SEN v. LEWINA (Sen, !.) the Secretary to the Government, Education Department, calling & Ors.

SEN, J.-These appeals by special leave directed against the Judg ment of the Kerala High Court dated July 19, 1973, raise a question of far reaching importance. The question is whether an educational institution established and managed by a religious or linguistic minority is bound by the provisions of Ordinance 3 3 ( 4), Chapter L VII of tha Ordinances framed ·by the Syndicate of the University of Kerala, under section 19(j) of the Kerala University Act, 1957. Smt. Lilly Kurian, the appellant herein, was appointed as Principal of the St. Joseph Training College for Women, Ernakulam in year 1957. ·The College was established by the Congregation of the Mothers of Carma!, which is a religious society of Nnus belonging to the. Roman Catholic Church, and is affiliated to the University of Kera.la. It is administered by a Managing Board, and the Provincial of the Congregation is its President. On October 30, 1969, there was an unfortunate incident between the appellant and one P. K. Rajaratnam, a lecturer of the College, placed on deputation by the Govemmen!. On the basis of a com plaint by Rajaratnam, the Managing Board initiated disciplinary pro ceedings against the appellant and appointed a retired Principal of · the Maharaja's College, Ernakulam, to be the Enquiry Officer. The appellant did not participate in the proceedings. · The attitude adopted by the appellant·unfortunately was one of supreme indifference, taking the stand that the Managing Board had no competence whatsoever to initiate any such ·disciplinary action. Tllo Enquiry Qffic~r by hi& A B c D E F G H ',) ) .A B c 0 E F G 824 SUPRU1:E .. CQURT RE~ORT~ [197911 S.C.R. report dated November 27, 1969,. held. the _appellant guilty of..miscon duct. The Secretary of the Managing Board accordingly served her with a notice dated December 2, 1969. stating that a meeting of the Board was to be held on December 19. 1969, to consider the repre sentation, if any, made by her and also the punishment to be imposed, on the basis of the findings recorded by the Enquiry Officer. In the wake of the disciplinary action, on December 16, 1969, the appellant filed a suit O.S. No. 819 of 1969 in the Munsiff's Court, Ernakulam, challenging .the validity of the proceedings of the Manag ing Board. On December 19, 1969 the Munsiff issued an interim injunction restraining the Management from implementing the decision, if any, taken by it at the mee.ting to be held on that day. A meeting of the Board had, in fact, been held and a decision was taken remove the appellant from service. The Provincial of the Congrega tion by virtue of her office as the President of the Managing Board, by order dated January 2, 1970, dismissed the appellant from service. It" was stated that the Managing Board had after giving due notice to report, the appellant, and on a careful consideration of the enquiry and the findings thereon, found th•at the charges of misconduct were proved. The appellant was accordingly directed to handover all papers, files, vouchers and documents connected with the College to Sr. Lewina, Profossor, without further delay, stating that the order immediately for her dismissal from after the decision of the Munsiff on the temporary injunction. service would be implemented applic>ation for On January 17, 1970, the Munsiff held that the dismissal of the appellant was free from any infirmity and was by the competent autho rity, that is the Managing Board, •and, therefore, she had no prbna facie case. The Munsiff accordingly vacated the injunction with a direction that temporary injunction already issued will remain in force for two weeks to enable the appellant, if she wanted to move the Vice Chancellor and obtain from him a stay of the order of dismissal. The appellant had, in the meanwhile, on January 9, 1970; already. filed an •appeal before the Vice-Chancellor under . Ordinance 33(4.), 'chapter L VII of the Ordinance framed by the Syndicate, against· the order of dismissal. The Vice; Chancellor by his order dated January 24, 1970, staY,ed the operation of the order of dismissal. The suit filed by the appellant was subsequently dismissed .bY the Munsiff as · withdrawn. · .~. 'C'.c It appears that the appellant was a)! t!i"wl, lile fuooti911ing.as princi- pal of the College. communications ·dated October ·G,o; 1969, 'and.:No\'e!llb.er· 5,- 1969, to It was brought to ·ligjlt,),hat she h~<l- sent LILLY KURIAN v. LEWINA (Sen, !.) 825 the Secretary to the Government, Education Department, calling for termination of deputation· of Rajaratnam, appointed as a Lecturer fn the College by the Management, •as a result of which his deputation was cancelled by the Government on December 9, I 969. The Manag ing Board viewed the sending 0f these communications by the appel lant without reference to it as an act of insubordination, and, there fore, decided to conduct an enquiry against the appellant and she was · suspended pending enquiry. A substitute Principal, Sr. Lewina, was appointed and the appellant was relieved of the duties on April 10, 1970. On April 13, 1970 the appellant filed an appeal to the Vice Chancellor against the order of suspension under Ordinance 33 (1) of Chapter L Vil, and the Vice-Chancellor by his order dated April 20, 1970 directed that the status quo be maintained. In view of this order, the Management was presumably apprehensive that the appel lant might focce herself upon the College. The substitute Principal, Sr. Lewina, appointed by the Management in place of the appellant accordingly on July 2, 1970 filed the suit O.S. No. 405 of 1970 in the Munsiff's Court, Ernakulam for an injunction restraining the appel lant from functioning and from interfering with ·her discharging the duties as Principal. The Munsiff granted a temporary injunction, in the terms prayed for, which was subsequently confirmed. A D E The Vice-Chancellor, University of Kerala, by his two orders dated October 19, 1970 held that the order of dismissal from service and the order of suspension passed against the appellant were breach of the rules of natural justice and fmr play and were conse quently illegal and null and . void, and accordingly direeted t.he Management to allow her to function as Principal. Before the orders were communicated, the Management filed the suit O.S. No. 110 of 1970 in the Munsiff's Court, Ernakulam on Octob,r, 22, 1970, seeking an injunction restraining the appellant from functioning as Principal of the College and obtained a temporary injunction. While these two injunctions were in force, the appellant wrote to the Superintendent of the Post Offices demanding delivery of lett.ers addressed to , the Principal at her residence. The non-delivery of letters creoated a dead- lock in the administration of the College. On July 22, 1972, <ubstitute Principal, Sr. Lawine accordingly filed a suit O.S. No. 569 of 1972 in the Munsiff's Court, Ernakulam against the appellant and the Postal Authorities -for prohibiting the one from receiving ~n·d the other from delivering, thec'postal articles addressed to the Principal of the College. All the tllree suits pending in the Munsiff's Court, Ernaku- H lam were transfllffed/''by'th~' otiler of the District Judge, Ernakulam to the !st Additional Sub-Court, Ernakulam for disposal. · 'G I! '• • \ . ) I J. A B c D E F G H 826 SUPREME COURT 11.EPOll.TS (1979) l s.c.11.. The trial court by its judgment dated December 6, 1972 dismissed the suits holding that the appellate power conferred on the Vice Chance!lor by els. ( 1) and ( 4) of Ordinance 33, Chapter LVII of the Ordinance framed by the Syndicate under s. 19(j) of the Act, wasa valid conferment of power on the Vice-Chancellor and even after the commencement of the Kerala University Act, ! 