before a teacher or other person employed in a private college is dismissed, removed or reduced in rank or otherwise terminated is a very reasonable one and besides being regulatory in nature is absolutely necessary to protect the teachers and other staff from the onslaught of an unscrupulous management, be it concerning a minority or a non-minority institution. In pursuing the said submission, it is contended that sub-section (2) of Section 19 of the Act imposes reasonable safeguards in favour of the educational institution in the sense that if there are adequate and reasonable grounds for the proposed action of the school authorities, the competent authority shall approve the proposal. Learned counsel further submitted that unlike the other provisions which were the subject-matter of consideration and judicial pronouncement earlier before the Supreme Court, the competent authority in the Collage Act cannot be said to be conferred with any arbitrary or unguided discretion to approve or refuse and, therefore, the provisions contained in Section 19(1) and (2) reasonably balances the rights as well as the obligations of the minority college without in any manner depriving the college authorities of their control over the staff of the college. Likewise, learned counsel submits that the provision contained in Section 19(3) of the Act providing for a maximum period of suspension pending inquiry has an inbuilt safeguard with a provision for further extension and that a provision of the nature is one absolutely necessary to protect the labour and has been found to be not only reasonable but not offending the rights of a minority institution under Article 30(1) of the Constitution of India. With reference to the provisions contained in Sections 20 and 21 of the Act, learned counsel submitted that the provision for an appeal in favour of a teacher or other person employed, to such authority as may be prescribed and the right of a further appeal to the Tribunal manned by a judicial officer of the rank of a District Judge to a teacher or other person of the educational agency, is a reasonable and necessary one and that similar provisions have been upheld by the Supreme Court in the later decisions of that Court. It is further submitted that there is absolutely no justification whatsoever to make a difference in respect of the conditions of service of a teacher or other person employed in minority college on the one hand and the non-minority college on the other and the denial of the right of appeal against unlawful termination of services in respect of those working under minority institutions alone, irrespective of the fact that both the minority and non-minority institutions receive cent per cent grant from the State, will be discriminatory and violative of Art. 14 of the Constitution of India.
17. Mr. Vijayanarayanan, learned Counsel appearing in one of the matters before us, contended that being a matter pertaining to a contract of service, the Civil Court has its own limitations in granting relief against unlawful and arbitrary termination and that even the provisions of Art. 226 of the Constitution of India being supervisory in nature, effective justice cannot be rendered to the teachers or other persons employed in a private college in the absence of appellate provisions contained in Sections 20, 21 and 22 of the Act. 18. In meeting the said submissions of the learned Counsel, the learned Counsel appearing on behalf of the minority institutions, contended that the enforcement of the provisions contained in Sections 19, 20, 21 and 22 against a minority institution will have the effect of taking away from the minority institution of the power and right to enforce discipline, including the imposition of punishment and thereby deprive the right to administer the institution to its best advantage which is secured to them under Art. 30 of the Constitution of India. It is submitted that administration of the institution will take within it the right to take any disciplinary proceedings or place under ad-interim suspension the staff of a minority college and any restriction of the exercise of the said power of control and supervision over their staff will constitute interference with the internal administration of the institution as such resulting in violation of Art. 30(1) of the Constitution of India. 19. Mr. Somayajee, learned Counsel appearing for one of the minority institutions, submitted that there is no basis for the plea of absence of reasonable safeguards to the staff working in a minority institution. Learned Counsel submitted that if not under the Act and the rules made thereunder, under the terms of very contracts entered into with the staff there are sufficient safeguards for giving a reasonable opportunity etc. before imposing a punishment on the staff and that in the absence of the Act in question, the regulations and statutes hitherto applying will come to the aide and sufficiently protect the interests of the teaching staff. They also relied upon the decision of the Division Bench dated 17th December 1975 in W.P. No. 4478 of 1974 etc., and W.P. No. 295 of 1975 etc, dated 24th September 1975 rendered in respect of the Schools Act and submitted that having regard to the provisions of the said Act as well as the Act under consideration which are in pari materia, the decision rendered by the said two Division Benches squarely applies in favour of the minority institutions and that there is no justification for adopting a different ratio or standard of consideration in construing the provisions of the Act in question. 20. In support of his submissions, Mr. K. Chandru, learned Counsel referred to the decisions in Gandhi Faizeam College v. Agra University (supra) All Saints High School v. Govt. of Andhra Pradesh , Frank Anthony P. S. E. Association v. Union of India , Y. Theclamma v. Union of India and C. M. C. H. Employees Union v. C. M. College, Vellore Association (1988-I-LLJ-263) and several other decisions which need no special mention for consideration. As against this, learned Counsel appearing for the minority institutions, placed heavy reliance upon the decisions reported in Sidhibhai v. State of Gujarat (AIR) 1963 SC 540 Kerala v. Mother Provincial (supra) St. Xaviers College v. Gujarat (supra) and some relevant portions of the two unreported judgments of the Division Bench. Some portions of the judgments relied upon by the other side were also referred to wherein some of the provisions identical to the provisions in the College Act which the petitioners want to be enforced in respect of minority institutions were held not to be applicable in view of Art. 30(1) of the Constitution of India were also referred to and relied upon in their favour. The submission on behalf of the minority institutions was that in the light of the ratio in Kerala v. Mother Provincial (supra) and St. Xaviers College v. Gujarat (supra) rendered by larger Benches of 6 and 9 respectively, the law, if any laid down in any subsequent judgments of the Supreme Court with less number of strength constituting it, it is the law that was laid down by the larger Bench that should prevail and that the cases required to be considered only in the light of the ratio and principles laid down in those earlier decisions. The learned counsel for the petitioners though will have no serious quarrel with the proposition that the decision of the larger Bench should prevail over that of the smaller Bench irrespective of the fact as to which was earlier in point of time, submitted that having regard to the fact that the later judgments were rendered only after considering the earlier decisions also and with particular reference to the peculiar nature of the provisions, in-built safeguards and differences in the provisions themselves that were the subject matter of the
