Autonomous St. Joseph College Society vs The Director of Collegiate Education and Another

Padmanabhan, J.—The autonomous St. Joseph''s College, Tiruchirappalli, is the Petitioner. The prayer in the writ petition is to issue a writ of

certiorarified mandamus to quash G.O. Ms. No. 675 Education, dated 26th April, 1979 issued by the second Respondents, Government of Tamil

Nadu in so far as the Petitioner college is concerned and to issue a writ of mandamus to the Respondents compelling them to approve all the

appointments made by the Petitioner in its college.

It is not disputed that the college is a minority institution which is entitled to the protection of Article 30(1) of the Constitution of India. G.O. Ms.

No. 675 Education dated 26th April, 1979 has teen issued by the Government providing for a detailed scheme for the utilisation of surplus

teaching staff in colleges (Government and Aided) consequent on the shedding of Pre University Course (P.U.C.) from 1979-80. It is well-known

that with effect from 1979-80 the P.U.C. classes were abolished and wers substituted by Plus Two course started in Higher Secondary Schools.

Naturally, therefore, many teachers from various colleges, both Government and Aided, got retrenched and in order to enable the utilisation of

such retrenched teaching staff, the Government issued G. O. Ms. No. 675 Education, dated 26th April 1979. It is sufficient to refer two

paragraphs from the said Government Order. Sub-paragraph 5 of paragraph 2 states that the Director of Collegiate Education is also authorised to

shift in consultation with the aided Colleges concerned where necessary surplus staff from one aided College to another aided college or from

aided College to Government colleges. Paragraph 4 of the Government Order reads as follows:

The staff rendered surplus after redeployment as detailed above will be treated as supernemerary and the Director of Collegiate Education will

maintain a list of such persons in respect of each college. These persons will be gradually absorbed against vacancies caused on account of

retirement death, resignation, etc., without getting the prior approval of the Government until further orders.

In other words, the effect of the Government Order is that after the date of the Government Order all the aided colleges should fill the vacancies

caused on account of retirement, death, resignation, etc. of the teaching staff only from the staff members who had been retrenched from various

colleges, Government and Aided, by reason of the shedding of P.U.C. Classes and the colleges are not allowed to appoint any new staff member

without getting the prior approval of the Government until further orders.

Mr. T. Martin, learned Counsel for the Petitioner states that the Petitioner college is a minority educational institution, which is entitled to the

protection of Article 30 of the Constitution of India. If that be so, no restriction can be placed on the power of the college to appoint its own

teaching staff. All that the Government can regulate is to see that these minority educational institutions keep to the standards prescribed by the

University and appoint only qualified teachers. So long as the minority educational institutions do not deviate from the standards prescribed by the

University and appoint staff who possess the prescribed educational qualifications, then the Government cannot interfere in any manner with the

appointment of teaching staff in such minority educational institutions without violating Article 30(1) of the Constitution of India. According to Mr.

T. Martin, the substance of the Government Order was put in the form of Section 26 in the Tamil Nadu Recognised Private Schools Regulation

Act, 1973. The validity of the said Act came up for consideration before a Bench of this Court and this Court struck down the said provisions

since violated Article 30(1) of the Constitution of India, in so far as the right of the minority educational institutions are concerned. In the

circumstances Mr. T. Martin argues that the Government Order has to be quashed, so far as this Petitioner/college is concerned.

Notwithstanding Article 30(1) of the Constitution of India and various other citations made by Mr. T. Martin, Mr. Sadanand, learned

Government Advocate makes a valid effort to sustain the Government Order on the ground that by virtue of the shedding of the P.U.C. Classes

with effect from 1979-80 number of members of the teaching staff became unemployed and all that the Government have done by the impugned

Government Orders is only to see that the private colleges recruit the said surplus staff to fill other vacancies caused by retirement, death or

resignation from the Pool.

The question, is, whether the contentions urged by the learned Counsel for the Petitioner is correct.

Article 30(1) of the Constitution of India reads thus:

Right of minorities to establish educational institutions: Clause (1) implies the right to a minority community to impart instruction to the children of its

own community in institutions run by it and in its own language and if such right is infringed, an institution run by the Community may seek relief for

violation of the fundamental light. It confers the right on a minority to establish and administer the educational institution of their choice.

The applicability of Article 30(1) in relation to the Tamil Nadu Recognised Private Schools Regulation Act, 1973, came up for consideration

before this Court in Writ Petition No. 44 of 1974 and batch of cases.

Section 26 of the said Act reads as follows:

Absorption of teachers or other persons on retrenchment.-

Where any retrenchment of any teacher or other person employed in any private school is rendered necessary consequent on any order of the

Government relating to education or course of instruction or to any other matter, it shall be competent for the Government or the school committee

of any private school to appoint such teacher or other person in any school or institution maintained by the Government or in such private school,

as the case may be.

In these writ petition and other connected cases, apart from Section 26, some of the other Sections were also attacked or the ground that they

violated the right of minority institution to establish and administer the educational institutions of their choice under Article 30(1). Dealing with

Section 26 of the Act, the Division Bench has observed thus:

We are of opinion that Sub-section (2) of Section 21, Sections 22 to 25 as also Rules 17 and 18 are in abrogation of the right to administer a

minority school and violate Article 30(1). So also Section 26, we think, offends Article 30(1) which provides for absorption by a private school of

a teacher or other employee retrenched elsewhere.

As rightly pointed out by Mr. Martin, the impugned Government Order practically embodies the same provision that was struck down by this,

Court, viz., Section 26 of the Tamil Nadu Recognised Private Schools regulation Act, 1973.

