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C.B.C.i. Society Vs. University - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 19067 of 1981
Judge
Reported inILR1985KAR855
ActsKarnataka State Universities Act, 1976
AppellantC.B.C.i. Society
RespondentUniversity
Appellant AdvocateS.G. Sundaraswamy, Adv.
Respondent AdvocateG.V. Shantharaju, Adv.
Excerpt:
karnataka state universities act, 1976 - statutes governing recruitment and conditions of service of teachers and grant of affiliation -- st. john's medical college, a minority institution and petitioners entitled to protection under article 30 of constitution -- statutes laying down approval of syndicate, university or vice-chancellor invalid - regulatory statutes enuring to benefit of proper administration made in the interest of minority institution valid.;applying the principles laid down by the supreme court, the validity of each of the statutes has beea held as hereunder :;(a) validity of statutes governing recruitment and conditions of service of teachers - section 2(h)(d)(i): [dr.k.bhakthavatsala,j] public authority - co-operative bank-held, merely because registrar of.....orderrama jois, j.1. the petitioners in this writ petition have challenged the constitutional validity of several provisions of the statutes framed by the bangalore university in exercise of its power under the provisions of the karnataka state universities act, 1976 ('the act' for short).2. the material averments made in the petition are as fol-lows: the first petitioner is a society named catholic bishops' conference of india society (c.b.c.i. society) for medical education. this is a society registered under the karnataka societies registration act on 7-2-1961. it is a denominational organisation of the christians which is a religious minority in this country. the object of the society, inter alia, was to establish a medical college, as indicated in the memorandum of association and.....
Judgment:
ORDER

Rama Jois, J.

1. The Petitioners in this Writ Petition have challenged the constitutional validity of several provisions of the Statutes framed by the Bangalore University in exercise of its power under the provisions of the Karnataka State Universities Act, 1976 ('the Act' for short).

2. The material averments made in the Petition are as fol-lows: The first Petitioner is a society named Catholic Bishops' Conference of India Society (C.B.C.I. Society) for Medical Education. This is a society registered under the Karnataka Societies Registration Act on 7-2-1961. It is a denominational organisation of the Christians which is a religious minority in this country. The object of the society, inter alia, was to establish a Medical College, as indicated in the Memorandum of Association and the rules annexed thereto (vide Annexure-A). The second Petitioner is St. John's Medical College ('the College' for short) established by the first Petitioner. The third Petitioner is the Dean of the second Respondent-College. The second Petitioner being aneducational institution established by the first Petitioner for the benefit of a religious minority is entitled to the protection guaranteed under Article 30(1) of the Constitution. The Bangalore University, which was formerly constituted under the Bangalore University Act, 1964, and was re-established under the Karnataka State Universities Act, 1976, has framed Statutes regulating the service conditions of the teachers on 13-1-1981 (Annexure-G) and the Statutes governing conditions of affiliation to the University, on 23-2-1981 (Annexure-H). These statutes have been made applicable to all the affiliated colleges of the Bangalore University including the 2ndPetitioner-College. Notwithstanding the constitutional guarantee against interference in respect of administration of the colleges established by religious or linguistic minorities guaranteed under Article 30 of the Constitution, the Bangalore University has treated minority institution established by the 1st Petitioner just like all other affiliated colleges. The University had no power to frame and apply the statutes, the validity of which has been challenged in the Petition in so far it related to educational institutions established by linguistic or religious minorities. As the University was threatening to enforce the provisions of the statutes, it has become necessary for the Petitioners to challenge the constitutional validity of the statutes.

3. The University has filed statement of objection resisting the Petition. The stand taken by the University may be summarised thus: In the Memorandum of Association (Annexure-A), there is no declaration or indication that the college was established for the benefit of Christians. The only indication available in the Memorandum of Association and the Rules annexed thereto is that the signatories to the Memorandum of Association were all Christians. The Rules annexed to the Memorandum of Association would show that not only Christians, but also non-Christians could become members of the governing body. Unless there was clearindication in the Memorandum of Association that the first Petitioner-Society proposed to establish a college for the benefit of Christians, notwithstanding the fact that all the signatories to the Memorandum of Association were Christians or that the majority of the members of the governing body were Christians, the second Petitioner-College would not be entitled to invoke the protection given under Article 30 of the Constitution. Alternatively, even on the basis that the second Petitioner is an institution established by and for the benefit of the religious minority, namely, the Christians, theimpugned statutes are all regulatory in character and there-fore do not come into conflict with Article 30 of the Constitution.