later decisions in contrast to those which were considered in the earlier cases, we are not precluded from going into the question independently in the context of the provisions contained in the College Act and determining the points raised with reference to the peculiar nature of the specific provisions before us for consideration in the light of the law declared by the Supreme Court of India. 21. Referring to the decisions in All Saints High School v. Government of Andhra Pradesh (supra) (Division Bench of three learned judges), it is submitted that the Supreme Court having upheld the applicability of Section 3(3) (a) and (b) of the Act under its considerations which is the same as Section 19(3) (a) and (b) of the College Act, the application of the said provisions in the College Act will not offend the provisions of Art. 30(1) of the Constitution of India and consequently the provisions of Section 24(3) to the extent it excludes the applicability of Section 19(3) is violative of Articles 14 and 30(1) of the Constitution of India. It may be stated at this stage that even in the said judgment a provision of the nature contained in Section 19(1) and (2) of the College Act was held to offend the protection under Art. 30(1) of the Constitution of India. 22. Referring to the decision in Frank Anthony P. S. E. Association v. Union of India (supra) which is a judgment of the Division Bench of two learned Judges of the said Court, it is submitted that the provisions similar Section 19(3) (a) and (b) of the College Act were held to be reasonable and not violative of Art. 30(1) of the Constitution of India and consequently we should strike down the provisions of Section 24(3) to the extent it excludes the applicability of Section 19(3) (a) and (b) to a minority institution. It may be pointed out even at this stage that even in this judgment, a provision like Section 19(1) and (2) in the College Act was held to constitution violation of Art. 30(1) of the Constitution of India. In the said decision, the Supreme Court was dealing with the validity of the provisions in Delhi School Education Act, 1973, with reference to the distinction made in respect of aided minority institution for institution and unaided minority institution for applying the provisions of the nature in question. The decision in Y. Theclamma v. Union of India (supra) was also relied upon for the submission made with reference to Section 19(3) (a) and (b). That was also a case arising under the Delhi School Education Act, 1973, where the Supreme Court held that a provision providing for prior permission of an educational officer to suspend a teacher was held not to violate Act. 30(1) of the Constitution of India. The College Act under consideration is slightly different in that there is no restriction in the initial exercise of discretion and it is only for extension of suspension for another term, it was made to depend upon the orders of the competent authority. Further, relying upon the decisions in Frank Anthony P. S. E. Association v. Union Of India (supra) and C. M. C. Hospital Employees' Union and another v. C. M. C. Vellore Association and other (supra) learned Counsel submitted that the provisions relating to appeal contained in Sections 21 and 22 will not constitute interference with the rights of the minority institution under Art. 30(1) of the Constitution of India. 23. In the decision in Frank Anthony P. S. E. Association v. Union of India (supra), the Supreme Court was considering the applicability or otherwise of Section 8(3) of the Delhi School Education Act, 1973. Mr. Chandru also, while referring to the decision in St. Xaviers College v. Gujarat (supra) submitted that their Lordships of the Supreme Court specifically found the provision under consideration in that case relating to arbitration against the orders passed in exercise of disciplinary jurisdiction to be arbitrary and unguided from the very nature of the constitution of the body and therefore found to constitute serious inroad into the right of the governing body to administer its institution. Adverting to the present appellate provisions, learned Counsel submitted that the appellate provisions in the College Act are not only reasonable but the minority institutions are also given the right of second appeal to the Tribunal, thereby safeguarding the interests of the minority institutions also unlike other Acts. Learned counsel also submitted that the provisions contained in Sections 20 and 21 of the Act should be taken up together as providing for a particular combined scheme of redressal of grievances of both the staff and management and therefore are very reasonable. It also contended that the first appeal to a member of the staff against the orders of the management is by virtue of Rule 14 of the rules before the State Government and the right of further appeal given to both the members of the staff as well as the private college concerned is to a judicial Tribunal manned by a judicial officer not below the rank of a District Judge. In Section 4 of the Andhra Pradesh Recognised Private Educational Institutions (Control) Act, 1975 which is also similar to Section 20 of the College Act was held to be violative of Art. 30(1) of the