Mr. Martin has referred me to certain decisions and though they are not strictly necessary for the purpose of deciding the contrery, it is but fair

that I should refer to them. In State of Kerala v. Cor. Management of Schools (1970) K.L.T. 232 the scope of the minority communities under

Article 30 of the Constitution of India to establish and administer educational institution arise for consideration. A Government Order issued under

the Kerela Education Act, 1950 provided that whenever a vacancy occurred in an aided school the Managers should follow the directions issued

by the Government from time to time for ascertaining the availability of qualified hands for appointment as teachers. As per the existing orders the

Managers had to advertise vacancies of teachers in the prescribed form and in the approved dailies in two consecutive issues. Section 11 of the

Kerala Education Act, 1958 stated that subject to the rules and conditions laid down by the Government, teachers of aided schools should be

appointed by the Managers of such schools from among persons who possessed the qualifications prescribed u/s 10. The validity of these

provisions was challenged before the Kerala High Court. The Bench of the Kerala High Court speaking through Madhvan Nair J., observed as

follows:

That freedom (fundamental freedom) is as pointed out in In re. Kerala Education Bill AIR 1958 S.C. 956 979 to establish and administer

educational institutions that may conserve the community�s religion, language or culture and also give a good general education to their children.

To serve such double purpose, the management must have considerable freedom of choice of teachers to be employed in their schools. If the

management is compelled to appoint qualified teachers, irrespective of their express aversion for the religion and culture of the community that has

established the school, the right guaranteed by Article 30(1) will be but a ""teasing illusion"", a promise of unreality.

In Rt. Rev. Dr. Aldo Maria Patroni, S.J. and Another Vs. The Assistant Educational Officer and Others, a learned Judge of the Kerala High

Court while referring to Rules 44 and 45 of Chapter XIV-A of the Kerala Education Rules framed under the Kerala Education Act has observed

as follows:

These Rules 44 and 45 are not rules fixing the qualification for being appointed as the Headmaster. No doubt, even if the institution is protected

under Article 50, the State can make laws regulating the appointment of teachers in the interests of the school. But the regulation must be limited to

the qualifications that a teacher must possess and to the experience which he should have to discharge the duties in the school. Rules 44 and 45 do

not relate to these two requirements.

After referring to various decisions, the learned Judge again observes as follows:

In the latter two cases the question directly arose whether the minority community had the freedom to appoint a Headmaster of a School or

Principal of a college and in dealing with that question it has been recognised by this Court and the Supreme Court that the position of a

Headmaster or a principal is a vital matter from the point of view of administration of the institution. Provisions which in any way interfere with that

freedom are stated to be volatile of Article 30 of the Constitution. The management has the freedom to choose the person competent and qualified

and to appoint him or her in the institution.

In The Ahmedabad St. Xavier''s College Society and Another Vs. State of Gujarat and Another, , the Supreme Court has observed as

follows:

Another conclusion which follows from what has been discussed above is the a law which interferes with a minority''s choice of qualified teacher or

its disciplinary control over teacher and other members of the staff of the institution is void as being volatile of Article 30(1). It is, of course

permissible for the State and its educational authorities to prescribe the qualifications of teachers, but once the teachers possessing the requisite

qualifications are selected by the minorities for their educational institutions, the State would have no right to vote the selection of those teachers.

The selection and appointment of teachers for an educational institution is one of the essential ingredients of the right to manage an educational

institution and the minorities can plainly be not denied such right of selection and appointment without infringing Article 30(1).

In fact, in the same case, the Supreme Court has approved the decision of the Kerala High Court, reported in State of Kerala v. Cor.

Management of schools (1970) K.L.T. 232.

The next case to be referred is the one reported in Reverend Br. A. Thomas S.H.J. General Manager of the Society of the Brothers of the

Sacred Heart of Jesus Vs. The Deputy Inspector of Schools and Others, There it was attempted to argue on behalf of the educational institution

that since the Government gave aid to minority educational institutions it could insist on teaching staff of their choice being appointed. The argument

was rejected by Veeraswami C.J. speaking for the Bench. The learned Chief Justice observed thus:

The learned Government Pleader strenuously contends that, though the Petitioner-institution is a protected institution, in as much as it received aid

from the Government, and as all the teachers whether they are in protected or unprotected institutions are paid by the Government through the aid,

the Government have a right, in order to do social justice in as much as it has to provide employment for the higher grade teachers, to tell the

institution that it should not employ a secondary grade teacher in higher grade vacancies. We are unable to accept this contention as fair asit relates

to protected institutions. The Ahmedabad St. Xavier''s College Society and Another Vs. State of Gujarat and Another, , as well as earlier

decisions go a long a way to recognise the freedom of management on one part of denominational institutions and the management includes also

appointment of teachers of their choice. It is not necessary to say more than that in the case. Here it happens to be a case of employment of more

qualified teacher in the interests of higher standards of education and the Education Department cannot insist that should not be done by the

institution. This has nothing to do with the aid given. The aid given by the Government does not clothe the Government with any right of the type

they have claimed to interfere with the freedom of management of the institution to employ teachers of their choice, who have a higher qualification

than that prescribed by the Department.

From these decisions it is clear, if I may say so with respect that they have given the correct answer to the argument of Mr. M.A. Sadanand

that teaching staff got retrenched on account of the abolition of P.U.C classes and social justice requires that in order that those unemployed

teacher may be employed, such a restriction can be placed on the right of the minority institutions to appoint teachers of their choice.

The same principles have been affirmed again in All Saints High School, Hyderabad and Others Vs. Government of Andhra Pradesh and

Others, .

It is not the case here that the college is not appointing qualified teachers or not keeping to the standards prescribed by the University. In the

circumstances I hold that the impugned Government Order shall not apply to the Petitioner college. A writ as prayed for will issue. The writ petition

is allowed. No costs.