969, both the Vice Chancellor and the Syndicate had concurrent powers of appeal. It, therefore, upheld the orders of the Vice-Chancellor directing reinstate ment of the appellant in service. On appeal, the District Judge, Ernakulam by his judgment dated March 17, 1973 held that the orders of the Vice-Chancellor were perfectly valid and within jurisdiction, and that his direction to the Management to continue the appellant as Principal in her office was also legal. He, accordingly dismissed the appeals. The Kerala High Court, however, by its judgment dated July 19, 1973 reversed the judgment and decree of the court below and decreed the plaintiffs' suit holding that (i) the conferment by the Syndicate of a right of appeal to a teacher against his order of dismissal from service to the Vice-Chancellor cannot be said to be in excess of the pennissible limits of the power to prescribe the duties and conditions of service of teachers in private colleges in terms of s. 19 (j) of the Act, and (ii) the provisions for a right of appeal contained in Ordinance 33(1) and (4), Chapter LVII of the Ordinance were not violative of the rights guaranteed to the religious minorities under Article 30(1), and were, therefore, valid, following certain observa tions of its earlier Full Bench decision in V. Rev. Mother Provincial v. State of Kera/a('). According to the High Court, although Vice-Chancellor had the power to hear an appeal against an order of dismissal under Ordinance 33(4), he had not, expressly or impliedly, the power to order reinstatement or even to grant a declaration that the services of the 'appellant had been wrongly terminated. It held that a statutory tribunal like the Vice-Chancellor could not grant such a relief as the same would amount to specifically enforcing the con tract of service. In reaching the conclusion, the High Court observes that this, in effect, "amounts to eviscerating the right of appeal to the Vice-Clrancellor, but the remedy lies elsewhere", in the light of the authorities cited by it. The Kerala University Act, 1957, "the Act", as the preamble shows, was enacted to reconstitute the University of Travancore into a teaching University for the whole of the State of Kerala. Section 2(a) defines "college" to mean a college maintained by, or affiliate<! (I) I. L. R. f 196912 Kera la 642 .. • \ • LILLY KURIAN v. LEWINA (Sen, J,) 827 to the University. TI1e definition of "teacher" in section 2(j) of the Act is wide enough to take in a Principal, as any 'other person impart- ing instruction'. Section 5(viii) confers power on the University to affiliate to itself colleges wit)lin the State in accordance with the con ditions to be prescribed in the statutes regarding management, salary aud terms of service of members of the staff, and other such matters, and to withdraw affiliation from colleges. Section 15 (2)(ii) enjoins that the Senate shall make, amend or repeal statutes of its own motion or on the motion of the Syndicate. The powers of the Syndicate are enumerated in section 19, the relevant provisions of which read : "19. Powers of the Syndicate-Subject to the provisions of this Act and the Statutes, the _Executive Authority of the University including the general superintendence and control over the institutions of the University shall be vested in the Syndicate; and subject likewise, the Syndicate shall have the following powers, namely : - A B c (a) to affiliate institutions in accordance with the condi- D tions prescribed in the Statutes; (b) to make Ordinance and to amend or repeal the same; x x x x x x x x (j) to fix the emoluments and prescribe the duties and the conditions of service of teachers and other em- ployees in Private Colleges." The Kerala University Act, 1957 was repealed by the Kerala University Act, 1969 which ca.me into force with effect from February 28, 1969. Section 75 (2) of the Act provides that the statutes, ordi nances, rules and byefaws in force immediately before the commence ment of the Act shall, in so· far as they are not inconsistent with its provisions, continue to be in force unless they are replaced. E F •• The material provisims of Ordinance 33, Chapter LVII of Ordinances framed by the Syndicate under section 19(g) are as follows:- G "33 ( 1) Suspension : The management may at any time place a teacher under suspension where a disciplinary pro ceedings against him is contemplated or is pending. He shall be paid subsistence allowance and other allowances by the management duriag the period of suspension at such rates as may be specified by the University in each case. The teacher H 828 SUPREME COURT REPORTS [1979] 1 s.c.R. shall have. right to app·~al against the order of suspension to the Vice-Chancellor of the University within a period of two the order of months from the date on which he receives suspension. (2) Nature of pena!t•~s : The following penalties may for good and sufficient reasms be imposed on a teacher by the Ma'nagement :- ( i) Censure. (ii) Withholding of increment (iii) Recovery from pay of any pecuniary loss caused to the institution/monetary value equivalent amount of increment ordered to be withheld. A B c (iv) Reduction to a lower rank i·a the seniority list or to a lower grade or post ( v) Dismissal from service. D The Management shall b~ the Discipli'nary Authority in imposing the penalties. x x x x x x x ( 4) Appeal : A teacher shall be entitled to appeal to the Vice-Chancellor of the University against any order pa55ed by the management in respect of the penalties referred to in items (ii) to (v). Such ·appeal shall be submitted within a period of 60 days the appel\a·at receives the order of punish ment." · & Ors. v. Shardul Singh(") have made it clear The expression "conditions of service" covers a wide , range, as exphined by the Privy Council in N.W.F. Province v. Suraj Narain(') which was approved by this Court in State of U.P. v. Babu Ram.