Constitution of India in All Saints High School v. Government of Andhra Pradesh (supra) more for the reason that the right of appeal is given only to the member of the staff and not to the management and that it lacked guidelines in the matter of nominating the appellate authority as well as the manner of disposal of the appeal. 24. After careful consideration of the respective submissions of the learned counsel we are of the view that the decision of the Supreme Court in St. Xaviers College v. Gujarat (supra) and the ratio laid down therein should not be taken to declare as an invariable rule that there can be no provision for an appeal against an order passed by the management of a minority educational institution in exercise of its disciplinary proceedings and that any provision providing for such an appeal will constitute serious inroad into the rights secured under Art. 30(1) of the Constitution of India. So far as the ratio of the decision in St. Xaviers College case (supra) is concerned, the judgment of Ray C.J. could be taken to be generally the sum and substance of the views expressed by the other learned Judges. On the scope of rights secured under Act. 30(1) of the Constitution of India, the learned Chief Justice declared as follows :"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 affiliations are for uniformity, efficiency and excellence in educational courses and do not violate any fundamental right of the minority institutions under Article 30. The entire controversy centres round the extent of the right of the religious and linguistic minorities to administer their educational institutions. The right to administer is said to consist of four principal matters. First is the right to choose its managing or governing body. It is said that the founders of the minority institution have faith and confidence in their own committee or body consisting of persons selected by them. Second is the right to choose its teachers. It is said that minority institutions want teachers to have compatibility with the ideals, aims and aspirations of the institution. Third is the right not to be compelled to refuse admission to students. In other words, the minority institutions want to have the right to admit students of their choice subject to reasonable regulations about academic qualifications. Fourth is the right to use its properties and assets for the benefit of its own institution. The right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not in an absolute right. This is not free from regulation. Just as regulatory measures are necessary for maintaining the educational character and content of minority institutions, similarly regulatory measures are necessary for ensuring orderly, efficient and sound administration. Das, C.J., in the Kerala Education Bill case (supra) summed up in one sentence the true meaning of the right to administer by saying that the right to administer is not the right to mal-ad-minister." 25. Even in the decision of the Supreme Court in Kerala v. Mother Provincial (supra), the Supreme Court was concerned with the provisions conferring blanket powers upon the Syndicate of the University to interfere with and even wrest the action of the Governing Body of the Institution and it is only in that context the Supreme Court came to the conclusion that the bonafide nature of the provisions or the salutary considerations contained therein cannot stand in the face of the constitutional guarantee. The two unreported decisions no doubt do not deal with specifically the pattern of appellate remedies provided under the School Act and the question as to whether it suffers the same vice which the Supreme Court found in the provisions of the enactments considered in the decision reported in Kerala v. Mother Provincial (supra) and St. Xaviers College v. Gujarat (supra). On the other hand, the ultimate conclusions appear to have been arrived at abruptly. Therefore, we are at liberty to consider the questions now raised in respect of the provisions in the College Act with reference to the ratio of the earlier as well as the later cases of the Supreme Court of India. Unless there is any direct and apparent conflict which are irreconcilable between the earlier decisions and the later ones of the Supreme Court referred before us, there will be nothing wrong in our considering the issues before us in the light of the views expressed in the later decisions also. We cannot also assume that the learned Judges who decided the later cases could have held something against the earlier judgments of the very same
Court when they were aware of those judgments and considered them too. 26. Now coming to the provisions of the College Act, with which we are concerned, it could be seen that Section 20 of the said Act provides for a first appeal against orders of punishment imposed upon teachers and other persons employed in any private College to such authority or officer as may be prescribed. Rule 14 of the Rules stipulates that the authority to whom an appeal under Section 20 shall lie shall be the Government. By the very nature of relief provided for, the said provision cannot be invoked by the College concerned. The provision of Section 21 provides a further appeal in the nature of a second appeal against an order made in an appeal both at the instance of the teacher or other person employed in any private College or the Educational Agency to the Tribunal. The constitution of the Tribunal is dealt with under Section 38 of the Act under which the Government is empowered to constitute, by notification, as many Tribunals as may be necessary and that each of such Tribunal shall consist of one person who shall be a judicial officer not below the rank of a District Judge with such jurisdiction over such area or in relation to such class of private Colleges as may from time to time be determined by the Government. The Tribunal also has been conferred with the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908. S. 39 provides the period of limitation and also for hearing, conducting enquiry and making such orders as the Tribunal deems just and equitable, including the passing of such interlocutory orders as it deems fit. 27. S. 40 of the Act lays down that if the appellate authority, in an order passed on an appeal under S. 20 of the Act made an order restoring a teacher or other person employed in any private college, no appeal to the Tribunal under S. 21 shall be proceeded with by the Tribunal unless the Educational Agency deposits with the Tribunal all arrears of pay and allowances due to such teacher or other person from the date of his dismissal, removal or reduction in rank or termination otherwise upto the date of deposit and further continues to deposit the pay and allowances due to such teacher or other person until the termination of the proceedings before the Tribunal. The section contemplates the deposit within such time as may be prescribed and Rule 24 stipulates that the deposit contemplated under Section 40(1) shall be made with the Tribunal at the time of appeal or before the transfer of the appeal under Section 22, in cash. S. 40(4) lays down that if the Educational Agency fails to deposit the amount as aforesaid, the Tribunal shall, unless the Educational Agency shows sufficient cause to the contrary, stop all further proceedings and make an order directing the Educational Agency to restore such teacher or other person to service as such. 28. On careful consideration of the scheme of the appellate provisions referred to above contained in the College Act, we are of the view that those provisions suffer the vice pointed