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Judgment
Dhirendra Mishra, J.—The above writ petitions are being disposed of by this common order as the question of law involved in both these petitions is common. However, for the purpose of this order facts, as mentioned in W.P. (C) No. 831/08 are being referred.
The petitioner college, which is an unaided college and recognized as minority institution by the State Minority Commission, is affiliated to respondent No. 2-University. Respondent No. 2-University is established under the provisions of M.P. Vishwa Vidhyalay Adhiniyam, 1973 (for short ''the Adhiniyam'') and it is also a recognized University under the University Grants Commission. Respondent No. 2 exercising the powers under the Adhiniyam has framed Statute-28, College Code. Case of the petitioner is that provisions of the Statute-28, which are inconsistent with the rights created in favour of the minority institutions, cannot be enforced as against the minority institutions.
Respondent No. 2-University in the purported exercise of powers conferred under Statute-28 directed the petitioner college to furnish details of meetings of the governing body including the number of meetings in which nominees of the respondent No. 2-University participated. It was further directed that provisions of Statute-28 are to be complied with by 9-10-2006 and details of appointment of the Principal and teachers were sought along with details of their salaries. By another internal communication dated 19-6-2007 (Annexure P-8) mentioning therein that if the teachers have not been appointed in accordance with the provisions of Statute-28, in such affiliated colleges admissions for the academic year 2007-08 have been prohibited and accordingly, the petitioner college was directed not to give admissions to the students in the first year of B.B.A. course. The petitioner college vide Annexure P-11 was further directed to make appointments in accordance with the Statute-28. The above directions were further reiterated vide Annexures P-12 and P-13 and the petitioner college was informed that in view of the ban imposed on the college for granting admissions to the students in the first year of B.B.A. course, the nomination forms of the students, who have been admitted, shall not be accepted and they shall not be allowed to appear in the examination. Respondent No. 2-University further directed the petitioner college not to forward examination forms of the students admitted in the college, as the University had imposed ban on admission. Respondent No. 2-University vide notice dated 4-1 -2008 (Annexure P-19) called upon the petitioner that despite ban on admission to first year of B.B .A. course in the college, the petitioner college violating the orders of the University, gave admissions to the students to the first year and also permitted them to fill-in the examination forms, therefore, why legal action should not be taken against it and three days'' time was allowed to reply. However, without waiting for reply, the respondent No. 2-University cancelled the examination of the students of the petitioner college who appeared in the English paper of first semester of B.A. course on the same day and they were further restrained from appearing in future examination vide Annexure P-20.
After receiving the above communication, the petitioner college vide letter dated 8-1-2008 (Annexure P-21) informed the respondent No. 2-University that the petitioner institute is prepared to withdraw W.P. (C) No. 4096/07 filed against the University and also to follow the Statute No. 28 and other rules and regulations. They also tendered apology vide their letter dated 9-1-2008 (Annexure P-22) for admitting the students in the first years of B.B.A. course. Respondent No. 2-University vide their memo dated 1-2-2008 (Annexure P-23) permitted the students of the petitioner college to appear in the annual examination, 2008 as non-collegiate students and further granted special permission to them to seek admission in the second year course as regular students in other colleges. By this order it was declared that the petitioner college shall not be eligible for teaching of 2nd semester of B.B.A. course and shall also not admit students in the first year for the academic session 2008-09 for not following the Statute-28.
The petitioner by the instant petition has prayed for following reliefs:
7.1 by a writ of mandamus or by a suitable, writ, order or direction and the decision and action of the respondent No. 2-University as per letter dated 01-02-2008 (Annexure P-23) may kindly be quashed.
7.2 by a writ of mandamus or by a suitable, writ, order or direction, respondent No. 2-University may kindly be directed not to thrust the provisions of Statute No. 28 (particularly Part-II, Part-I V, Clause Nos. 17 to 21, Clause No. 29 and Part VI, Clause Nos. 30 to 32) upon the petitioner being in violation of Article 30 of the Constitution of India.
7.3 by a writ of mandamus or by a suitable, writ, order or direction, respondent No. 2-University be directed to consider the admissions of first year M.A., M.Com., B.Com.)B.Sc.,B.B.A.,B.C.A. students made in petitioner college in the academic year 2007-08 to be valid admissions and to grant enrolment numbers to the students and to permit them to appear for respective examinations as bona fide students of the petitioner college.