(') These decisions and ahso a later decision of this Court in State of M.P. the expression 'conditions of service' bcludes everything from the stage of appoint ment to the stage of terminatio'n of service and even beyond, and relates to matt.ors pertaining to disciplinary action.' Thus, the expres sion 'conditions of service' as explained in the decisions of the Privy take disciplinary Council and of this Court includes the power to in Chapter action. The rules regarding these matters are contaihed LVII of the Ordinances. The Management of a private college under the disciplinary Ordinance 33 (2) i• constituted the appointing and (1) 75 I. A 343. (2) [1961] 2 S. C. R. 679. (3) [1970] 3 . C. R. 302. E F G H ' ,t· )~ • •• LILLY KURIAN v. LEWINA (Sen, J.) 829 authority in respect of imposition of punishment. 111 the course of any disciplinary proceeding, a right of appeal before the Vice-Chancellor is given to a teacher dismissed from service under Ordinance 33(4) of the Ordinances. The High Court thus rightly held that the right of appeal conferred by Ordinance 33( 4) forms part of the 'conditions of service' and, therefore, is valid. ... \. The High Court was, however. wro'ng in two ways. Firstly, it hlto an error in holding that the Vic•,-Chancellor while exercising the appellat!" powers under Ordinance 33 ( 4), had not the power to direct reinstatement of a teacher or grant a declaration that his dismissal was wrongful. It also fell into an error in holding that a right of appeal before the Vice-Chancellor given to the teachers of private colleges under Ordinance 3 3 ( 1 ) and ( 4) , h1 the matter of suspension and dis religious minorities under missal, was not violative of the rights of article 30(1) of the Constitution. Under Ordinance 33 ( 1), a teacher placed under suspension, has a right of app, al agai\J5t the order of suspension to the Vice-Chancellor. Uader Ordinance 33(4), a teacher shall be entitled to appeal to Vice-Chancellor against any order passed by the management in resp, ct of penalties referred to in items (ii) (v) of Ordinance 33(2). Merely because a right of appeal is provided without defining the powers of the appellate authority, it cannot be implied that such right does not include the power to direct reinstatement. The confer ment of a power to hear an appeal necessarily invests the appellate authority with tile power to annnl, vary or set aside the order appealed from. Such power is incidental to or is implied in, the power to hear an appeal. It necessarily has the power to grant an appropriate relief. Indeed, the extent of tile appellate power under Ordinance 33(4) is the Vice 'not defined. When a teacher is dismissed from service, Chancellor can not only direct reinstatement but also modify natu.re of punishment. The whole matter is at large before hinl. ) In V. Rev. Mother Provincial v. State of Kera/a (supra) a Full Bench of the Kerala High Court while dealing with section 56(4) of the Kerala University AcJ., 1969, observed that the right of appeal to the Syndicate, which being a large body comprising of as many as seventeen members will be subject to pnlls and pressures, was not a body which could be e·atrusted with a judicial. function of this nature. In tilat view, it held that sub-~ection (4) suffers from the defect of the appeal being to a forum which seems to be entirely unsuitable for the purpose, being unreasonable, and so much against tile interests of the B c D E F G H A • c D E F G H 830 SUPREME COURT REPORTS [ 1979j I SC R. institution, that it can hardly be justified either as a regulation of, or as a reasonable restriction on the power of the manag~mcnt. Incidentally, it observed : "Though the appeal lies not, as one would have expec ted, to a judicial or quasi-judicial tribunal but to an executive body which, having regard to its comp<l6ition, would hardly be able to produce what is ordinarily called a speaking order." The High Court has react more into the Full Bench decision than there is, and from the mere observation that the proper remedy against a;zy abuse of the disciplinary power would be an appeal, seem assume that a provision like Ordihance 33(4) would not affect right guaranteed to a minority under Article 30(1 ), in matters per taining to discipline. On the contrary, the Full Bench observed :·-- "TI1e Vice-Chancellor can hardly be expected to have the time to deal with such matters, and in any case, the lcY:lg delay that will necessarily be involved would, by itself rehde-r the managing body's powers of disciplinary control largely ineffectual." is, therefore It is contended on behalf of the appellant that the right to adminis ter guaranteed by Article 30( 1) of the Constitution does not carry with it a 'right to maladminister'. It is urged that while autonomy admiitlstration means right to administer effectively and to manage and conduct the affairs of the institution, the University will always have a right to sec that there is no maladministraticm. If there is malad ministration, the University must take steps to cure the same. The right to administer to be tampered with regulatory measures to facilitate smooth administration. Regulations which will serve the interests of the students, regulations which will interestl; of the teachers are of paramount importance under good administration. Regulations b the interest of efficiency of teachers, diB cipline and fairness in administration are necessary for preserving har mony among affiliated institutiohs. It is urged that if the State has any role to play in the system of general education, its power camiot be confined merely to the laying down of a prescn'bed standard of educa tion for minority educational institutions but should also extend to all necessary measures to secure an orderly, efficient and sound admmis tration of such institutions. Once the role of the State in the system of general educ; ition is properly understood its regulatory power over the minority educational institutions, it is submitted, would depend upon the :iature or type of the educational institutions set up by a minority a'nd all other relevant factors, and no universal or general test can be ' ,, .. LILLY KURIAN I', LEW!NA (Sen, J,) 831 inter-dependent group of diven;e laid down, The degree of permissive State control must depend upon the circumstances of each case, The right under Article 30 (1) forms social part of a complex and interests, There cannot be any perpetually fixed adjustment of the right and those social interests, They would need adjustment and readjust ment from tim~ to time and in varying circumstances, Undoubtedly, the management of a minority institution could not be displaced by the regulat-Ory measure, But the State has a power to regulate through the age::icy of the University the service conditions of secure a fair procedure in the matter of disciplinary action against them, These safeguards must necessarily result in the security of tenure of teachers and must attract competent and qualified staff and could ultimately improve the ~xcellence and efficiency of the educa tional institution, teache11S and It is further urged that the reconciliation of minority rights in education with wider social and educational objectives is inevitably necessary and this involves the judicial task of balancing the guarante ed rights under Article 30 (1) with social, national or