out in the cases reported in both the earlier decisions of the Supreme Court as well as the later decisions. There could be no comparison between the provisions with which we are concerned in these cases and those concerned and considered in (A.I.R) 1987 S.C. 311 and (1988-I-LLJ-263). The onerous condition laid down for making the deposit of arrears as a condition precedent for filing and proceeding further with the appeal to the Tribunal, notwithstanding the power given to the Tribunal to provide otherwise in any one case for sufficient cause, renders in not an effective remedy so far as the Educational Agency is concerned. It is all the more so, on account of the further declaration by S. 40(4) itself of the drastic consequences of such non-deposit resulting in not only stoppage of all further proceedings but the passing of an order to restore the teacher or other person to duty. If only the provision for an appeal against the order of punishment passed by the Educational Agency has been made to the Tribunal itself at the first instance,. There will be a possibility of our considering the appellate provisions to a Tribunal to be regulatory. But, unfortunately, the first appeal under S. 20 is not to any judicial Tribunal or a Court and such a provision suffers the vice of interference with the autonomy of the Educational Agency and the Minority Institution in its internal administration as pointed out by the decisions of the Supreme Court. Atleast something could be said in favour of the scheme of appeal provided under Sections 20 to 22 taken together being regulatory if the right given to the Educational Agency to invoke the power under Section 21 read with Section 40 of the Act is not conditioned upon an onerous liability of depositing the entire arrears due before an appeal is filed or proceeded with and no penal stipulation as contained in S. 40(4) of the Act is tagged on to the appellate provisions. As the scheme of the provisions stands, we consider that the appeal to the Tribunal provided for the Educational Agency with such
onerous stipulations are neither effective, nor merely regulatory serving the interest of both sides, but they are in fact and substance merely illusory as for as the Educational Agency is concerned and therefore this application of Sections 20 to 22 of this College Act to minority college will constitute interference with the internal management of the Minority Institutions. Consequently, we are unable to agree with the learned Counsel for the petitioner/appellants that the provisions of Section 24(3) in so far as it excludes the application of Section 20 to 22 or any rules providing for all or any of the matters specified therein or any order made in relation thereto to a minority college could be said to be bad and violative of either Art. 14 or Art. 30(1) of the Constitution of India. The submission made in this regard therefore fails and is rejected. 29. So far as the provisions in Section 19(3) (a) and (b) of the Act regulating the exercise of power of ad-interim suspension by the minority institution are concerned, the majority in All Saints High School v. Government of Andhra Pradesh (supra) after referring to all the earlier decisions on the subject came to the conclusion that it does not constitute an inroad into the rights secured under Art. 30(1) of the Constitution of India. Chandrachud, C.J., in that case held, "the limitation of the period of suspension initially to two months, which can in appropriate case be extended by another two months, partakes of the same character as the provision contained in S. 3(3) (a). In the generality of cases, a domestic enquiry 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 invasion of the right to administer an institution, unless that right carried with in the right to maladminister". (Page 1051 of A.I.R. 1980 S.C.). Unlike the provisions considered by the Supreme Court in the earliest of the cases, the provisions of the College Act do not constitute an impediment in the exercise of powers of ad-interim suspensions by the management. The exercise of power is not conditioned upon a prior approval and thus does not depend upon the permission of the competent authorities. Consequently, the post-decisional safeguard provided in the form of restriction of the period of initial suspension and approval for further extension is intended to prevent abuse or misuse of powers and aimed at averting the agony and suffering of prolonged and indefinite suspension pending finalisation of disciplinary proceedings. This provision, in our opinion, does not suffer the vice of contravention of Art. 30(1) of the Constitution of India. Such regulatory provisions which will serve the interest of both the staff as well as the management and those made in the interest of efficiency of teachers, discipline and fairness in administration will not only help preserve harmony but also will be of paramount importance in good administration. On the other hand, they are merely regulatory in nature and do not constitute interference with the internal administration or impair the rights of the minority institutions under Art. 30(1) of the Constitution of India in any manner. 30. Thus, in our considered opinion, we are of the view that the implementation of the provisions of Section 19(3) (a) and (b) of the Act will not constitute inroad into the fundamental rights secured under Art. 30(1) of the Constitution of India to a minority institution. On the other hand, Section 19(1) and (2) of the Act insisting upon prior permission or approval does really encroach upon the rights of the minority institution to administer the institutions of their choice as repeatedly laid down by almost all the decisions of the Supreme Court. Once we come to the said conclusion that the enforcement of the provisions of Section 19(3) (a) and (b) will not constitute interference with the rights of the minority institutions secured under Art. 30(1) of the Constitution of India, there is no justifiable reason for adopting different norms from those applicable to non-minority institutions. Therefore, we have to necessarily come to the conclusion that the exemption granted in respect of those by means of Section 24(3) in favour of the minority becomes inevitably unwarranted, unjustified, unreasonable as well as arbitrary and discriminatory and void to the extent it excludes the application of Section 19(3) (a) and (b) of the College Act. 31. Consequently, we declare that (a) the words ".... or administered" in Section 2(7) of the Tamil Nadu Private Colleges (Regulation) Act, 1975 is ultra vires of Art. 30(1) of the Constitution of India; and (b) the provisions of Section 24(3) is in so far as it excludes the application of the provisions contained in Section 19(3) (a) and (b) of the Act to a minority College is violative of Art. 14 of the Constitution of India and void to that extent.
