IMPORTANT POINT
Section 57(3) of the Kerala University Act cannot apply to minority run educational institutions even if they are aided as such a provision clearly interferes with the right of the minority management to have a person of their choice as head of the institution and thus violation Article 30(1) of the Constitution of India.

Headnote:(i) Constitution of India - Article 30(1) - Right of minorities to establish and administer educational institutions of their choice - Scope - General principles relating to - To what extent, the State can regulate right of minorities when such institutions receive aid from the State.
       Held : The general principles relating to establishment and administration of educational institution by minorities may be summarized thus:
       (i)The right of minorities to establish and administer educational institutions of their choice comprises the following rights :
       a)To choose 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 Head-masters/Principals) 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;
       (ii)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.
       (iii)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 regulations 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).
       (iv)Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/Lecturers by adopting any rational procedure of selection.
       (v)Extention of aid by the State, does not alter the nature and character of the minority educational institution. Conditions can be imposed by the State to ensure proper utilization of the aid, without however diluting or abridging the right under Article 30(1). (Para 19)
       Aided institutions give instruction either in secular education or professional education. Religious education is barred in educational institutions maintained out of State fund. These aided educational minority institutions providing secular education or professional education should necessarily have standards comparable with non-minority educational institutions. Such standards can be attained and maintained only by having well qualified professional teachers. An institution can have the services of good qualified professional teachers only if the condition of service ensures security, contentment and decent living standards. That is why State can regulate the service conditions of the employees of the minority educational institutions to ensure quality of education. Consequently, any law intended to regulate the service conditions of employees of educational institutions will apply to minority institutions also, provided that such law does not interfere with the overall administrative control of the managements over the staff. (Para 20)
       We may also recapitulate the extent of regulation by the State, permissible in respect of employees of minority educational institutions receiving aid from the State, as clarified and crystalised in TMA Pai. The State can prescribe :
       (i)the minimum qualifications, experience and other criteria bearing on merit, for making appointments,
       (ii)the service conditions of employees without interfering with the overall administrative control by the Management over the staff.
       (iii)a mechanism for redressal of the grievances of the employees.
       (iv)the conditions for the proper utilisation of the aid by the educational institutions, without abridging or diluting the right to establish and administer educational institutions.
       In other words, all laws made by the State to regulate the administration of educational institutions, and grant of aid, will apply to minority educational institutions also. But if any such regulations interfere with the overall administrative control by the Management over the staff, or abridges/dilutes, in any other manner, the right to establish and administer educational institutions, such regulations, to that extent, will be inapplicable to minority institutions. (Para 21)
       (ii) Kerala University Act, 1974 - Section 57(3) - Constitution of India - Article 30(1) - Appointment of Principal in an aided private minority institution affiliated to State University - Section 57(3) of the Act required the appointment to be made on basis of seniority-cum-fitness - Such a provision clearly interfere, with the right of minority management to have a person to their choice as head of the institution - Whether right to choose a Principal is part of right of minorities under Article 30(1) to establish and administer educational institutions of their choice - (Yes) - Whether Section 57(3) of the Act would violate Article 30(1) of the Constitution - (Yes) - Section 57(3) of the Act cannot therefore apply to minority run educational institutions even if they are aided.
       Held : The Principal or Headmaster of an educational institution is responsible for the functional efficiency of the institution, as also the quality of education and discipline in the institution. He is also responsible for maintaining the philosophy and objects of the institution.(Para 22)
       The importance of the right to appointment of Principals/Head-masters and teachers of their choice by minorities, as an important part of their fundamental rights under Article 30.(Para 24)
       It is thus clear that the freedom to choose the person to be appointed as Principal has always been recognized as a vital facet of the right to administer the educational institution. This has not been, in any way, diluted or altered by TMA Pai. Having regard to the key role played by the Principal in the management and administration of the educational institution, there can be no doubt that the right to choose the Principal is an important part of the right of administration and even if the institution is aided, there can be no interference with the said right. The fact that the post of the Principal/Headmaster is also covered by State aid, will make no difference.(Para 27)
       The management is entitled to appoint the person, who according to them is most suited, to head the institution, provided he possesses the qualifications prescribed for the posts. The career advancement prospects of the teaching staff, even those belonging to the same community, should have to yield to the right of the management under Article 30(1) to establish and administer educational institutions. Section 57(3) of the Act provides that the post of Principal when filled by promotion is to be made on the basis of seniority-cum-fitness. Section 57(3) trammels the right of the management to take note of merit of the candidate, or the outlook and philosophy of the candidate which will determine whether he is supportive of the objects of the institution. Such a provision clearly interferes with the right of the minority management to have a person of their choice as head of the institution and thus violates Article 30(1). Section 57(3) of the Act cannot therefore apply to minority run educational institutions even if they are aided. (Paras 28 and 29)