educational values sought to be regulated or protected by the impugned legislation, It has to bo kept in mi:ld that today the education has designed which would subserve not only the well being of the citizens inculcate in the intellectual, ethical and financial spheres but would amongst tbem a scns•o of individual and social consciousness to con tribute to the welfare ffnd prosperity of an egalitarian society, is, therefore, urged that Ordinance 33 ( 4) , Chapter LVII of the Ordi is not uances framed by the Syndicate under s,l9(j) of violative of Article 30 (1) as it seeks to ensure justice and fair play to the teachers against arbitrary actions of the management the Act to be It is next urged that the Vice-Chancellor, while exercising his uppellate power under Ordinance 33 ( 4) is i:ldeed clothed with tbe State's inherent judicial power to deal with disputes lntween parties and determine them on the merits, fairly and objectively, A :a c o· E F It is urged that the contention that the impugned order passed by the Vice-Chancellor under Ordinance 33 ( 4) affects the fundamental G rights of minority religious institutions under Article 30(1), is based on a complete misconception about the true nature and character of If this basic and judicial judicial process and of judicial decisions, aspect of the judicial process is borne in mind, it is submittted, it would be plain that the decision given by th~ Vice-Chancellor cannot be said to affect the fundamental rights guaranteed under Article 30(1), The remedy for a person aggrieved by tl1e decision of a competent judicial tribunal is to approach for redress a superior tribunal, if there be one, II \ ' ,l .. A B c D E F G H 832 SUPREME COURT REPORTS [ 1979] I s.c.R. Lastly it is urged that the rights of the religious and linguistic mino liberally rities in respect of their educational institutions, however, fundamental construed, cannot be allowed to dominate every other rights, dil'.'clive principles of State policy and broad ideals of Constitution. Article 30 (I) enables the minorities to establish administer educaticmal institutions of their choice but it is said cannot be entitled to exact unjustifiable preferential or discriminatory treatment for minority institutions so as to obtai·n benefits but to reject obligations of statutory rights. We fail to see the relevance of these submissions while adjudging the validity of Ordinance 33 (I) a:ad ( 4) in the light of Article 30(1 ). The appellant, who appeared in person, supplemented the argu ments of the learned counsel appearing as amicus curiae and urged that if the Court does not uphold the powers of the Vice-Chancellor under Ordinance 33 ( 4) it would be ta:atamount to negation of State's regulatory power to prevent or cure the abuse of power by the management and throw the teachers to their arbitrary actions without religious, cultural a'nd any security of tenure. She urged that the sympathetic linguistic minorities though deserve a generous and treatment, cannot at the same time be absolved of their obligations conform to the norms of natural justice and fair employment. I c ' In assailing the view of the High Court, learned counsel for Management contends that the right of administration of minority educational institutions rests with the Management and the right of appointment, suspension and dismissal of the staff also is part and parcel of the administration. In a private college, t'he appointing and disciplinary authority is the management. Ordinance 33 relating to the service conditions of teach~rs in private colleges· authorises management to take any disciplinary proceedings. The University has no power to interfere into the administration of the college or into the disciplinary action taken agai'nst a member of the staff. The creation of an appellate authority like the Vice-Chancdllor, which is an outside right of management agency, itself is an illegal abridgment of the enshrined in Article 30(1). That apart, directing a dismissed Principal, who is the academic h~ad of the college, to hold office against wishes of the founders of the college without specific power in regard, is an anathema to the right of adminisiration guaranteed by If the Vice-Chancellor were to Article 30( 1) of the Constitution. have power of rebstatement of a dismissed teacher, the restllt would be, in effect, appointing a person against the will of the founders of the institution. The conferment of such a power on the Vice. Chancellor is destructive of the right of management. In support of the contention the \_ .... l-· i \. ULLY KURIAN v. LEWINA (Sen, J.) 833 that Ordinance 33 (I) and ( 4) were violative of Article 30(1), reliance was placed on the decision in Ahmedabad St. Xa.viers College Society & Anr. v. State of Gujarat & Anr.('). Learned counsel for the interveners contends that the interposition of an outside authority like the Vice-Chancellor, demits the entire discipli:iary po'WW of a minority educational institution to the Vice Chance,:lor. Under Ordinance 33 ( 4) the Vice-Chancellor has power to veto i:s disciplinary control. There is complete interference with the disciplinary power of the minority institution. The State may 'regulate' the exercise of the right of administration, but it has no power 1o impose any "restriction' which is destructive of the right itself. In matters relati"ag to discipli"ne, the process of decision musr be left to 1he institution. There is direct interference with this right. The post of principal is of pivotal importance in the life of a college, around whom wheds the tone and temper of the institution, on whom depends the continuity of its traditions, maintena-:ice of discipline and the efficiency of its teaching. The character of the institution depends on the right choice of the principal by the management. The right to choose the principal is perhaps the most importa1)J facet of the right to adminis' ter a college. In the same way, the right to dispense with the servio~s of the principal is a:i equally important facet of the same right. The imposition of any trammel, thereon, except to the extent of prescribing the requisite qualifications and the experience or otherwise fostering the interests of the institution itself, cannot but b" considered as a violation of the right warranted under Article 30 ( 1 ) . Learned counsel appearing for the State of Kerala, however, while conceding that conferral of arbitrary and unguided powers on an out- .L side agency like the Vice-Chancellor, would be destructive of the right of management under Article 30 (I), contends that the power of the Vice-Chancellor under Ordinance 33(4) to hear an appeal agai:ist an order of dismissal does not suffer from this vice. He tries to limit the appellate power of the Vice-Chancellor under. Ordinance 33(4) to a case where the action of the management is ma/a fide or where order of dismissal is a nullity or where the management has acted i':t breach of the rules of natural justice. When so read, it is urged, that the conferment of the right of appeal to the Vke-Chancellor in case of disciplinary powers of a minority educational institution, amounts only to a regulation of such power, and, therefore, Ordinance 33 ( 4) is not violative of Article 30 ( l ) . ' ' Article 30( I) of the Constitution provides :- (I) (19751 I S. C. R. 173. A n c D E F G H 4'c.io.