32. We also place on record the fact that the learned Government Pleader appearing for the State expressed his inability to take any particular side having regard to the pendency of the appeal by the Government in the School Act matter before the Supreme Court of India. 33. Writ Petition Nos. 9142 and 13285 of 1989 are partly allowed to the extent indicated above. In all other respects the writ petitions shall stand dismissed. 34. In the light of our above decision, we now take up for consideration the other proceedings. W.A. No. 1285 of 1986 has been filed against the order dated 26th September 1986 in W.P. No. 5547 of 1986 wherein the learned single Judge rejected the writ petition on the point of non-maintainability of the writ petition while at the same time reserving the right of the appellant to seek such remedies as are available to them and contest for their rights on facts and law. W.A. No. 1194 of 1987 has been filed against the order of the learned single Judge dated 17th July 1987 in W.P. No. 6909 and 1987 dismissing the writ petition of the appellant on the ground that no writ will lie against a Private Institution. Subsequent to the above decision of the learned Judges which are the subject-matter of appeal before us, the Supreme Court of India had an occasion to consider the very issue and the summit Court declared the law that Educational Institutions receiving aid from the State will be an "Authority" within the meaning of Art. 12 of the Constitution of India and consequently a writ petition can be maintained against such authorities. (vide Vidya Dhar Pande v. Vidyut Girih Siksha Samithi and others (1989-I-LLJ-81) Andimukta S. M. V. S. S. J. M. S. Trust v. V. R. Rudani (1989-II-LLJ-324) and . In the light of the categorical pronouncements made in those decisions, we are obliged to set aside the orders of the learned single Judges holding otherwise. The writ appeals are, therefore, allowed. The orders appealed against are set aside and we direct that the writ petitions be restored to file and disposed of afresh on merits and in accordance with law. 35. W.P. No. 9336 of 1983 has been filed challenging the order dated 27th May 1983 wherein the writ petitioner was dismissed from service. W.P. No. 1709 of 1987 has been filed challenging the order dated 23rd September 1986 passed by the second respondent therein accepting the reasoning of the College Management as the reason for the discharge of the writ petitioner. W.P. No. 5423 of 1988 has been filed challenging the order dated 8th March 1988 wherein the services of the writ petitioner were terminated. In view of our decision in the above cases, Writ Petition Nos. 9336 of 1983, 1709 of 1987 and 5423 of 1988 are directed to be posted before the Writ Court for a learned single Judge to dispose of the same on merits and in accordance with law. W.P. No. 8830 of 1989 has been filed challenging the order dated 12th June 1989 wherein the second respondent invited the attention of the writ petitioner to the provisions of Sections 20 and 24(3) of the College Act with reference to the appeal filed by the writ petitioner before that authority. W.P. No. 8830 of 1989 will stand dismissed since the reasoning contained in the order is quite in accordance with law. But we make it clear that the dismissal of the said writ petition will not preclude the writ petitioner to vindicate his rights and grievances in an appropriate manner in accordance with law. 36. So far as W.P. No. 6910 of 1987 is concerned, the same has been filed for a writ of declaration declaring that Section 24(3) of the College Act is illegal, ultra vires, void and unconstitutional. Except to the extent of excluding the application of S. 19(3) (a) and (b) of the College Act, the challenge to the said section has been repelled by us already. Consequently, the writ petition is allowed only to the limited extent concerning Section 19(3) (a) and (b) and its applicability to the Minority Institution and in all other respects the writ petition shall stand dismissed. The respective parties in the above proceedings will bear their own costs. Per The Hon'ble the Chief Justice 37. I have had the advantage of going through the elaborate and well-reasoned judgment prepared by my learned brother Raju, J., and I agree with him. I would, however, like to add a few words of my own.
