Bhowanipur Education Society College University of Calcutta vs Bhowanipur Education Society College

Susanta Chatterjee, J.—This matter is taken up along with another writ petition filed by the Bhowanipur Gujarati Education Society and others against the University of Calcutta and others, as parties. In both the matters applications for vacating the orders have been filed by the contesting Respondents. Affidavits have also been filed to oppose them. Both the writ petitions along with the applications for vacating the interim orders are taken up together for final disposal of the case By way of effective adjudication.

It appears from the writ application filed by the Bhowanipur Education Society College and Dr. Nalin Patel as Principal of the College and the Bhowanipur Gujarati Education Society praying inter alia for insurance of an appropriate writ of mandamus commanding the Respondents, viz. the University of Calcutta, State of West Bengal, West Bengal Council of Higher Secondary Education and their principal officers praying inter alia for issuance of an appropriate writ commanding them to rescind, recall and cancel the letter being No. C/469/164-Staff dated February 9, 1989, issued by and/or under the signature of the Inspector of Colleges and the letter being No. 2269/CGA dated March 7, 1989, issued by and for the Director of Public Instructions, Government of West Bengal and to command the Respondents, to sanction of the arrear salary of the Principal of the Bhowanipur Education Society College and other consequential reliefs on the ground that the Respondents have acted without any and/or in excess of jurisdiction inasmuch as those two impugned letters are violative of Articles 29 and 30 of the Constitution of India and as such, neither of the same is binding upon the Petitioners nor the same can be enforced against the Petitioners. It is alleged that the said letters have been issued for collateral purposes with oblique motive and oblique object by not sanctioning the salary of the Principal of the Bhowanipur Education Society College.

It is, however, stated in details that the Bhowanipur Gujarati Education Society is a society registered under the West Bengal Societies'' Registration Act, 1961 and it is a society, inter alia, with the object to impart education by establishment of educational institution specially in Gujarati language among: the students of the Gujarati community and is a linguistic minority community. It is further slated that the Bhowanipur Education Society College is a wing of the said Society and is therefore entitled to enjoy all the protections and reliefs as a linguistic minority community is enjoying privileges under the Constitution of India. It is placed on record that at all material times and still the Governing Body of the said Society has been constituted in terms of statute 100(1) of the Calcutta University Act, 1966, preserving the rights of the Society under the said Act which was always approved by the University of Calcutta. Incidentally, it has also been placed on record that the Petitioners have to file a writ application to preserve the privileges obtained by the Petitioners'' Society under the Constitution run by the Governing Body of linguistic and religious minority community and the Civil Rule No. 6046(W) of 1979 has since been made absolute on June 17, 1988 and the Respondents have been restrained permanently from disturbing the management of the College in any manner whatsoever.

The Petitioner No. 2, Dr. N. Patal was confirmed as a Principal of the Petitioner No. 1 College with effect from June 1966 by the said Society following procedure of the meeting of the Governing Body as also the, Central Committees and the age of superannuation of the Petitioner No. 2 65 with the provision of extension for further five years. As the Petitioner No. 2 was to reach his superannuation of 65 years in May 1988 and considering the service rendered by him as the Principal of the said College and finding it further that he is of sound health and alert mind and efficient in discharging duties, the Board of Trustees of the Bhowanipur Gujarati Education Society and the Central Committee of the said Education Society resolved a meeting held on May 3, 1988, extending the service of the Petitioner as the Principal until he retires at the age of 70 years which was allegedly ratified by the Governing Body of the Bhowanipur. Education Society College in the meeting held on June 18, 1988.

The Petitioner has specially stated that the West Bengal College Service Commission Act, 1978, which came into effect in February 1979 with the object to provide for the constitution of a College Service Commission in West Bengal and for matters connected therewith. It has been specially provided that the said Act was not applied to any college not receiving any aid from the State Government or any college established and administered by a minority whether religion or language. It is claimed that in the said circumstances, the said Act and/or its provisions are not applicable either to the Bhowanipur Gujarati Education Society and/or the Bhowanipur Education Society College in any manner i.e. of its Principal and other teaching or non-teaching staff as the same is administered for a minority community based on language and furthermore neither the said College nor the said Society received any grant from the State Government or the University of Calcutta.