- - 834 SUPREME COURT REPORTS [1979] l S.C.R. "30. (1) All minorities, wheth::r based on religion or language, shall have the right to establish and administer educational institutions of their choice." It is clear beyond doubt that Article 30 ( 1), though couched absolute and spacious terms in marked contrast with other fundamental rights-in Part III, has to be read subject to the regulatory power of the State. Though this Court has co·nsistenlly recognized this power of the State as constituting au implied limitation up011 the right guaranteed under Article 30 ( 1), the entire controversy has centred around extent of its regulatory power over minority educational institutions. In re the Kerala Education Bill, 1957('), S. R. Das, C.J. explained the co'ntent of the right under Article 30 ( 1) of the Ccrastitution, these words :- "We have a~rcady observed that Article 30( I) gives two rights to the minorities, (I) to establish and (2) to administer, educational institutions of their choice. The right to administer cannot obviously include the right to malad minister. The minority cannot surely ask for aid or recogni tion for a·n educational institutiO'n run by them in unhealthy surroundings, without any competent teachers possessing any semblance of qualification, and which does not maintain even a fair standard of teaching or which teaches matters subver sive o{ the welfare of the scholars. It sta'nds to reason, then, that th~ constitutional right to administer an educational institution of their choice does not necessarily militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regulations to e'nsure the excellence of the institutions to be aided." Thus, a contention based on the absolute from State control of the minorifos' right to administer their educational institu tions was expressly negatived in this case. The Court clearly laid down a principle, ·namely, a regulation, which is not destructive or annihi lative of the core or the substance of the right under Article 30(1), could legitimately be imposed. freedom A B C D E F G The right of a minority commuaity to establish and administer educational institutions of their choice was subject matter of decision by this Court in more than one case. In Rev. Sidhajbhai Sabhai vc State of Bombay,(') Shah J. (as he then was) speaking for the Court, negatived an argument advanced on II (I) [1959] S. C.R. 995. (2) [1963] S. C.R. 837. • ' .. , ' ' \ . . • LILLY KURIAN v. LEWINA (Sen, J.) 835 behaif of the State that a law could not be deemed to be unreasonable unless it was totally destructive or annihilative of right under Article 30 ( 1), stating : ·The right established by Art. 30(1) is a fundamental right declared in terms absolute. Unlike the fundamental freedoms guaranteed by Art. 19, it is '.not subject to reason able restrictions. It is intended to be a real right for the pro tection of the minorities in the matter of setting up of educational institutions of their own choice. The right is in tended to be effective and is not to be whittled down by se>-ealled regulative measures conceived in the interest not of the minority educational institution, but of the public or the nation as a whoie. If every order which while maintaining the formal character of a minority institution destroys the power of administration is held justifiable because it is in the public or national i'.n~~rest, though not in its interest as an educational institution, the right guaranteed by Art. 30 ( 1) will be but a 'teasing illusion', a promise of unreality." The learned Judge then we; it on to say : "Regulation which may lawfully be imposed either by receiving legislative or executive action as a condition of grant or of recognition must be directed to making the insti tution while retaining its character as a minority institution effective as an educational institution. Such regulation must satisfy a dual test-the test of reasonableness, and the that it is regulative of the educational character of the insti tution and is conducive to making the institution an effec tive vehicle of education for the minority community or other persons who resort to it." Unlike Article 19 (1) the fundamental freedom under Article 30{1) is absolute in ~!rms; it is not made subject to any reasonable restrictions of the nature the fundamental i'n Article 19 may be subjected to. All minorities, linguistic or religious. have by Article 30( I) an absolute right to estab'.ish and administer law or executive educational rnstitutions of their choice; and any direction which seeks to infringe the substance of that right under Article 30(1) would to that extent b~ void. freedoms enunciated The extent of the regulatory power of the State was explained by Shah J ., thus : "This, however, is not to say that it is not open to the State to impose regulations upori the exercise of this right. A B c D E F G H 836 SUPREME COURT REPORTS [J 979] 1 s.c.R. A B The fundamental freedom is to establish and to administer to establish and educational institutions : it is a administer what are in truth educational institutions. institu tions which cater to the educational needs of the citizens, or sections thereof. Regulation made in the true interests of sanitation, instruction, discipline, health, efficiency of morality, public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the sub stance of the right which is guaranteed; they secure the pro per functioning of the institution, in matters educational." c In Rev. Father W. Proost & Ors. v. The State of Bihar & Ors.( 1 ) Hidayatullah C.J. while dealing with Articles 29(1) and 30(1), said : f ) D E "In our opinion, the width of Article 30(1) cannot be cut down by introducing in it considerations on which Art. 29 ( 1) is based. The latter article is a general protection language, which is given to minorities to conserve script or culture. The former is a special right to minorities to establish educational institutions of their choice. This choice is not limited to institution, seeking to conserve langu age, script or culture and the choice is not taken away if the minority community having established a·n educational insti- tution of its choice also admits members of other commu nities. That is a circumstance irrelevant for the application of Article 30 (1) since no such limitation is expressed and none can be implied, although it is possible that they may meet in a iiven case." F Incidentally, in dealing with the right under Article 30(1) and the extent of the State's power of regulatory control of such right, this Court in State of Kera/a v. V. Rev. Mother Provincial(') observed "Administration means 'management of the affairs' of the institution. This management must be free of control so that the founders or their nominees can mould the institution as they think fit, and in accordance with their ideas of how interests of the community in general and the institution in particular will be best served. No part of this management can be taken away and vested in another body without encroachment upon the guaranteed right. There is, however, an exception to this and it is that the standards of education are not a part of management as such. These standards concern the body politic and are dictated G (I) [1969} 2 S. C. R. 73. (2) [1971] l S. C.R. 734. · . . ' ' \ l • • ___ ,,.