38. Exclusion of certain provisions of the Tamil Nadu Private Colleges (Regulation) Act, 1976 (hereinafter referred to as the Act) in their application to minority colleges has been called in question through these petitions and the challenge is based on the violation of Article 14 of the Constitution. In short, the case of the writ petitioners/writ appellants is that the provisions of Section 2(7), 11, 24(3) and 32 of the Act, to the extent they exclude the application of certain provisions of the Act to the minority colleges, are unreasonable, improper, unjustified and violative of Article 14 of the constitution and thus invalid. Before adverting to the challenge to the individual provisions noticed hereinabove, it would be desirable to notice Article 30(1) of the Constitution of India as it is not disputed that the respondent-Colleges are all minority institutions, receiving Government aid, and affiliated to respective Universities. 39. Article 30(1) of the Constitution reads thus : "30. (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice." On a plain reading of clause (1) of Article 30, it implies the right of a minority community, whether based on religion or language, to establish and administer educational institutions of their choice. The right conferred by Article 30(1) is the right to establish and administer educational institutions of their choice by the minorities. The expression "establish" in the context of Article 30(1) implies to bring into existence an educational institution while the expression "administer" means the right to manage and conduct the affairs of the institution. The right to administer would include, in view of the law laid down in St. Xavier's College v. State of Gujarat (supra), the right to choose its managing or governing body; right to choose the teachers; to use its property and assets for the benefit of the institution; select its own medium of instruction and to generally administer the institution in accordance with its choice. Of course, Article 30(1) does not lay down any limitation upon the right of a minority to administer its educational institution, but it is now well settled that this right is not absolute and can be made subject to reasonable regulations for the benefit of the institution as a vehicle of educational character and the standard of such institutions and ensure orderly, efficient and sound administration and to prevent mal-administration, to ensure that its funds are spent for the betterment of education and not for extraneous considerations and to prevent any anti-national activity being carried out in such an institution or any such activity which is against law or morality. No restriction can, however, be imposed by the State on the right of the minority community to establish administer its institutions, but the right to administer, as opined in Reference on the Kerala Educational Bill (AIR) 1958 SC 956 does not and cannot include the right to mal-administer. The minority institution cannot, therefore, under the guise of exclusive right of administration, be permitted to fall below the standard of excellence expected of an educational institution or to complain against regulations which are conducive to the maintenance of those standards. Indeed, no in-roads can be allowed to be made though the regulations or rules to be imposed by the State which may, in any way, impinge upon the right of effective administration of its institution by the minorities, whether based on religion or language and any regulation made by the State in its application to minority institutions has, therefore, to be in conformity with the object sought to be achieved by Art. 30(1) of the Constitution. Where a regulation attempts to restrict the right of administration of an institution established by the minority community, such a regulation would be violative of Art. 30(1) of the Constitution and, thus, invalid. These are some of the general principles which emerge from the judgments delivered in St. Xavier's College v. State of Gujarat (supra) All Saints College v. Government of Andhra Pradesh (supra) D. A. V. College v. State of Punjab (supra) State of Kerala v. Rev. Mother (supra) Azeez v. Union of India (supra) Reference on the Kerala Educational Bill (AIR) 1958 SC 956 and Frank Anthony Employees' Association v. Union of India (supra) and it is on the touch-stone of these principles that we have to consider whether the exclusion of certain provisions of the Act to the minority colleges. Which are the subject-matter of challenge in these writ petitions, are justified or not. That the legislature, which is supposed to know the need of its people, is competent to exclude the provision of a given statute to a class of persons, provided the exclusion does not of fend Article 14 and is otherwise aimed at achieving the objective of the exclusion, and does not suffer from the vice of over or under exclusion, is a proposition which is well-settled need not detain us.
40. In so far as the provisions of Sect. 2(7) are concerned, I entirely agree with brother Raju, J. that in view of the law laid down by this Court in Thirugnanasambandam Primary School v. State of Tamil Nadu (supra) and Azeez v. Union of India (supra) the words "establish and administer" in Article 30(1) have to be read conjunctively and when so read, it gives the right to the minority to administer an educational institution provided it has been established by it. In case the institution has not been established by it, the question of extending the benefit of Article 30(1) of the Constitution to the institution which is only being administered by the authority, is not contemplated. Consequently, the words ".... or administered" in Section 2(7) of the Act are ultra vires Article 30(1) of the Constitution and consequent, we strike down those words. 41. Coming now to Section 11 of the Act. The Act which came into force with effect from 21st November 1975, inter alia provides for the regulation of private colleges in the State of Tamil Nadu. Chapter III of the Act lays down provisions for college committees and their constitution and functions, while Chapter IV provides for terms and conditions of teachers and other persons employed in the private colleges. Section 11 of the Act which has been extracted by Raju, J., provides that every private college, not being a minority college, shall have a college committee which shall include the Principal of the private college and two Senior Professors employed in the private college. According to Mr. Chandru, there is no justification to exempt a minority college from having a college committee consisting of persons including the Principal and two Senior Professors employed in the college. According to Mr. Habibullah Badsha, learned Counsel for the respondent as also the other learned counsel appearing for them there is a sound rationale behind the non-applicability of Section 11 of the Act to minority institutions. It is argued that if a college committee is required to be constituted in the manner prescribed by Section 11 of the Act for the minority institutions also, it would have the effect of destroying not only the autonomy of the minority institution but it would amount to making inroads into the administration of an institution established by the minority. To support the submission, learned