4. Having regard to the pleas of the Petitioners and the University, the following questions arise for consideration :

(i) Whether the second Petitioner-College is established by and for the benefit of Christians and consequently entitled to invoke the protection of Article 30 of the Constitution? and

(ii) If the management of the 2nd Petitioner-College is entitled to the protection under Article 30 of the Constitution, whether all or any of the statutes, the validity of which are challenged in this Petition, are invalid on the ground that they come into conflict with Article 30 of the Constitution?

5. I shall now proceed to consider the first question:

(i) A printed copy of the Memorandum of Association and of the Rules is filed as Annexure-A to the Petition. Article 3(a) of the Memorandum of Association indicates that one of the objects of the Society was to establish a Medical College. The signatories to the Memorandum of Association, at the time of registration of the first Petitioner-Society, who were seven in number, were Archbishop of Bombay, Banga-lore, Madras, Nagpur, Verapoly, Ernakulam and Changana-cherry. The name of the Society, as indicated earlier is C.B.C.I. Society which means 'Catholic Bishops' Conference of India Society.'

(ii) The Rules annexed to the Memorandum of Association indicate that three categories of membership is provided for, namely:

(a) Ordinary members,

(b) Honorary members, and

(c) Ex-officio members.

According to the Rules, only Christians could become ordinary members. The governing body has the option to invite men of eminence to become honorary members. The Dean of Colleges and Directors of Administration etc, are to be ex-officio members.

(iii) The composition of the governing body according to Rule 17 is that 7 members should be elected by the ordinary members, 2 from among honorary members and a few ex-officio members. In the composition of the executive committee also the ordinary members have precedence. Three members of the governing body who are ordinary members could become members of executive committee. At the General meetings of the society only ordinary members alone have the right to vote (Vide Rule 32). In thecomposition of the Governing Council of an institution established by the Society, only an ordinary member who is also a member of the Governing body could be the Chairman. These provisions gives the clearest indication that the Society is an association of Christians and that the and Petitioner-College was established by the Society - an association of Christians who constitute a religious minority in the country.

6. Learned Counsel for the University, however, contended that the mere fact that an educational institution was established by a religious or linguistic minority was insufficient to invoke the provisions of Article 30 and that unless it was proved that the institution was established for the benefit of a specified minority, the protection of Article 30 of the Constitution was unavailable. I consider it unnecessary to go into this controversy, for the reason that there is over-whelming material to indicate that the 2nd Petitioner - College was established by Catholic Christians for the benefit of Christians.

7. This Petition was heard along with another Writ Petition Number 10480 of 1981 Reported in I.L.R. 1984(2) KAR 1320 in which the Petitioner therein has questioned the validity of termination of his service by the College and in which a separate order is also being pronounced today. The Petitioners therein also haspleaded that the College was not entitled to invoke Article 30 of the Constitution as it was not an institution established for the benefit of Christians. I shall refer to some of the documents produced in that Petition also.

8. The College was established as early as in the year 1963. At that time, the Bangalore University was not in existence. The colleges in the city of Bangalore came within the jurisdiction of the Mysore University. Therefore, the 2nd Petitioner - College made an application to the Mysore University seeking affiliation. In the course of consideration of that application certain clarifications were sought for by the Mysore University through the letter of its Registrar dated 12-10-1963 (Annexure-14 in WP 10480 of 1981) I.L.R. 1984 (2) KAR 1320. The said letter reads:

XXX XXX XXX'I am directed to request you to furnish immediately information on the following points :

1. Whether the admission to the St. John's Medical College is open to all Communities or it particular group of Communities or Religion or Section or whether any reservation is made for certain Communities or Religion. If so, what is the percentage and basis?

2. Whether such reservations have been incorporated in the Rules and Regulations of the College?

3. Number of application received indicating the name of the student, Country/States and Community.

4. The total number of admissions made to the Pre-Professional Course in Medicine during 1963-64. A list of admission made may be furnished in the enclosed Pro forma.

5. Whether the selection made is on purely merit basis by holding a written competitive test or any other extra-curricular activities are also taken into consideration for selection.

6. Whether any capitation foe is collected from students who are given admission.

An immediate reply is requested.