- LILLY KURIAN v. LEWINA (Sen, J.) 837 by considerations of the advancement of the country and its people. Therefore, if universities establish syllabi for exami nations they must be followed, subject however to special subjects which the institutions may seek to teach, and to a certain extent the State may also regulate the.conditions employment of teachers and the health and hygiene of stu dents. Such regulations do not bear directly up<in manage ment as such although they may indirectly affect it. Yet the right of the State to regulate e(lucation, educational standards and allied matters cannot be denied. The minority institu- tions cannot be allowed to fall below the standards of ex- ceUance expected of educational institutions, o'r under the guise of exclusive right of management, to decline to follow the general pattern. While the management must be left to them, they may be compelled to keep in step with others." A B c Projection of the minorities is an article of faith in the Constitution of India. The right to the administration of-institutions of minority's ,choice enshrined in Article 30(1) means 'management of the affairs' D This right is, however, subject to the regulatory ,of the institution. power of the State. Article 30( I) is not a charter for maladministra- 'tion; regulation, so that the right to administer may be better exercised for the benefit of the institution is permissible; but the moment one goes beyond that and imposes, what is in truth, not a mere regulation but an impairment of the right to administer, the Article comes in~ E play and the interference cannot be justified by pleading the interests of the general public; the interests justifying interference can only be the interests of tbe minority concerned. ' The conferment of a right of appeal to an outside authority like the Vice-Chancellor under Ordinance 33 ( 4) takes away the disciplinary power of a minority educational authority. The Vice-Chancellor has the power to veto its disciplinary control. There is a clear interference The State with the disciplinary power of the minority institution. may 'regulate' the exercise of the right of administration but it has no it- '}JOWer to impose any 'restriction' which is destructive of the right self. The conferment of such wide powers on the Vice-Chancellor G amounts in reality, to a fetter on the right of administration under Arti- cle 30(1). This, it seems to us, would so affect the disciplinary cont- 'TOl of a minority educational institution as to be sub\'ersive of its con stitutional rights and can hardly be 'regulation' or a "restriction' in the interest of the institution. regarded as a , F In St. Xaviers College v. Gujarat (supra) a Bench of nine Judges, 'by a majority of seven to two, held that clauses (b) of sub-sections ( 1) :and (2) of s. 51A of the Gujarat University Act, 1949 were violative H ·-· A B c D E ... G H 838 SUPREME COURT REPORTS [ 1979 j 1 s.c.R. of Article 30(1). Section 51A(l) (b) enacts that no member of the teaching, other academic and non-teaching staff of an affiliated college shall be dismissed or removed or reduced in rank except after an enquiry in accordance with the procedure prescribed in clause (a) and the penalty to be inflicted on him is approved by the Vice-Chancel lor or any other officer of the University authorised by the Viee Chancellor in this behalf. Similarly, clause (b) of sub-section (2) requires that such termination should be approved by the Vice-Chan the Vic;. cellor or any officer of the University authorised by Chancellor in this behalf. It was argued that the requirement that such termination must be with the approval of the Vice-Chancellor, creates a fetter in matters relating to disciplinary control over the members of the teaching and non-teaching staff. The approval by the Vice-Chancellor, it was said, may be intended. to be a check on the administration but there were no guidelines provided and, therefore, clauses (b) of sub-section (1) and (2) of section 51A cannot be said to be a permissive regula tory measure. These contentions were upheld by the majority. While seven Judges who constituted the majority upheld the provi sions of clauses (a) of sub-se.ction ( 1) and (2) of section 51A, as they provided for a reasonab!e opportunity of showing cause against a penalty to be imposed as being 'regulatory', they held that clauses (b) of sub-sections (1) and (2) of section 51A of the Act, which confer a blanket power on the Vic~Chancellor to interfere with the discipli nary control of the miinagement of a minority educational institution over its teachers, make a serious inroad on the right of the minority to administer an educational institution guaranteed under Article 30( 1). To appreciate the point involved, we may refer to certain passages In dealing with the question, Ray C.J., with whom of the judgment. Palekar, J. agreed, observed : "In short, unlimited and undefined power is conferred on the Vice-Chancellor. The approval of the Vice-Chancel lor may be intended to be a check on the administration. The· provision contained in section SlA, clause (b) of the Act cannot be said to be ru permissive regulatory measure inasmuch as it confers arbitrary power on the Vic~Chancel­ lor to take away the right of administration of the minority institutions. Section 51A of the Act cannot, therefore. apply to minority institutions." • The provision for approval of the Vic~Chancellor was held to be Further, it WR!f bad because it acted as a check on administration. ) .. LILLY KURIAN v. LEWINA (Sen, J.) 839 held to confer arbitrary powers on the Vice-Chancellor because there was no guidelines on the basis of which the Vice-Chancellor could withhold his approval. Jaganmohan Reddy J., speaking for himself and for Alagiriswami J. agreed with the opinion of Ray C.J. In explaining the extent of regulatory control, Khanna J. stated "Although disciplinary control over the teachers of amino rity educational institution wpuld be with the governing council, regulations, in any opinion, can be made for ensur ing proper conditions of s_ervice of the teachers and for secu ring a fair procedure in the matter of disciplinary action against the teachers. Such provisions which are calculated to safeguard the interest of teachers would result in security of tenure and thus inevitably attract competent persons for the posts of teachers. Such a provision would also eliminate a