It is the specific allegations of the Petitioners that in spite of such background the impugned letter dated February 9, 1989, was issued under the signature of the Inspector of Colleges to the Deputy Director of Public Instruction, Government of West Bengal, who asserts that the University does not recognise the service of the Principals or teachers of affiliated colleges beyond the age of 65 years. The said letter was forwarded to the Secretary, Bhaowanipur Education Society College by the Director of Public Instruction, Government of West Bengal, by his letter dated March 7, 1989, with a request not to include the name of Dr. N. Patel in the claims for. April to June, 1989. The said letter contains further that claims for grants under the signature of Dr. N. Patel as Principal of the College will not be entertained in future. The, Petitioners have challenged the aforesaid two letters dated March 7, 1989 and February 1989 as wrongful, illegal, arbitrary, mala fide and without jurisdiction.

The other writ petitions have been filed by the Bhowanipur Gujarati Education Society along with Bhowanipur Education Society College and Dr. Nalin Patel is claiming to be Principal of the College. They have prayed inter alia for an issuance of a writ of mandamus commanding the Respondents, viz. the University of Calcutta. State of West Bengal, West Bengal Council of Higher Education Society and their office bearers, to forbid and censor the Inspector of Colleges of the University of Calcutta and not to interfere in any manner whatsoever in the matter of the Selection Committee meeting of the Bhowanipur Education Society College and to restrain all the Respondents and their servants and agents from obstructing and/or disturbing and/or interfering with the running and/or management and/or the administration of the Bhowanipur Gujarati Education Society and the Bhowanipur Education Society College and to direct the Respondents to forthwith fix a venue and schedule of meeting for placement/promotion of the respective subject teachers of the Bhowanipur Education Society College to be done and conducted by Dr. Nalin Patel, Principal of the said College, with special experts accordingly on the grounds that the impugned action of the Inspector of Colleges, University of Calcutta, in the matter of not allowing the Principal of Bhowanipur Education Society College to attend the meeting of the Selection Committee on February 27, 1989, is wrongful, illegal, arbitrary, mala fide and violative of Articles 29 and 30 of the Constitution of India. According to the Petitioners, the Respondents and in particular the Inspector of Colleges, University of Calcutta, have acted with any and/or in excess of jurisdiction by interfering with the meeting of the Selection Committee held on February 27, 1989.

In both the applications, the Petitioners and the Respondents are same and there arc similar averments as to the claim of privileges available to the institutions controlled and managed by the minority community under Articles 29 and 30 of the Constitution of India.

Both the said writ petitions are strongly contested by the University Authority and the: State of West Bengal by filing affidavits. It appears from the affidavits filed by the University Authority that Section 50 of the Calcutta University Act, 1979, empowers the University of Calcutta to make statutes and to provide for, inter alia, the terms and conditions of the service and minimum emoluments for the posts of Principals, teachers and such other employees as the University may deem fit, of all affiliated colleges, other than Government colleges.

In exercise of powers conferred by Sub-section (2) of Section 59 of the Calcutta University Act, 1979, the first Vice-Chancellor of the Calcutta University caused, with the approval of the Chancellor and with the associates of the Committee nominated by the Chancellor, the Calcutta University First Statute, 1969, to be amended and Statute under 104 of the said amendment clearly indicates the retiring age of teachers in a college. It is provided that a whole time teacher of a college shall retire from service with effect from the afternoon of the last day of month in which he attains the age of superannuation, i.e. 60 years and provided that such teachers may be granted re-employment officially for a period of two years and subsequently for a period of one year or less subject to the terms and conditions as stipulated in orders issued by the State Government from time to time and in no case such re-employment shall be given if the teacher concerned have given 65 years of age. Similarly, a part-time teacher in a college shall retire at the end of the academic year in which he attains the age of 65.

In the instant case, Dr. N. Patel being the Principal of Bhowanipur Education Society College is in pre-1973 University Grant Commission Scale of Pay. According to the Statute of 104 he should have retired at the end of the academic year in which he attains the age of superannuation. Statute 104(2) empowers the Governing Body of the College to grant the extension of service beyond the age of 62 years subject to the condition that no extension shall be granted for more than two years at a time and not beyond the date on which he completed the age of 65 years. It is specifically placed on record that the superannuation is a condition of service and Calcutta University had and has jurisdiction and/or authority and/or power to lay down the retirement of the age of the teachers including Principals of the affiliated Colleges. The University of Calcutta has the jurisdiction and power to frame rules and regulations regulating the conditions of teachers of the affiliated colleges in order to secure the tenure of service and to improve the excellence and efficiency of the institutions.