7.4 Grant any other relief, which this Hon''ble Court deems fit in the facts and circumstances of the case.
7.5 That, the Hon''ble Court may kindly be pleased to issue a writ of mandamus directing the respondent University to accept the affiliation fees from the petitioner of the academic year 2007-08.
Respondent No. 2, apart from raising preliminary objection that the petitioner has alternative remedy u/s 12(4) of the Adhiniyam to approach the Kuladhipati for redressal of their grievances, has further averred that Statutes, Ordinances, Regulations or Rules framed by the University do not infringe the rights of minority institutions guaranteed under Article 30 of the Constitution. It has been further stated that since the petitioner institute is affiliated to the University, the regulatory factors, such as qualification and eligibility for appointment, salary structure of employees, work load, leave etc., are applicable to them. It has been denied that the University and the State Government cannot interfere in the process of admission of students, appointment of employees and the disciplinary action against the employees. The University has reiterated that the petitioner institute is bound to perform within the periphery of provisions of Statute-28 and it is not open to the institute to make appointments of its own choice. It has been further averred that since the petitioner has himself confessed to the irregularities committed by the institution and has declared to abide by the provisions of the Statute-28, it is now not open to the petitioner institution to take a stand that Statute-28 is not binding and the petitioner was coerced to confess the irregularities in the college.
Mr. Kulkarni, learned Counsel appearing for the petitioner vehemently argued that Article 30 of the Constitution gives religious and minority organizations a right to establish educational institution of their choice. It is settled law that the statutory provisions which regulate the facet of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and regulations of fee etc. should be minimal and in the matter of day-to-day management, like the appointment of staff teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. Respondent No. 2, on the pretext of implementing Statute-28, is interfering in day-to-day affairs of the petitioner college as is evident from various correspondences annexed with this petition which clearly says that the petitioner has been directed to communicate the outcome of meetings of the governing body of the petitioner institution.
Part-III of the Statute-28 deals with the governing body for the management of colleges and it provides for appointment of two representatives of the university nominated by the Executive Council and also provides for one nominee of the State. It also prescribes the manner in which the governing body is to be constituted. It further deals with the manner in which the vacancy is to be filled-in and lays a duty upon the college to communicate the University every change in the office bearers or membership of the Governing body of the college. From bare perusal of the Part-Ill of the Statute-28 it would be evident that the same confers University/State with an authority to interfere in the matters of governing body of an institute.
Similarly, Para-IV deals with the college council, it regulates mode of it''s constitution, mode of election/appointment of office bearers and duties of the council. Whereas, Clauses 17 to 22 deal with the constitution of selection committee and appointment of Principal and teachers of the institute. Clause 29 deals with the termination of teachers after confirmation and it provide that same cannot be done without the approval of the executive committee. Clauses 30 to 32 deal with suspension and penalties and disciplinary authority to any employee or teacher of the college and it confers powers to the executive council to deal with the appeal preferred by the employees/teachers against the penalty imposed by the governing body.
Relying on the various judgments of the Hon''ble Supreme Court it was argued that admission of students to minority educational institutions, whether aided or unaided, cannot be regulated by the State or University concerned where the scope for merit-based selection is practically nil, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards. Incase of unaided minority educational institution, regulatory measures of control for regulating administration is to be minimal. After the institute has complied with the conditions of recognition as well as conditions of affiliation to a University, in the matters of day-to-day management like appointment of staff, teaching and non-teaching, and administrative control over them, the management has the freedom and there cannot be any external controlling agency. Right to admit students, to set-up a reasonable fee structure, to constitute a governing body, to appoint staff, teaching or non-teaching, and to take action, if there is dereliction of duties on the part of any of the employees is embodied in the right to establish an institution as implied in Article 30(1) of the Constitution. There cannot be interference in day-to-day administration including admission of students, recruitment of staff and quantum of fee to be charged.