potential cause of frustration amongst the teachers. Regu lations made for this. purpose should 15e considered to be in the interest of minority educational institi. Itions and as such they would not violate article 30(1 )." He accordingly upheld the validity of clause (a) stating : "Clause (a) of sub-sections (1) and (2) of section SIA of the impugned Act which make provision for giving a reasonable opportunity of showing cause against a penalty to be proposed on a member of the staff of an educational insti tution would consequently be held to' be valid." But he held clause (b) to be invalid saying : "Clause (b) of those sub-sections which gives a power to the Vice-Chancellor and officer of the Universi!y authorised by him to veto the action of the managing body of an ednca tional institution in awarding punishment to a _member of the staff, in my opinion, .interfere with the disciplinary control of the managing body over its teachers. It is significant that the power of approval conferred by clause (b) in each of the two sub-sections of section SlA on the Vice-Chancellor or other officer authorised by him is a blanket power. No guide lines are laid down fqr the exercise of that power and it is ndt provided that the approval is to be withheld only in case the dismissal. removal, reduction in rank or termination of ser vice is mala fide or by way of victimisation or other similar The confern; ient of such blanket power on the Vice- cause. A B c D E F G H \ , • < ,, ,_,~ A B c D E F G H 840 SUPREME COURT REPORfS [ 1979] I s.c.R. Chancellor or other officer authorised by him for vetoing the disciplinary action of the managing body of an educational institution makes a serious inroad on the right of the manag ing body to administer an educational institution. Clause (b) of each of the two sub-sections of section 51A should, therefore, be held to be violative of article 30( 1) so far as minority educational institutions are concerned." It was held that clause (b) interferes with the disciplinary control of the managing body over its teachers. The provision does not res trict its operation in cases of mala {ides or victimisation, etc. In other words, the power of the Vice-Chancellor was complete. He could refuse his approval on facts, that is to say, on reachbg a conclusion that the action of the management was improper or invalid. Mathew J., speaking for himself and one of us, Chandrachnd J. (as he then was) observed : "It was argued for the petitioners that clause ( 1) (b) of s.51 A has the effect of vesting in the Vice-Chancellor a general power of veto on the right of the management to dismiss a teacher. The exact scope of the power of the Vice Cha-:icellor or of the officer of the University authorised by him in this sub-section is not clear. If the purpose of the approval is to see that the provisions of sub-section 5 IA(l) (a) are complied with, there can possibly be no objection in lodging the power of approval even in a nominee of the Vice-Chancellor. But a'n uncanalised power without any guidelbe to withhold approval would be a direct abridgement of the right of the management to dismiss or remov•e a teacher or inflict any other penalty after conducting an enquiry." The Learned Judge then proceeded to observe : terminate "The relationship between the management and a teach•er is that of all employer and employee and it passes cme's understanding why the management cannot services of a teacher on the basis of the contract of employ ment. Of course, it is open to the State in the exercise of its regulatory power to require that before the services of a teacher are terminated, he should be given an opportu..'1ity of being heard in bis defeilce. But to require that for termi nating the services of a teacher after an inquiry has been conducted, the management should have the approval of an outside agency like the Vice-Chancellor or of his nominee would be a'a abridgement of its right to administer the edu cational i'nsti tution. No guidelines are provided by the legis- ( J . • ' / LILLY KURIAN v. LEWINA (Sen, J.) 841 lature to the Vice-Chancellor for the exercise of his power. The fact that the power can be delegated by the Vice-Chan cellor to any officer of the University means that any petty officer to whom the power is delegated can exercise a general pow;:r of veto. There is no obligation under the sub-sections (! )(b) and 2 (b) that the Vice Chanc~lor or his ':lominee should give any reason for disapproval. As we said a blanket power withO'Ut any guideline to disapprove the action of the management would certainly encroach upon the right of the management to dismiss or terminate the services of a teacher after an enquiry." He was of the opinioa that such a provision constitutes a direct abridgement of the right of the management to dismiss or remove a teacher or inflict any other penalty, after conducting an enquiry. Dissenting, two of the other Judges, namely Beg. and Dwivedi, J. struck a discordant note. Beg J. (as he then was) observed : "Section SI A of the Act appears to me to lay down general conditions for the dismissal, removal, reduction in rank and termination of services of members of the staff of all colleges to which it applies. Again, we have not to con sider here either the wisdom or unwisdom of such a provi sion or the validity of any part of section SIA of the Act on the grouad that it violates a'ny fundamentrll right other than the ones ·conferred by Art. 30(1) of the Constitution." Dwivedi J. sta~~d : "The purpose of s. SIA is to check this kind of misuse of the right to fire an employee. So the Vice-Chancellor's power of approval is not unguided and unreasonable. After the Chancellor, the Vice-Chancellor is the next highest officer It should be presumed that in granting or of the University. withholding approval 'he would act according to reason and justice'. When the matter goes before the Vice-Chancellor for approval, both the management and the teacher or the mem ber of the non-teaching staff should be heard by him. Hear ing both parties is necessarily implied, because without hear ing either of them it will be difficult for him to make up his mi'.nd whether he should grant or withhold approval to the action proposed by the managing body of the educational It would also.follow that while granting approval instituti()';l. A B c D E F G H \ 1 . ' 842 SUPREME COURT REPORTS l 19791 I s.c.R. A or disapproval, the Vice-Chancellor should record reasons, for the exercise of his power is subject to control by courts. The statute does not make his order final, and courts would surely nullify his order if it is arbitrary, ma/a fide or illegal."' • c D E F An analysis of the judgments in St. Xaviers College's case (supra) clearly shows that seve'n out of nin~ Judges held that the provisions contained in clauses (b) of sub-sections (1) and (2) of section SIA of the Act were not applicable to an educational institution established and managed by religious or linguistic minority as they interfere with the disciplinary control