Yours faithfully,

Sd/

Registrar.'

In reply to the said letter, the first Petitioner sent a reply dated 15-10-1983 (Annexure-15.)

XXX XXX XXX'I thank you for your letter No. R2-183/63-64 dated the 9th/10th October 1963.The various particulars asked for therein are set out below and in the appendices to this letter.

1. The College is primarily destined for Catholics, but is open to all. irrespective of race, caste or creed. For the current year, the Management has decided that admissions should be grouped under two categories, namely. [i] Catholics, [ii] Non-Catholics, and the percentage of Catholics to Non-Catholics has been fixedapproximately at 80:20. Accordingly, in a total of 50 admissions made for the Pre-professional Course in Medicine, 41 are Catholics and 9 are Non-Catholics.

2. In the Prospectus of the College for 1963-64,, the following provision has been made:

'Though the College is primarily destined for Catholics, yet like other educational institutions under Catholic auspices, it is open to all, irrespective of caste, creed and nationality.'XXX XXX XXX2. We trust that the information furnished will be found satisfactory and the grant of affiliation will be communicated 10 us as soon as possible. It will be appreciated that for want of this communication, we are handicapped in securing several facilities for the College, e.g., exemption from Customs duties for the equipment which has to be imported within the next few months for 1st MBBS Course of the College.'

In the above letter it was made absolutely clear that the College was being established mainly for the benefit of Catholic Christians and that out of the total intake of the College, 80 per cent of the seats were ear-marked for Catholic Christians and only 20 per cent for others. It is thereafter the Mysore University granted affiliation by its letter dated 8th January 1964 (Annexure-16). It reads :

NOTIFICATION'In exercise of the powers conferred under Section 44A of the Mysore University Act, 1956, the Government of Mysore are pleased to sanction affiliation of the St. John's Medical College, Bangalore, to the Mysore University for teaching the Pre-profession Course in Medicine, for the academic year 1963-64 only, subject to the condition laid down in the Report of Che Local Inquiry Committee.'

As stated in Annexure-15 in W. P. No. 10480 of 1981, I.L.R. 1984 (2) KAR - 1320, the Prospectus of the College for 1963-64 contained a specific paragraph indicating that the College was primarily established for the benefit of Catholics though it was open to all, irrespective of caste, creed and nationality. Thisparagraph is being repeated in the Prospectus of the College published for all the academic years thereafter. In the face of such overwhelming material, the contention urged on behalf of the Bangalore University that the second Petitioner-College was not an educational institution established for the benefit of Christians is untenable. It is significant that at an earlier stage the Bangalore University itself had conceded that the 2nd Petitioner-College was a minority institution as is evident from the Judgment of this Court in W.A. No. 934 of 1979, D.D. 21-2-1980.

9. In the light of the discussion, I hold that the second Petitioner-College is not only established by the religious minority, namely, Catholic Christians represented by the Catholic Bishops' Conference of India Society, but also established for the benefit of Christians and therefore the Petitioners are entitled to invoke the protection guaranteed under Article (sic) of the Constitution.

10. As far as the 2nd question is concerned, the matter is not resintegra. The validity or non-validity of each of the statutes, the validity of which is challenged in this Petition, is covered by the decisions of the Supreme Court. They are:

1. Re. Kerala Education Bill, AIR 1958 S.C, 956

2. Rev. Father W. Proost -v.- The State of Bihar, : [1969]2SCR73 .

3. State of Kerala -v.- Mother Provincial, : [1971]1SCR734

4. D. A. V. College -v.- State of Punjab, : AIR1971SC1737

5. St. Xaviers College -v.- State of Gujarat, : [1975]1SCR173

6. Lilly Kurian -v.- Sr. Lewina, : [1979]1SCR820

7. All Saints High School -v.- Government of Andhra Pradesh, : [1980]2SCR924

The substance of all the earlier decisions has been summed up by the Supreme Court in the last case, viz., All Saints High School case at paragraph 65. It reads:

'65. Thus, on an exhaustive analysis of the authorities of this Court and the views taken by it from time to time during the last two decades on various aspects, shades and colours, built-in safeguards, guarantees, scope and ambit of the fundamental right enshrined in Article 30(1), the principles and proposition that emerged may be summarised as follows :

1. That from the very language of Article 30(1) it is clear that it enshrines a fundamental right of the minority institutions to manage and administer their educational institutions which is completely in consonance with the secular nature of our democracy and the Directives contained in the Constitution itself.