On the other hand, learned Counsel for respondent No. 2 argued that provisions of Statute-28 do not infringe the rights of minority institutions. Respondent No. 2 in order to ensure transparency in the admission and to maintain standard of education in the institution directed the petitioner institute to furnish necessary information with respect to the procedure of appointment of teachers. The petitioner college instead of providing information, harped on minority character of the institute and protection under 30(1) of the Constitution in the light of the judgment of the Hon''ble Apex Court. Since the petitioner institute is affiliated with respondent No. 2, the respondent No. 2 is well within its right to interfere in the admission process and is also duty bound to ensure that the teachers employed by the institution possess the necessary minimal qualification prescribed by the University in this regard as per Statute-28. When the petitioner college failed to respond to the queries of respondent No. 2, the University was left with no other option but to declare the irregular admissions given by the petitioner college to the students illegal and accordingly cancelled the examination of English of first semester of BBA course vide Annexure P-20. To ensure further of the students, who were admitted in the college of the petitioner, they were permitted in the computer class of the University and they were also granted special permission to seek admission in the second semester of any other college. However, the petitioner college was restrained from taking classes of second semester of BBA course and they were also restrained from granting admission in 1st semester for the year 2008-09 as before.
We have heard learned Counsel for the parties.
Right guaranteed under Article 30(1) of the Constitution of India to religious and linguistic minorities to establish and to administer educational institutions of their choice came into consideration before the Hon''ble Supreme Court in the matter of Frank Anthony Public School Employees'' Association Vs. Union of India (UOI) and Others, and it has been held that regulatory measures which are designed towards the achievement of the goal of making the minority educational institutions effective instruments for imparting education cannot be considered to impinge upon the right guaranteed under Article 30(1) of the Constitution. The question in each case is whether the particular measure is, in the ultimate analysis, designed to achieve such goal, without of course nullifying any part of the right of management in substantial measure. It has been further held that prescription of pay scales and other allowances, medical facilities, pension, gratuity, provident fund and other prescribed benefits of the employees not to be less than those of the employees of the corresponding status in schools run by appropriate authority. It has been further held that the procedure for enforcement of above competent staff and consequently at the excellence of the educational institution and therefore, such regulation are permissible. The management of a minority educational institute cannot be permitted under the guise of the fundamental right guaranteed by Article 30(1) to oppress or exploit its employees any more than any other private employee. However, it has been also held that provisions which require the prior approval of the Director for the dismissal, removal, reduction in rank or other termination of service of an employee of a recognized private school offends Article 30(1) and hence could not be applied to unaided minority schools.
In the matter of Bihar State Madarasa Education Board, Patna Vs. Madarasa Hanfia Arabic College Jamalia and Others, earlier view has been reiterated that minority institutions cannot be allowed to fall below the standard of excellence on the pretext of their exclusive right of management but at the same time their constitutional right to administer their institutions cannot be completely taken away by superseding or dissolving Managing Committee or by appointing ad hoc committees in place thereof.
In the matter of T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others, the question of scope of right of minorities to establish and administer educational institution of their choice under Article 30(1) read with Article 29(2) of the Constitution of India came-up for consideration before the Hon''ble Supreme Court and a Bench of 11 Hon''ble Judges was constituted. The questions were reframed vide order dated 10-4-2002 in the matter of T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. reported in (2002) 8 SCC 712. The Hon''ble Supreme Court in the matter of T.MA. Foundation (supra) has answered to the 11 questions which were framed for consideration. Relevant questions and their answers by Hon''ble Supreme Court for the purposes of present petition are reproduced hereunder:
Q. 4. Whether the admission of students to minority educational institution, whether aided or unaided, can be regulated by the State Government or by the University to which the institution is affiliated?
A. Admission of student to unaided minority educational institutions viz. schools and undergraduate colleges where the scope for merit-based selection is practically nil, cannot be regulated by the State or University concerned, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards.
The right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the State Government or the University may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions.
Q. 5(a) Whether the minorities'' rights to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students?
A. A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not be tantamount to maladministration. Even an unaided minority institution ought not to ignore the merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence.
Q. 5(b) Whether the minority institutions'' right of admission of students and to lay down procedure and method of admission, if any, would be affected in any way by the receipt of State aid?
A. While giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe bye-rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the State qua non-minority students. The merit may be determined either through a common entrance test conducted by the University or the Government concerned followed by counselling, or on the basis of an entrance test conducted by individual institutions - the method to be followed is for the University or the Government to decide. The authority may also devise other means to ensure that admission is granted to an aided professional institution on the basis of merit. In the case of such institutions, it will be permissible for the Government or the University to provide that consideration should be shown to the weaker Sections of the society.
Q. 5(c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities?
A. So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to a university or board have to be complied with, but in the matter of day-to-day management, like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself.
For redressing the grievances of employees of aided and unaided institutions who are subjected to punishment or termination from service, a mechanism will have to be evolved, and in our opinion, appropriate Tribunals could be constituted, and till then, such Tribunal could be presided over by a Judicial Officer of the rank of District Judge.
