Back
2012 Supreme(Bom) 376
2012(3) ALL MR 123
High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE A.M. KHANWILKAR & THE HONOURABLE MR. JUSTICE N.M. JAMDAR
The President, Sind Educatonists’ Association & Another
Versus
The Registrar, University of Mumbai & Another
WRIT PETITIN (LG.) NO. 76 OF 2012
Decided on: 21-02-2012
For the Petitioners:Arvind Kothari, Advocate. For the Respondents:R1, Rui Rodrigues, Advocate, R2, Jasbir Saluja, A.G.P.
Headnote:Constitution of India - Article 30(1) - Right of minorities. Since right to choose a principal of an educational institution is an important part of right of administration even if institution is aided hence said right need not be interfered with.
The question is : Whether the right to choose an In-charge Principal is part of the right of minorities under Article 30(1) of the Constitution to establish and administer educational institutions of their choice? The right to choose a Principal is or is not part of the right of minorities under Article 30(1) of the Constitution to establish and administer educational institutions is no more res integra. That question has been answered by the Apex Court on more than one occasion. The judgment of the Apex Court on point is in the case of Secy., Malankara Syrian Catholic College V. T. Jose and others, (2007) 1 SCC 386. That was the specific question posed by the Apex Court as Question No. (ii), as can be discerned from paragraph 12 of the judgment. The Apex Court noted that the Principal or Head Master 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. After having said this, the Court proceeded to analyse the series of judgments on the point, and, in paragraph 27 of the reported judgment, concluded that it is thus clear that the freedom to choose the person to be appointed as Principal has always been recognised as a vital facet of the right to administer the educational institution. It went on to observe that this position has not been, in any way, diluted or altered. The Court further noted that, 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. Further, the fact that the post of the Principal/Head Master is also covered by State aid will make no difference.
Constitution of India - Article 30(1) - Right of minority institution - Management of minority institution has a right for appointment of in-charge principal of its choice.
The next question is : Whether the duties and responsibilities of the In-charge Principal or Head Master of the minority educational institution can be equated with that of the permanent or regular Principal or Head Master of the minority educational institution? The fact that the appointment is as an In-charge Principal or Head Master of a minority educational institution - it is no less, as the incumbent is expected to discharge the same duties and responsibilities as that of a regular or permanent Principal. Further, in absence of any express provision in the Act or any statutory Rules, Statutes or Ordinances limiting the responsibilities and duties of the In- charge Principal or Head Master of any educational institution brought to notice, it would necessarily follow that the In- charge Principal or Head Master has to discharge the same duties and responsibilities as of a permanent or regular Principal or Head Master of the educational institution; and, in the process, is responsible for the functional efficiency of the institution, as also the quality of education and discipline in the institution, and-not the least maintaining the philosophy and objects of the institution. The concomitant of this finding is that the management of a minority educational institution has freedom to choose the person to be appointed as In- charge Principal being a vital facet of the right to administer the educational institution, even if the institution is aided or otherwise. Thus, the regime of appointing the senior-most qualified teacher from the college as in - charge Principal will have no application to minority educational institutions. This is precisely what the University Circular dated 14th February, 1990 has provided for. It clearly envisages that the direction requiring filling up the vacancy of Principal by appointing In-charge Principal from amongst the senior-most teachers will have no application to the colleges established and administered by minority institution covered under Article 30(1) of the Constitution of India.
A.M. Khanwilkar, J.
Heard the counsel for the parties.
2. Rule. Respondents waive notice. Rule is made returnable forthwith by consent.
3. As short question is involved, petition is taken up for final disposal forthwith by consent.
4. This writ petition under Article 226 of the Constitution of India is to challenge the State Government Resolution dated 13th October, 2011 and the Circular issued by the Mumbai University dated 8th November, 2011, as well as the consequential communication issued under the signature of Deputy Registrar (Concol Unit) of University of Mumbai vide letter dated 6th January, 2012 rejecting the petitioners’ request to grant approval to the appointment of Dr. Ashok G. Wadia as an Incharge Principal of the college.
5. The petitioners assert that petitioner No. 1 was established on 8th July, 1948 by Sindhi speaking Trustees (linguistic minority in the State of Maharashtra). The college run by petitioner No. 1 Association has been recognised as minority institution. Therefore, the Managing Board of petitioner No.1 resolved to appoint an employee of the college as Incharge Principal against the outgoing Principal of the college, Dr. Kirti Narain, who was due to retire on 30th November, 2011. The Managing Board of petitioner No. 1, in its meeting held on 8th July, 2011, resolved to appoint Mrs. Firdaus J. Mistry, Msc, Mphil, Senior Vice Principal, as Incharge Principal of the college with effect from 1st December, 2011 till a regular Principal was appointed. The post of Principal held by Dr. Kirti Narain fell vacant in earlier point of time due to the incumbent having undergone major surgery. The said Dr. Kirti Narain expressed her desire to retire on 15th December, 2011 on health ground. As a result, the Managing Board of petitioner No. 1, in its meeting held on 25th August, 2011, resolved to appoint Mrs. Firdaus J. Mistry, Senior Vice Principal since 2003, as the Incharge Principal of the college with effect from 17th October, 2011. The appointment letter to that effect was issued on 29th September, 2011 to Mrs. F.J. Mistry. Similarly, letter dated 5th October, 2011 was issued to Mrs. F.J. Mistry for taking over the charge from Dr. Kirti Narain. The petitioners informed the development about appointment of Mrs. F.J. Mistry as Incharge Principal of the college with effect from 17th October, 2011 to the Respondents.
6. The petitioners assert that they had applied for and received necessary no objection certificate from the Joint Director of Education for filling up the post of Principal. It is the case of the petitioners that, after receiving intimation about the appointment of Mrs. F.J. Mistry as Incharge Principal of the college, the State Government, with undue haste and without authority of law, issued Government Resolution dated 13th October, 2011, inter alia, providing for appointment to the post of Incharge Principal only from amongst the qualified senior-most teachers. Not only that, the Government Resolution was delivered by hand delivery in the petitioners’ office within less than 24 hours by the Joint Director of Education vide letter dated 14th October, 2011, which, according to the petitioners, was unprecedented move of the State Authorities, for reasons best known to them. On the basis of the said Government Resolution, the University of Mumbai issued circular on 8th November, 2011 to the effect that, if the Principal’s post in the college is vacant and if additional charge of the said post is to be given, it should be in accordance with the Government Resolution dated 13th October, 2011.
7. The petitioners were surprised to receive communication from the respondent dated 1st November, 2011 that the approval to the appointment of Mrs. F.J. Mistry as an Incharge Principal cannot be considered in the light of University Circular dated 14th February, 1990, as she was not the senior-most teacher in the college. The petitioners replied to the respondents vide letter dated 8th November,