They have laid much emphasis upon the fact that an affiliation of minority institutions to the University is intended to secure the growth and excellence of their children and other students in the academic field. The affiliation mainly pertains to academic and educational character of the institution. Therefore, measures, which regulate courses of study, the qualifications of appointment of teachers, the conditions of employment of teachers, the health and hygiene of students, facilities of libraries and laboratories arc all comprised in matters germane to affiliation of minority institution. These regulatory measures for affiliation are for uniformity, efficiency and excellence in educational courses and do not violate any fundamental rights or the minority institutions under Article 30. Other allegations of the writ Petitioners have, however, been controverted.

The State Respondents have also filed affidavits by filing affidavits-in-opposition. According to them, the Bhowanipur Education Society College is a Government aided College inasmuch as the Government pays salaries and allowances of all teachers of the said College. The said College has come under West Bengal Colleges (Payment of Salaries) Act, 1978, by adopting a special resolution agreeing to abide by the provisions of the said Act as per Section 1(4) second provision of the said Act with effect from April 1978. It is claimed as such that it is obligatory on the part of the College to fulfil the conditions laid down in the said Act since then grants have been released to the College by the Government for making by full salary to its teaching and non-teaching employees. It is pointed out that Dr. N. Patel was receiving from the Government D.A. and other admissible allowances (such as house rent allowance and medical allowance) till he completed the age of 65 years. As per Section 11 of the said Act, the State Government may from time to time give such directions not inconsistent with the provisions of this Act to a college as may be necessary for carrying out the purpose of the Act.

The College adopted a resolution on June 25, 1982, proceeding on the basis that age of retirement of Dr. Patel was 62 and extended the same upto 65. The College wrongfully alleged that the age of retirement of Dr. Patel was 65 years and it can be extended upto 70 years. After the attaining of age of 65 years, Dr. N. Patel is not entitled to be repaid any salary from the Government as the Principal of the said College. The College having whatever status received and enjoyed Government grants as per the provisions of the Act of 1978 and the College has of its own accepted the said position.

It is also placed on record that under the Government Order No. 1662-Edn.(CS) dated November 21, 1977, issued long before the pay packet came into operation, the Government has laid down valid conditions regarding admissibility of the Government financial assistance to colleges established and administered by religious and linguistic minorities as per para. 2(iv) of the said Government Order the scales of pay of the teachers and other conditions of such college teachers, such as age of superannuation etc. should be the same as prescribed by the State Government from time to time.

It is also alleged that the age of retirement of all teachers and non-Government colleges including trust and minority colleges are governed by Statute 104(1) of the Calcutta University First Statute and as the full liability for making payment of salary to Dr. N. Patel as Principal was with the State Government and as there was no provision in any law, rules, statues or Government orders for continuing the service of teachers beyond 65 years the Petitioners cannot ask for reliefs in the manner as prayed in both the writ petitions.

Having heard the learned Lawyers of the respective parties and going through the pleadings at length, it appears that there is no dispute as to the fact that the Bhowanipur Gujarati Education Society and/or Bhowanipur Education Society College are entitled to the special protection as provided under Articles 29 and 30 of the Constitution of India. There is no problem with the rights as available and the duties to be discharged by the institutions protected under Articles 29 and 30 of the Constitution of India. A short question is raised in both the writ petitions as to whether the University Authority and/or the State Respondents can regulate the services of teaching and non-teaching staff and particularly to fix the age of superannuation. To be more precise the present problem as raised in both the writ petitions is to the fact as to whether the Society and/or College authority have any right to extend the age of Dr. Nalin Patel working as Principal of the College beyond the age of 65 years.

The attention of the Court has been drawn by the learned Lawyers appearing for the Petitioners that the internal management and control of the staff of the minority institutions protected under Articles 29 and 30 of the Constitution of India cannot be effectively interfered with and/or disturbed by the University Authority and/or the State Authorities. It is their affairs to extend the age of the Principal of the College as they have found fit and proper. The impugned letters as indicated above cannot be issued and those are colourable exercise of power and the Respondent should not be permitted to question the extension of the age of Dr. N. Patel from 65 years to 70 years. All the salaries and allowances payable to him must be released and the Respondents should be restrained from interfering with the acts done and/or caused to have been done by Dr. N. Patel as Principal of Bhowanipur Education Society College in all matters including the Selection Committee meeting held on February 27, 1989.