2. That although unlike Article 19 the right conferred on the minorities is absolute, unfettered and unconditional but this does not mean that this right gives a free licence for maladministration so as to defeat the avowed object of the Article, namely, to advance excellence and perfection in the field of education.

3. While the State or any other statutory authority has no right to interfere with the internal administration or management of the minority institution, the State can certainly take regulatory measures to pro-mote the efficiency and excellence of educational standards and issue guidelines for the purpose of ensuring the security of the services of the teachers or other employees of the institution.

4. At the same time, however, the State or any University authority cannot under the cover or garb of adopting regulatory measures tend to destroy the administrative autonomy of the institution or start interfering willy nilly with the code of the management of the institution so as to render the right of the administration of the management of the institution concerned nugatory or illusory. Such a blatant interference is clearly violative of Article 30(1) and would be wholly inapplicable to the institution concerned.

5. Although Article 30 does not speak of the conditions under which the minority educational institution can be affiliated to a College or University yet the Section by its very nature implies that when an affiliation is asked for the University concerned cannot refuse the same without sufficient reason or try to impose such conditions as wouldcompletely destroy the autonomous administration of the educational institution.

6. The introduction of an outside authority however high it may be either directly or through its nominees in the governing body orthe Managing Committee of the minority institution to conduct the affairs of the institution would be completely destructive of the fundamental right guaranteed by Article 30(1) of the Constitution and would reduce the management to a helpless entity having no real say in the matter and thus destroy the very personality and individuality of the Institution which is fully protected by Article 30 of the Constitution. Perhaps there may not be any serious objection to the introduction of high authorities like the Vice-Chancellor or his nominee in the administration particularly that part of it which deals with the conditions of service of the teachers yet such authorities should not be thrust so as to have a controlling voice in the matter and thus overshadow the powers of Managing Committee. Where educational institutions have set up a particular governing body or the Managing Committee in which all the powers vest, it is desirable that such powers should not be curbed or taken away unless the Government is satisfied and if allowed to continue may reduce the efficacy or the use fullness of the institution.'

VALIDITY OF STATUTES GOVERNING RECRUIT

MENT & CONDITIONS OF SERVICE OF TEACHERS:

11. I shall now proceed to consider the validity of each of the statutes, in the light of the ratio of the above decisions. For the sake of convenience, the extract of the statute is typed in different convenient parts and whether considered necessary the portion, the validity of which is challenged, is underlined.

Statute-l

1. (a)

** ** ** **(b) All appointments to the posts of Professors, Readers and Lecturers and' such other teaching posts as may be recognised by the University.

(i) ** ** **(ii) In the unaided private colleges affiliated to the Univesity

1 shall be made only after due advertisements.

II Selection of teachers for appointments to the various cadres in the affiliated colleges shall be made by a dulyconstituted committee approved by the Syndicate including an ex-pert nominee of the University.

Provided temporary vacancies lasting for a period of not than six months may be filled up by the Management

III with the concurrence of the Vice-Chancellor.

Provided further, that the above mentioned procedure shall not be applicable to the promotional vacancies in the aided

IV institutions, wherein the method of recruitment to the promotional vacancies shall be the same as prescribed by the Government from time to time and in the case of unaided institutions in accordance with the rules of recruitment of the college concerned duly approved by the University

The first part in Statute l (b)(ii) of the Statutes requires the affiliated college to make appointments only after due advertisement. The second part provides that selection of teachers for appointments on the staff of an affiliated college has to be made by a duly constituted committee approved by the Syndicate including an expert nominee of the University.

In view of the ratio of the decisions of the Supreme Court the second part of Statute l(b)(ii), which requires the approval of the Syndicate of the University of the selection committee and inclusion of an expert nominee of theSyndicate in the selection committee, is invalid as it constitutes an interference with the right of administration of a minority institution.

The controversy is, however, in respect of the first part. Learned Counsel for the petitioners submit that it was for the petitioners to decide as to whether applications should be invited by open advertisement incurring expenditure or whether they could straight-away appoint a person of theirchoice. Learned Counsel for the University submitted that the statute was essential in the interest of the institution as it enables the management of an affiliated college to select best persons in the interest of its own institution which could be done only on consideration of comparative merit ofcandidates applying for the post and that could happen if only there is open advertisement.