JUDGMENT

R.V. Raveendran, J. - These appeals by special leave arise from the judgment dated 5.6.2003 of the High Court of Kerala in O.P. No.10111/2000 and connected cases. As these appeals involve questions which are analogous, they are heard and disposed of by this common judgment. As the ranks of the parties vary, they will be referred to by their abbreviated names.

Facts in CA Nos. 8599 and 8600 of 2003 :

2. The Malankara Syrian Catholic College Association of Archidiocese at Trivandrum is a Society registered under the Kerala Literacy, Scientific and Charitable Socieities Registration Act, 1955. It is a minority organisaion and an Educational Agency (for short the Society). It has established and runs several private colleges in Kerala. The colleges are managed by a Managing Council (for short the management) appointed by the Educational Agency. The Society has appointed a Manager for the colleges under its management, who implements the decisions of the management. Mar Ivanios College (college for short) is one of the colleges run by the said Educational Agency. The said college is an aided private minority institution affiliated to Kerala University under the Kerala University Act, 1974 (Act" for short). Educational instruction is provided in the college, in accordance with the provisions of the statutes, Ordinances and Regulations made under the Act. Each of the colleges run by the Society is headed by a Principal, who is responsible for the functional efficiency, quality of education and discipline.

3. The post of Principal of the college fell vacant on 31.3.2000. The Manager issued an order dated 27.3.2000 giving charge of the post of Principal and Drawing & Disbursing Officer (DDO for short) to Rev. Daniel Kuzhithaakthil, a lecturer in the college. The said order was approved by the Vice-Chancellor of the University by order dated 15.4.2000. The order dated 27.03.2000 was challenged by one of the Lecturers - Dr. Varghese M. Mathunny in O.P. No.10111/2000, wherein an interim order was passed restraining Rev. Daniel from taking charge as Principal. Another Senior Lecturer of the college, Dr. P.V. Thomas also challenged the order dated 27.03.2000 by filing O.P. No. 14337/2000. An interim order was issued in that case on 24.5.2000, restraining Rev. Daniel from functioning as the Principal or DDO.

4. In view of the interim stay preventing Rev. Daniel from acting as the Principal and DDO, the Management made an interim arrangement by appointing T. Jose, a senior lecturer in the College, to discharge the duties of Principal, pending regular appointment to the post. On 5.6.2000, the High Court modified the interim order and gave liberty to the Management to make appointment to the post of Principal on regular basis. In pursuance of it, on 6.6.2000, the Management appointed Rev. Daniel as the Principal on regular basis.

5. The appointment of Rev. Daniel as Principal on 6.6.2000 on regular basis was challenged by T.Jose, (claiming to be the senior most among the eligible and fit lecturers) in Appeal No.5/2000 before the Kerala University Appellate Tribunal, raising two contentions : (i) that Rev. Daniel was ineligible to be appointed as Principal as he did not process the requisite qualifications for the post; and (ii) that the appointment was violative of Section 57(3) of the Act, which required the post of Principal, when filled by promotion, to be made on the basis of seniority-cum-fitness. The Tribunal, by an order dated 20.12.2000, held that Rev. Daniel fulfilled the eligibility criteria, but allowed the appeal holding that the appointment of Rev. Daniel as Principal violated Section 57(3) of the Act. The Tribunal directed the Manager to make a fresh appointment in accordance with law. The said order of the Tribunal was challenged by Rev. Daniel and the Society in O.P. No.3015/2001 and O.P. No. 3742/2001 contending that Section 57(3) of the Act was invalid and inapplicable in respect of minority institu

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2006 Supreme(SC) 1195

Cases Referred (12)