The attention of the Court has been drawn to a case in The Gandhi Faiz-E-Am College, Shahjahanpur Vs. University of Agra and Another, . It has been discussed in details there as to the scope of right of administration of minority institutions and constitutes any infringement of right thereof.

The attention of the Court has also been drawn to another case, Frank Anthony Public School Employees'' Association Vs. Union of India (UOI) and Others, The Supreme Court has clearly found that-the right guaranteed to religious and linguistic minorities by Article 30(1) is twofold, to establish and administer educational institutions of their choice. The key to the Article lies in the words of their own choice. These words indicate that the extent of the right is to be determined, not with reference of any concept State necessity and general social interest but with reference to the educational institutions themselves, i.e. with reference to the goal of making the institutions effective vehicles of education for the minority community or other persons who resort to them. It follows that regulatory measures which are designed towards the achievement of the goal of making the minority educational institutions the effective instruments for imparting education cannot be considered to impinge upon the right guaranteed by Article 30(1) of the Constitution. The question in each case is whether the particular measure, in the ultimate analysis, does not achieve such goal, without nullifying any part of the management in specific measures.

This decision has heavily been relied the learned lawyers of both sides. Mr. Joyanta Mitra, learned Counsel appearing for the Petitioners has tried to interpret that this decision does not impair the University Authority to take away rights guaranteed to the religious and linguistic minorities by Article 30 of the Constitution of India. The School authorities, if they have found just and right are entitled to extend the age of a teaching staff finding him physically fit and mentally alert and to converse benefit upon him and such benefits are correlated with the benefit of the institutions whose management and control cannot be interfered with.

Mr. Prodosh Mallick, the learned Counsel appearing for the University has, however, submitted that by looking Article 30 of the Constitution of India the regulatory measures which are designed towards the achievement of the object cannot be lost sight of. The Calcutta University First Statutes, 1979, has conferred rights upon the University Authority that in the matter of superannuation the University Authority can regulate.

Considering the submissions made on behalf of the sides and looking to the decision in Frank Authony Public School Employees Association v. Union of India (Supra) this Court finds the expression of the Supreme Court is to the tune that the excellence of the instructions provided by an institution would depend tenures directly on the excellence of the teaching staffs and in term that would depend on the quality and contentment of the teachers. Conditions of service pertaining to minimum qualifications of teachers their salaries, allowances and other conditions of service which ensured security, contentment of the teachers. Conditions of service pertaining to minimum qualifications of teachers, their salaries, allowances and other conditions of service which ensured security, contentment and decent living standard of teachers which would consequently enable them to render better service to the institution and the pupils cannot be surely said to be violative of the fundamental rights guaranteed by Article 30(1) of the Constitution. The management of a minority educational institution cannot be permitted under the guise of the fundamental right guaranteed by Article 30(1) of the Constitution, to oppress or exploit its employees any more than any other private employees. Oppression or exploitation of the teaching staff of a educational institution is bound to lead inevitably to discontent and deterioration of the standard of instructions imparted in the institution affecting adversely the object of making the institution as effective vehicle of education for the minority community or other persons who resort to it. The management of minority institutions cannot complain of invasion of the fundamental right to administer the institutions when he denies the members of its staff who prayed to achieve the very object of Article 30(1) which is to make the institution an effective vehicle of education.

While the Supreme Court specifically permitted there can be regulatory measure to provide conditions of service, pertaining to minimum qualifications of teachers, their salaries, allowances and other conditions of service ensuring security, it is clearly intended that there must be a particular stipulated period of superannuation. Within the said scope of regulatory measure, chap. VIII of Calcutta University First Statutes, 1979, may be looked into.