of the management over the staff of its educa- tional institutioos. The reasons given by the majority were that the power of the management to terminate the services of any member of the teaching or other academic and non-academic staff was based on the relationship between an employer and his employees and no encroachment could be made o;i this right to dispense with their ser vices under the contract of employment, which was an integral part of the right to administer, and that these provisions conferred on the Vice-Chancellor or any other officer of the University authorised by him, uncanalised, ungnided and umimited power to veto the action6 of the management. According to the majority view, the conferment of such blanket pow;:r on the Vice-Chancellor and his nominee was an infringement of the right of administratioo guaranteed under Art. 30(1) to the minority institutions, religious and linguistic. The majority was accordingly of the view that the provisions contained in clauses (b) of sub-sections (1) and (2) of section 51A of the Act had the effect of destroying the mi;:iority institutions's disciplinary control over the teaching and non-teaching staff of the college as no punishment could be inflicted py the management on a member of the staff unless it gets approval from an outside authority like the Vice-Chancellor er an officer of the University authorised by him. On the cootrary, the two dissenting Judges were of the view that these provisions were per missive regulatory measures. The power of appeal conferred on thoo Vice-Chancellor under G Ordinance 33 ( 4) is not only a grave encroachment on the institution's right to enforce and ensure discipline in its administrative affairs but it is uncanalised and unguided in the sense that no restrictioos are placed on the exericise of the power. The extent of the appellate power of the Vice-Chan<Xllor is not defined; and, indeed, his powers are unlimited. The grounds on which the Vice-Chancellor can inter- fere in such appeals are also not defined. He may not only set aside reinstatement, but an order of dismissal of a teacher and order his may also interfere with any of the punishments enumerated in it~ms- H I " • • , I ILLY KURIAN I'. LEWINA (Sen, J.) S4J (ii) to (v) of Ordinance 33(2); that is to say, he can even interfere I'n the absence of any against the infliction of minor punishments. guidelbes. it cannot b.: held that the power of the Vice-Chancellor under Ordinance 33 ( 4) was merely a check on maladministration. A .. !; l l As laid down by the majority in St. Xavitrs College's case (supra), such a blanket power directly interferes with the disciplinary control of the managing body of a minority education institution over teachers. The majority decision i·a St. Xaviers College's case square ly applies to the facts of the present case and accordingly it must be held that the impugned Ordinance 33(4) of the University of Kerala If the conferment is violative of Article 30 ( 1) of tl1e Constitution. of such power dn an outside authority like the Vice-Chancellor, which while maintaining the formal character of a minority institutiaa d<IB troys the power of administration, that is, its disciplinary control, is held justifiable because it is in the public and national interest, though not in its interest as an educational institution, the right guaranteed by Article 30 ( 1) will be, to use the well-known expression, a 'teasing illusion', a 'promise of unreality'. A distinction is, homver, sought to be drawn between the provi (2) of section sions contained in clauses (b) of sub-sectiaa (1) a'nd 51A of the Gujarat Univernity Act, 1949 which provided that no penalty could be inflicted on a member of the teaching staff without the prior approval of the Vice-Chancellor or his nominee, and that contained in Ordinance 33 ( 4) which comers on the Vice-Chancellor the power to hear an appeal against an order of dismissal. It is said that while a provision making the prior approval of the Vice Chancellor a condition precedent against dismissal, removal or reduction in rank of an employee creates a fetter on the exercise of a disciplinary the employer undoubtedly has, the provision comerring on the Vice-Chancellor a power to hear an appeal leaves the power of the employer untouched. We are afraid, the distinction tried to be drawn is without any basis. control, which •• We must, accordingly, hold that Ordinance·33(4), Chapter LVll of tlle Ordinances framed by .the Syndicate of the University under section 19(J) of the Kerala University Act, 1969 would not be applicable to a'n educatio:aal institution established and managed by a religious or linguistic minority like St. Joseph's Training College for Women, Ernakulam. c D E F G Incidentally, the Kerala University Act, 1969 has been repealed by the Kerala University Act, 1974, which has come into force with H effect from August 18, 1974. Section 65 of that Act confers power constitute a'<l Appellate Tribunal. Any on the Government 844 SUPREME COURT REPORTS [1979] 1 s.c.R. A B c D E F teacher aggrieved by an order in any disciplinary proceedings taken against him may under section 60(7) appeal to the Appellate Tri bunal and th~ Appellate Tribunal may, after giving parties an oppor tunity of beiag heard, and after such further inquiry as may be necessary, pass such orders thereon as it may deem fit, including an order of reinstatement of the teacher concerned. Section 61 of the the management Act provides that (i) pending disputes between of a private college and any teacher relating to the caaditions of service are to be decided under and in accordance with the provisioll'S of the Act, and (ii) past disputes of such nature which have arisen after August 1, 1967, and had been disposed of before the com the management or the teacher mencement of the Act, shall, applies to the Appellate Tribunal i'n that behalf withi·a thirty days of the commencement of the Act, be accordance with the provisions of the Act. We have been informed that the appellant has filed an appeal before the Appellate Tribullal, Kerala under section 61 (a) of the Kerala Univernity Act. 1974. We refrain from making a·ay observation with regard to that appeal. We wish to say that the validity of sections 60(7), 61 and 65 was not in question before us, and so we express no opinion in regard theretQ. reopened and decided The result, therefore, is that the appeals fail and are dismissed. The judgment of the High Court setting aside the two orders of the Vice-Chancellor of the University of Kerala dated October 19, 1970, is upheld though on a different grou:ad, namely, the Vice-Chancellor under Ordinance 33 ( 1) and ( 4) had no power to entertain appeals from the impugned orders of dismissal or suspension of the appellant. The costs shall be borne by the parties throughout as incurred. We are thankful to Sri M. K. Ramamurthi, who appeared as an amicus curiae for the appellant, for the able assistance he has re-a 1 dered. ' P.H.P. Appeals dismissed. S49SCl/78-2500 6-4-79-GIPF.