The State or other controlling authorities, however, can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a principal of any educational institution.
Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State, without interfering with the overall administrative control of the management over the staff.
Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee.
A Bench of 7 Hon''ble Supreme Court Judges in the matter of P.A. Inamdar and Ors. v. State of Maharashtra and Ors. reported in (2005) 6 SCC 537, the extent to which the State can regulate the unaided minority or non-minority educational institutions in the matter of admission procedure and fee payable by students to the educational institutions has been considered and it has been held that in the matter of unaided minority institutions which seek only recognition but no aid, "the right to establish and administer educational institutions of their choice" must mean the right to establish real institutions which will effectively serve the needs of the community and scholars who resort to these educational institutions. Referring to Para 50 of Pai''s Foundation (supra) it has been held that ''right to establish and administer an institution, the phrase as employed in Article 30(1) of the Constitution, comprise of following rights: (a) to admit students; (b) to set up a reasonable fee structure; (c) to constitute a governing body; (d) to appoint staff (teaching and non-teaching); and (e) to take action if there is dereliction of duty on the part of any of the employees''. It has been further held that-
Affiliation or recognition by the State or the Board or the University competent to do so, cannot be denied solely on the ground that the institution is a minority educational institution. However, the urge or need for affiliation or recognition brings in the concept of regulation by way of laying down conditions consistent with the requirement of ensuring merit, excellence of education and preventing maladministration. For example, provisions can be made indicating the quality of the teachers by prescribing the minimum qualifications that they must possess and the courses of studies and curricula. The existence of infrastructure sufficient for its growth can be stipulated as a prerequisite to the grant of recognition or affiliation. However, there cannot be interference in the day-to-day administration. The essential ingredients of the management, including admission of students, recruiting of staff and the quantum of fee to be charged, cannot be regulated.
In the matter of The Secretary, Malankara Syrian Catholic College Vs. T. Jose and Others, laying down the general principles relating to establishment and administration of education institutions by minorities, it has been held that (a) if the same comprises of choosing its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution; (b) to appoint teaching staff (Teachers/Lecturers and Headmasters/Principles) as also non-teaching staff, and to take action if there is dereliction of duty on the part of any of its employees; (c) to admit eligible students of their choice and to set up a reasonable fee structure; (d) to use its properties and assets for the benefit of the institution. The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-a-vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation etc. applicable to all, will equally apply to minority institutions also. The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulation prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1).
From the principles of law laid down by the Hon''ble Apex Court in the aforesaid judgments it is manifestly clear that:
admissions of students to unaided minority educational institutions, where scope of merit-based selection is practically nil, cannot be regulated by the State or University concerned, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards and the State or University are not entitled to interfere with the right, so long as the admission to the unaided educational institutions is on transparent basis and the merit is adequately taken care of.
A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit.
Statutory provisions regulating the facets of administration in the case of unaided minority educational institutions should be minimal. Condition of recognition and condition of affiliation by a University or Board have to be complied with, but in the matters of day-to-day management, like, appointment of staff, teaching and non-teaching both, and administrative control over them, the management should have the freedom and there cannot be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself and an opinion has been expressed that for redressing grievances of the employees of aided and unaided institutions, who are subjected to punishment or termination from service, a mechanism will have to be evolved and appropriate Tribunal could be constituted and till then the said Tribunal could be presided over by a judicial officer of the rank of District Judge.
In the instant matter it is not in dispute that the petitioner college, which is affiliated with respondent No. 2-University, has been established and administered by a society registered under the Chhattisgarh Firms & Societies Act and the same is recognized as minority institution. Respondent No. 2 on the pretext of exercising powers conferred under Statute-28 has directed the petitioner institute to furnish information regarding the minutes of its Executive Committee and meetings in which nominated members of the University were present. The petitioner institute was directed to comply with the provisions of Statute in the matters of appointment as per decision of the Executive Committee and not to admit students in the 1st year of B.B.A. course. The above demand was reiterated through various communications and it was emphasized that ban imposed for admission to 1st year of B.B.A. course shall continue. Finally, notice of Annexure P-19, dated 4-1-2008 was issued to the petitioner institution calling upon them to reply within three days to the allegations that the students were admitted in the 1st year B.B.A. course despite categorical ban by the respondent University and they were made to fill-up examination forms and therefore, legal action was contemplated against the petitioner institute. On the same day vide Annexure P-20 English Paper examination of the students of B.B.A. 1st year of the petitioner institute was canceled and subsequently such students, who were admitted in the petitioner college, were permitted to submit their forms as non-collegiate students and they were also granted special permission to seek admission in other college as regular student. The Principal of petitioner institute was directed to handover the record pertaining to the above admitted students to the management institute and computer school.