Chapter VIII provides appointment of teachers and Principals of affiliated colleges, their hours of work, minimum emoluments, outside activities and supplementary employment etc. The Statute 104 gives details with the subject of retirement. For better appreciation Statute 104 is quoted herein below:

104 : (1) A whole-time teacher of a college enjoying University Grants Commission scale of pay introduced since the 1st April, 1973, shall retire from service with effect from the afternoon of the last day of the month is which he attains the age of superannuation, i.e., 60 years:

Provided that such teacher may be granted re-employment initially for a period of two years and subsequently for a period of one year Or less subject to the terms and conditions as stipulated in orders issued by the State Government from time to time. In no case, such re-employment shall be given if the teacher concerned has attained 65 years of age;

(2) A teacher who is in pre-1973 University Grants Commission scale of pay shall retire at the end of the academic year in which he attains the age of 62, provided that the Governing Body may grant extension of service to such teacher, subject to the condition that no extension, shall be granted for more than two years at a time and not beyond the date on which he completes the age of 65 years;

(3) A part-time teacher in a college shall retire at the end of the academic year in which he attains the age of 65.

It is thus clearly provided that a teacher who is in pre 1973 University Grants Commission scale of pay shall retire at the end of the academic year in which he attains the age of 62, provided that the Governing Body may grant the extension of service to such teachers subject to the conditions that no extension shall be granted for more than two years at a time and not beyond the date on which he completes the age of 60.

The case of Dr. N. Patel comes certainly within the purview of this provision in the event as a regulatory measure. This aspect of the law can be extended to denote the conditions of the teaching of an affiliated college. The attention of the Court has also been drawn to All Bihar Christian Schools Association and Another Vs. State of Bihar and Others, . It has been found that minority institutions may be for 3 classes, (i) educational institution which neither seeks aid an or recognition from the State, (ii) institution that seeks aid from the State and (Hi) educational institution seeks recognition but not aid. Minority institutions fall in the first category are free to administer their institution in the manner either like and the State has no power under the Constitution to place any restriction on the right of administration. But an unaided minority association is not immured from operation of the general law of land such as Contract Law, takes measures economic regulations, social legislation, Labour and Industrial laws and similar other measures which intended to meet the need of the Society. But institution falling within second and third categories are subject to regulatory provisions which the State may impose. The Supreme Court further found that it is open to the State to provide conditions for granting recognition or disbursement of aid to the minority institutions. These conditions may require a minority institution to follow prescribed syllabus for examination, courses or study. The State has right to provide regulatory provisions for ensuring educational excellence, conditions of employment of teacher ensuring health, hygiene and discipline in allied matters. The object of purpose of prescribing regulations is to ensure that minority institutions do not fall below the standard of excellence except of an educational institution that they do not fall outside the main stream of the nation. But the State cannot under the guise oh the State power prescribed onerous conditions compelling the minority institutions to surrender their rights of administration to the Government. The State has to direct a balance and statutory provision should serve both the objects and should withstand test of Article 30(1), the principles have to be borne in mind in considering the questions of validity of statutory provisions relating to minority educational institutions.

Read being had to the materials on record and principles of law as observed by the Supreme Court, as indicated above, this Court finds that the Bhowanipur Education Society College is an affiliated college under the Calcutta University and it is receiving grants, for the payment of salary and allowance to the teaching and non-teaching staff. The State Respondents and the University Authority have got the rights to provide conditions for granting recognition or disbursing aid and both the authorities have the right to provide regulatory provisions for ensuring educational excellence and conditions of employment of teachers. The fixation of age of superannuation is one of the conditions of the employment. It is not open to the minority institutions to curtail the age of retirement or to extend the age of retirement which is beyond the scope of the Statute. The decision of the minority institution is subject to the regulatory provisions as provided in the Calcutta University First Statutes, 1979. The State had laid down the conditions while the payment of the salary of the teachers has been provided and it is clearly laid down that under no circumstances the age of superannuation can be extended beyond 65 years. Under such circumstances, the Bhowanipur Education Society College and/or Bhowanipur Gujarati Education Society have no power to extend the age of Dr. Nalin Patel from the age of 65 to 70 years. The stand taken by the University Authority and/or the State Respondents not to recognise the functioning of Dr. N. Patel beyond the age of 65 years are found to be justified in law. The age of Dr. Nalin Patel and the date of his appointment are not disputed. Admittedly, he has crossed the age of 65 years and he is not entitled to function as Principal thereof nor he is entitled to receive any salary consequently. Both the writ petitions appear to be thoroughly misconceived. The writ Petitioners are not entitled to any relief in the manner as prayed for.

For the foregoing reasons, both the writ petitions are dismissed and all interim orders are vacated. The applications for vacating interim orders are disposed of in the light of discussions as made above. There will be no order as to costs.

Stay of the operation of this order is granted for two weeks from date.