counsel referred to the provision contained in Section 14(2) and (3) of the Act which provide that the educational agency shall be bound by anything done by the college committee in the discharge of the functions of the committee under the Act and any decision or action taken by the college committee in respect of any matter over which it has jurisdiction shall be deemed to be the decision or action taken by the educational agency. An educational agency has been defined in Section 2(4). Clause (a) there of deals with educational agency of a minority college and provides : "any minority college means any person who, or body of persons which, has established and is administering or proposes to establish and administer such minority college;" Since the decision taken by the college committee is to be deemed as the decision taken by the educational agency, it implies that it could have the effect of dispossessing the management of its powers of administration of the college by the totally different agency constituted in the name of the college committee, thereby not only eroding but also to a very large extent destroying the autonomy of the body or agency which established the college in the matter of vital functions and administration of the college. It is appropriate to bear in mind that a provision pari materia to Section 11 of the Act also existed in the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 in Section 15. The provision was applicable to both minority as well as other schools. That provision was challenged through W.P. No. 4478 of 1974 along with certain other provisions by a school administered and established by a minority on various grounds, including the impingement of Article 30(1) and an infringement of the right to the minorities to administer the school according to its choice. The challenge was upheld by the Division Bench in the judgment delivered on 17th December 1975. The application of the said provision to minority institutions was found offensive to Article 30(1) of the Constitution. It was in the wake of the judgment of the Division Bench that the present Act came to be enacted by the legislature and it appears that the flaws which were noticed by the Division Bench in the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act, in so far as their application to the minority schools were concerned, were sought to be remedied by making the provisions which had been found offensive thereunder as not applicable to the minority colleges under the Act. Keeping in view the judgment of the Division Bench in W.P. No. 4478 of 1974 which held Section 15 as an invasion on the fundamental right of the educational agency of a minority school to a minister it, the legislature, in our
opinion, in its wisdom, made the provisions of Section 11 of the Act as not applicable to the minority institutions, so as to abide by the verdict of the Court. That judgment held the field at the time when the Act was being enacted and it still holds the field, since the summit Court has not pronounced on it one way or the other so far. The weighty reasons given by the Bench in W.P. No. 4478 of 1974 to declare the application of the provisions of Section 15 as ultra vires Article 30(1) of the Constitution, guided the legislature and while enacting Section 11 of the Act, the infirmities pointed out in W.P. No. 4478 of 1974 were removed. No fault can, therefore, be found with the exclusion of the provisions of Section 11 in so far as the minority colleges are concerned. As a matter of fact, had Section 11 been made applicable to minority colleges, it would have offended Article 30(1) of the Constitution and for the reasons give in W.P. No. 4478 of 1974, the same would have been liable to be struck down. The founder, who has established the minority college and is administering it, cannot be allowed to be replaced by the college committee with the composition as detailed in the section as, to act otherwise would violate the rights enshrined in Article 30(1). We accordingly reject the challenge to Section 11 and hold the said section as intra vires, since the same has been enacted in furtherance of the achievement of the objective in Article 30(1). There is a reasonable classification between the minority and non-minority colleges and the provision of Section 11 has a reasonable nexus to the object sought to be achieved in view of the mandate of Article 30(1) of the Constitution. 42. Section. 24(3) of the Act reads as follows "The provisions of sub-section (2) of Section 18 and of Sections 19 to 22 (both inclusive) of this Chapter or any rule providing for all or any of the matters specified therein or any order made in relation to any such matter shall not apply to a minority College." This section excludes the application of the provisions of sub-station (2) of Section 18 and of Sections 19 to 22 (both inclusive) or any rule therein or any order made in relation to any such matters to a minority college. Does the exclusion of the application of these provisions to the minority institution smack of arbitrariness and unreasonableness or are the provisions necessary to allow full play to Article 30(1) of the Constitution ? 43. Section 18(2) of the Act authorises the college committee to define the standards of conducts to be observed by teachers and other persons employed in the private colleges which standards are not inconsistent with the provisions of the Act and the rules made thereunder. Section 11, in terms, excludes the appointment of a college committee in so far as a minority college is concerned. It, therefore, follows, as of course, that in the absence of a college committee, Section 18(2) of the Act can have no application to minority college. The exclusion of the provisions of Section 18(2) of the Act by Section 24(3) of the Act to a minority college, therefore, is in consonance with the scheme of the Act and in furtherance of the object sought to be achieved by Article 30(1) of the constitution. The exclusion of Section 18(2) in its application to a minority college is, therefore, a necessary corollary of Section 11 and we accordingly reject the challenge to the exclusion of Section 18(2) in its application to the minority colleges. 44. Section 19(1) provides for obtaining prior approval of the competent authority before a teacher or other person employed in a private college is dismissed, removed, or reduced in rank or whose services are otherwise terminated. According to Mr. Chandru, the provisions of Section 19(1) are aimed at protecting the teachers and other staff from arbitrary actions and there is no justification to exclude the application of the section to minority colleges. According to the learned counsel for the respondent, however, the provisions of Section 19(1) make an inroad into the effective administration and management by its own body and the obligation of obtaining prior approval of the competent authority would take away from the minority institutions, the power and right to enforce discipline. It was vehemently argued that the administration of an institution takes within its fold the right of the management to take disciplinary action against the staff and if that right of the minority institution is made subject to receiving any prior approval, it would render the right illusory and non-functional.