I fail to see how the above provision could be considered as an interference with the right of administration. It is purely regulatory and is in the interest of the minorityinstitution itself, as it intended to secure the best of teachers-Therefore, I find no substance in the challenge to the validity of that part of the provision.

As regards the two provisos also the underlined portions which require the approval of an outside authority to the temporaryappointment or promotion is enforceable against the Petitioners being inconsistent with Article 30.

Statue-4

4. I The number of posts and status of members of the teaching staff of each Department of a College shall not be less than those prescribed by the University from time to time.

II No new category of teaching posts be created without prior approval of the University.

III No posts shall be abolished except on the discontinuance of the

IV subject concerned or consequent on the reduction in the number of sections due to fall in the strength of students. and with the prior approval of the University.

As far as the first part is concerned, Learned Counsel for the Petitioners submitted that it was for the Petitioners to decide as to the number of posts of Lecturers Readers/ Professors, to be created and the Statute cannot compel the Petitioner - College to create such number of posts as areconsidered necessary by the Bangalore University and that part was inconsistent with Article 30.

I find no substance in the submission. All that the first past of the fourth statute insists is the minimum number of Lecturers/Readers/Professors as the case may, having due regard to the Student/Teacher ratio requirement. It is open for the College to have more number of teachers. Thestatute only requires that an affiliated college must conform to the minimum requirement of teaching staff. This is arequirement in the interest of academic excellence, and is also in the interest of the institution itself. Hence it is valid.

The second part of the fourth statute which provides that no new category of teaching post be created without the prior approval of the University is certainly an interference in the administration of the college. So long the minimum requirement of teaching staff in conformity with the first part of the statute is ensured, if the management of a minority institution considers that more number of teachers should be appointed for better efficiency and it has the necessaryfinancial resources to do so, there is no basis for the University to interfere with any such decision of the management of a minority institution. Therefore, I hold that the second part of the Statute is invalid as violative of Article 30 of the Constitution.

The third part of the fourth statute is complimentary to the first part. As stated earlier, the first part requires the management of a private institution to conform to the mini-mum staffing pattern prescribed by the University. From this, it follows that the management of a private educational institution cannot in the first instance create such number of posts as are required according to the minimum number of posts prescribed by the University and shortly thereafter abolish one or more of such posts. This is also necessary to ensure that no teacher stands removed in the guise ofabolition of posts. Abolition of posts could however be effected in the event of discontinuance of subjects or reduction in the number of students or sections, as the case may be.

The fourth part of the statute which requires the approval of the University, however, amounts to an interference in the administration and, therefore) invalid.

Statute-5 :

5 Every teacher shall be appointed on probation for a period of

I one year, after satisfactory completion of which he shall be con-firmed.

During the period of his probation, the teacher concerned shall be informed of the unsatisfactory performance if any at intervals

II of three months and an opportunity given to him to improve him-self incase of any lapses reported/noticed during the course of performing the duties assigned to him. The probationary period may be extended, if necessary by another year, and if his work is still found not satisfactory his services may be terminated.

III with the approval of the University after giving him one month's notice.

It was strenuously contended on behalf of the Petitioners that the first part of the statute which requires that a teacher shall be appointed on probation is also an interference. I find it difficult to agree. All that the statute prescribes is that a teacher be appointed in the first instance on probation and further gives opportunity to the institution to watch his work during the period of probation and either to confirm or discharge depending upon the assessment regarding his suit-ability. It is in the interest of the institution. This provision gives free hand to the management either to confirm ordischarge a teacher appointed by it. This does not also prevent the management to appoint a teacher on substantive basis in the first instance itself if it so desires.

The third portion of statute which requires the approval of the University for effecting termination of the service of a probationer is an interference in the administration of the college and, therefore, to that extent it is invalid.

Statute-6 : It reads -

6 When the vacancy to which the teacher is appointed is temporary,

I the services may be terminated at the end of the temporary period.

If the vacancy is continued, the same teacher may be continued provided other things are equal and his/her work and conduct are found to be satisfactory.

A temporary teacher shall be given increment, as and when they II accrue, as in the case of a permanent teacher, if the pay is graded one.

There is nothing in the statute which interferes with the administration of the Petitioners. It regulates the service conditions of the temporary teachers and gives option to the management to terminate or retain the service of a temporary teacher. Further it provides for the grant of increments for the service rendered. The Statute constitutes no interference with the right of administration.