From perusal of the documents annexed with this petition as well as documents filed by respondent No. 2 along with its return, it is manifestly clear that there is no allegation against the petitioner institute that they have appointed teaching staff in the institute who do not conform to the minimal qualification prescribed by the University Grant Commission/University. It is also not the case of the respondent No. 2-University that there was lack of transparency in the admission process of the students, who do not possess the minimum conditions of eligibility for such admissions, have been admitted in the college. Therefore, in the considered opinion of this Court, the action of respondent No. 2-University in imposing ban in admission in the 1st year B.B.A. course and further direction of canceling English paper of the said course of the students of the petitioner college in the purported exercise of powers under Statute-28 amounts to interference in the day-to-day matters of a minority educational institution in violation of Article 30(1) of the Constitution of India.
Similarly, Statute-28 (College Code) particularly, Part-III, IV, Clauses 17 to 21, Clause 29, Part-VI and Clauses 30 to 32 which prescribes procedure for appointment of two representatives of the University and one nominee of the Government as Members of the Governing Body for managing the college; formation of college council; appointment of secretary; procedure of filling the vacancy in the governing body; frequency of the meeting of governing body; restrictions on transfer of property of the society; constitution of selection committee for appointment of Principal; teachers of the college and the mode of their appointment, guidelines, fees, salary scales of pay and other conditions of service and also fixing forum of redressal of grievances, appointment to the post of Professor, provision insisting for requirement of approval of the executive council in the matter of disciplinary action etc., amount to serious interference with the right of an unaided minority institution to establish and administer an educational institution of their own choice as guaranteed under Article 30(1) of the Constitution of India and therefore, the same cannot be enforced by respondent No. 2 on the pretext of resolution of executive council as per Statute-28.
Respondent No. 2-University could not have interfered with the right of the petitioner college to admit students so long as the admission to the unaided education institution is on a transparent basis and the merit is adequately taken care of. Similarly, in the matters of appointment of Principal and teaching staff, the University has power to prescribe minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as teacher or Principal of the petitioner college and regulations made in this regard can be framed without interfering with the overall administrative control of the management over the staff.
Similarly, in the case of the petitioner college, which is a non-aided minority educational institute, conditions for recognition and affiliation can be imposed, however, interference in the matters of appointment of staff, teaching and non-teaching both, administrative control over them and management of the society is not permissible. Even in the matter of redressal of grievances of the employees of the non-aided petitioner institution, the respondent No. 2-University cannot interfere as held in the matter of T.M.A. Pai Foundation (supra) and appointment of appropriate Tribunal can be insisted upon.
In the result the petition is allowed in the following terms:
Order dated 1-2-2008 of Annexure P-23 is hereby set aside and the respondent No. 2-University is directed to consider the admissions of the students for the academic year 2007-08 in the petitioner college afresh in the light of the observations made in this order.
Part-III & IV of Statute-28 which:
prescribes for nomination of representative of the
University and the State Government in the governing body;
interferes with the constitution and functioning of governing body;
regulates the meeting of governing body;
imposes conditions of approval of the executive committee in the matters of appointment, promotion, suspension and punishment of the teachers and other staff;
Clauses 17 to 21 of the Statute-28 which prescribes:
procedure for constitution of selection committee for the appointment of the Principal and teachers of the college and also prescribes that the Committee shall consists of the Kulpati or his nominee as Chairman;
nominee of the Executive Council;
mode of selection, prescribes pay-scales and annual increments for different categories of teachers and Principal;
Clause 29 of the Statute-28 which mandates approval of the executive council in the matter of termination of confirmed teacher and also prescribes condition for termination and Clauses 31, 31 and 32 of Part-VI of the Statute-28 by which disciplinary proceeding against the teachers or other employee is sought to be regulated, amounts to unreasonable restrictions on the administration of the petitioner institute, which is a recognized minority educational institution, and also constitutes infringement of their right guaranteed under Article 30(1) of the Constitution of India and as such, the same cannot be enforced against the petitioner institution by the respondent No. 2-University.
No order as to costs.