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45. Section 19(2) provides that where the proposal to dismiss, remove or reduce in rank or otherwise terminate the appointment of any teacher is communicated to the competent authority, that authority shall, if it is satisfied that there are adequate or reasonable grounds for such proposal, approve the proposal of the management. Power to enforce discipline, including imposition of punishment, is a necessary adjunct of the right to administer a minority college. If the exercise of that power is made contingent upon the grant of approval by the competent authority, it would militate against the right to administer, particularly because the power to accord approval includes the power to deny to accord approval also, vide Section 19(2), and such a situation will be direct interference with the right of the minority to administer the institution established by it. There is, thus, perfect justification for excluding the application of Section 19(1) and (2) of the Act to the minority colleges and the exclusion furthers the objective of Article 30(1) and does not in any way impinge upon Article 14 of the Constitution. 46. Secs. 19(3) (a) and (b) read as follows :"(3) (a) : No teacher or other person employed in any private college shall be placed under suspension, except when an inquiry into the gross misconduct, within the meaning of the Code of Conduct prescribed under sub-section (1) of Section 18, of such teacher or other person 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 or other person shall, without prejudice to the inquiry, be deemed to have been restored as teacher or other employee." In the view that I take, I am fortified by the judgments reported in All Saints College v. Government of Andhra Pradesh (supra) and Frank Anthony Employees' Association v. Union of India (supra). Secs. 19(3)(a) and (b) mandates that no teacher or any other person employed in any private college shall be placed under suspension, except where an enquiry into gross misconduct is pending against such a teacher or other person and prescribes the maximum period during which the order of suspension can remain in force. In other words, it contemplates that the departmental enquiry should be completed expeditiously and as far as possible within two months. The right conferred on the religious and linguistic minorities to administer an educational institution established by them is not an absolute right in abstract. Providing regulatory measures, which do not make inroads into the administration of such institutions and are necessary for ensuring orderly, efficient and sound administration, are permissible. The provisions of Section 19(3)(a) and (b) in terms do not affect the right of the management of the institutions in any way to administer its institution and, on the other hand, they ensure fair deal to the teachers and other employees of the private colleges. Neither by providing the circumstances under which an order of suspension can be made nor by providing the maximum period during which the order of suspension can remain in force, can it be said that the right of the minority to administer its institution has been interfered with. As a matter of fact, it is a healthy provision and ensures to the teachers and other persons employed by such institution fairness in action which, in the long run, is conductive to efficient functioning of the colleges. Unmistakably, there is no right vested in the institution administering a religious or minority educational institution to give a go-bye to the basic rules of fair play while dealing with their employees or otherwise harass them. I am at a loss to understand any logic or reason by which the provisions of Section 19(3)(a) and (b) can be said to make any inroads into the fundamental rights of the minority institution under Article 30(1) of the Constitution, so as to justify their exclusion to them. The provisions of Section 19(3)(a) and (b) do not make any invasion at all into the right to administer an institution unlike the provisions of Section 19(1) and (2) of the Act which require prior permission from an outside body. There is no justification for excluding the application of Section 19(3)(a) and (b) of the Act in so far as the minority institutions are concerned. Consequently, the exclusion of Section 19(3)(a) and (b) of the Act by means of Section 24(3) of the Act in their application to the minority institutions, is unreasonable, unjustified, arbitrary and thus, void. Accordingly, the provisions of Section 24(3) of the Act in so far as they exclude the application of the provisions of Section 19(3)(a) and (b) of the Act to a minority college, are held to be ultra vires Article 14 of
the Constitution and void and are struck down to that extent. 47. I agree with the reasoning and the conclusion arrived at by my learned brother Raju, J. in so far as the provisions of Sections 20 to 22 of the Act are concerned in their application to a minority college and have nothing to add. Their exclusion is perfectly justified, as it furthers the objective of Article 30(1) of the Constitution without in any way impinging upon Article 14 and is necessary to prevent any interference with the right of the minority to administer the institution established by it and the challenge to their exclusion to such institutions has no merit.
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Association of University ... Vs State of Tamil Nadu and Anr. On 7 September, 1990 PDF

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Association of University ... Vs State of Tamil Nadu and Anr. On 7 September, 1990 PDF

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Association Of University ... vs State Of Tamil Nadu And Anr.

Indian Kanoon - http://indiankanoon.org/doc/958856/

Indian Kanoon - http://indiankanoon.org/doc/958856/

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