Statute-7: It reads :-

7. Increments shall be granted, as and when they accrue,

I and shall not be withheld without the approval of the competent

II authority and University,

III The period of probation shall count for increments.

Learned Counsel for the Petitioners contended that the statute amounts to interference, as it is for the management to decide whether to grant increment or withhold increment. Statute-3 provides that pay-scale of teachers in an affiliated college should not be less than the pay scale for thecorresponding posts in Government Colleges. The validity of that Statute is not challenged. From Statute 3 it follows that when a time scale of pay is sanctioned to the post of a teacher, the teacher holding such post should get increments in the normal course unless it is withheld for good and sufficient reasons, by the order of the competent authority. It is a statuteregulating condition of service of teachers and is in the interest of the institution. However, the II part of the Statute which requires the approval of the University for the with holding of increments constitutes an infringement of the right of administration. Hence unenforceable.

Statute-10: It reads -

10. (a) The services of a teacher in any affiliated college shall not be terminated by the management without the prior approval of the University,

(b) In case of breach of provision contained in Statute 10(a), the University shall recommend the disaffiliation of the institution after observing all formalities as contemplated in the Act, Statutes and Ordinances.

The statute is patently inconsistent with the right conferred on the minorities under Article 30. It is thereforeunenforceable against the Petitioner.

Statutes-11 & 12: They read-

11. The Principal shall be the Head of the College and responsible for the internal administration of the College and shall have all the powers necessary to carry out his/her responsibilities, subject to the control of the management.

12. The seniormost teacher of the respective affiliated college who has the rank of a Professor/Associate Professor or Reader shall ordinarily be the Principal of the College.

This rule can be relaxed by the Syndicate in special cases.

While Statute 11 constitutes no interference with the right of administration, Statute 12 is invalid. (See: Judgment in St. Xavier's College Case, paragraph 182).

Statute-17: It reads-

17. The management on the recommendation of the Governing Body may dismiss a teacher or terminate his services, or impose other punishments for neglect of duty, misconduct, disobedience of orders, indiscipline, inefficiency. However, no order of dis-

1 missal, termination of service or other punishment, shall be imposed on a teacher unless a charge has been framed and an enquiry into the matter is conducted by an impartial body.

II and on the approval of the University

The first part of the Statute is valid and enforceable against the Petitioners. Section 51A(l)(a) and 2(a) of the Gujarat University Act which is similarly worded has been upheld by the Supreme Court in the case of St. Xavier's Collegecase. (See: Paragraphs 193 & 295 of the judgment). (See also; Judgment in Lilly Kurian's case, paragraph - 17).Validity of Section 6 of the Karnataka Private Educational Institutions (Discipline and Control) Act, 1975, which is similarly worded and is also applicable to the St. John's Medical College, has been upheld to be not violative of Article 30 by a Division Bench of this Court in Anjuman Hami-e-Musli-meen Bhatkal -v.- Educational Tribunal, I.L.R. (Karnataka) 1981(1) 304.

The 2nd part which requires the approval of the University for an order imposing any penalty is similar to Section 51A(l)(b) and 2(b) of the Gujarat University Act which were held to be inconsistent with Article 30 in St. Xavier's College Case and therefore unenforceable against the Petitioners.

Statute-18 : It reads-

18. A teacher may be placed under suspension by the management on the recommendation of the Governing Body pending enquiry into his misconduct, etc During the period of suspension, a teacher shall be paid subsistence allowance as per K.C.S. Rs.

In all cases of suspension, final orders shall be passed before the expiry of six months from the date of suspension.

The first part of the statute requires payment of subsistence allowance to a teacher placed under suspension pending inquiry. Learned Counsel for the Petitioners contended that it was for the management to decide as to whether subsistence allowance should be paid or if it has to be paid what should be the quantum of subsistence allowance and, therefore, the statute which requires the payment of subsistence allowance during the suspension of a teacher in accordance with the provisions of K.C.S. Rs- is invalid.

I find no substance in the contention. The provision ensuring payment of subsistence allowance to a teacher during the period when he is placed under suspension duringthe inquiry is a matter regulating the condition of service of the teachers and meant for the benefit of teachers and is also in the interest of institution, for it is only when teachers are ensured of better conditions of service, one can expect teachers to devote their time and energy whole-heartedly in the discharge of their duties. Therefore, I find no substance in the contention that the provision is invalid. In fact a similar provision for the payment of subsistence allowance was held to be valid by the Supreme Court in the case of All Saints High School vide paragraphs 15, 116 and 121.

The second part compels the passing of a final order within six months. It is quite possible that in a given case on account of any practical difficulty and circumstances beyond the control of the management, it might not be possible to complete the inquiry into an alleged misconduct against a teacher placed under suspension within six months. Therefore the 2nd part of the Statute 17 is inconsistent with Article 30 as this would clearly amount to an interference with the right of the administration.

The object of the Rule no doubt is to ensure time bound disposal of the inquiry. However, the condition for payment of subsistence allowance during suspension, in my opinion, constitutes sufficient safeguard and check against unnecessary prolongation of suspension. Hence, I hold that the first part of Statute-18 is valid and enforceable against the Petitioners and the 2nd part is unenforceable against the Petitioners.

Statute-19: It reads -

19. All cases of suspension and punishment shall be reported to

I the University forthwith.

An appeal can be made to the Vice. Chancellor against the

II order of dismissal, within thirty days from the date of receipt of the orders by the aggrieved party. The decision of the Vice-Chancellor thereon shall be final.

There is nothing in the first part which interferes with the right of administration of a minority institution. It onlyrequires that the University should be informed about the placement of teachers under suspension and also imposition of penalty. This is essential for the reason that teachers of affiliated colleges are also eligible for being entrusted with the work of setting up of question papers and/or valuation. Such information would enable the University to avoid for such work, teachers who have been placed under suspension or on whom any penalty has been imposed.

The second part of the statute is, however, invalid as it confers a right of appeal to an outside authority and there-fore, in view of the ratio of the judgment of the Supreme Court in the case of St. Xaviers College (vide paragarph 193), it amounts interference with the right conferred under Article 30 of the Constitution and, therefore, unenforceable against the Petitioners. The provision is also similar to Section 8 read with Section 10 of the Karnataka PrivateEducational Institutions (Discipline and Control) Act 1975 which was held to be inapplicable to a minority institution (See: Anjuman Hani -e- Muslimeen Bhatkal's case at pages 313 to 316).

Statute-20 : It reads -

20. (a) The age of retirement of a teacher shall be sixty years,provided however, that the management may retire a teacher on his attaining the age of superannuation as may be prescribed by the Government from time to time for Government aided colleges.

(b) If a teacher is due to retire in the middle of the academic year, he/she may be retained till the end of the academic year.

The validity of this statute was not challenged in the Petition in the first instance. After the commencement ofhearing of this and other Writ Petitions of teachers who were prematurely removed from service, an amendment of the Petition questioning its validity was sought for and granted.

Learned Counsel for the Petitioners vehemently attacked the validity of this statute. He submitted that even if a teacher was appointed by the management of a minority institution on a permanent basis, it had always the right to terminate his services after reasonable notice as, may be set out in the contract of service entered into between the management and the teacher concerned and the University had no manner of right to prescribe any age ofsuperannuation.

This question is not res integra. The Supreme Court in the case of D.A.V. college -v.- State of Punjab considered the validity of Clause 18 of Section 19 of Gurunanak University Amritsar Act, 1969. It reads -

'18. Non-Government Colleges shall comply with the requirements laid down in the ordinances governing service and conduct of teachers in non-Government Colleges as may be framed by the University.''Rejecting the contention of the minority institution that the clause which empowered the University to regulate theconditions of service of the teachers was violative of Article 30, the Supreme Court said thus -

'Clause 18, however in our view does not suffer from the same vice as Clause 17 because that provision in so far as it is applicable to the minority institutions empowers the University to prescribe by regulations governing the service and conduct of teachers which is enacted in the largerinterests of the institutions to ensure their efficiency and excellence. It may for instance issue an ordinance in respect ofage of superannuation or prescribe minimum qualifications for teachers to be employed by such institutions either generally or in particular subjects.'In view of the clear pronouncement made as above by the Supreme Court, it is not open to the Petitioners to contend that the University had no right to prescribe the age of superannuation.

Learned Counsel for the Petitioners however submitted that even if such a statute could be framed by the University, it could be only for the purpose of providing that a teacher should not be continued beyond the age of superannuation prescribed by the University and would not be with the purpose of conferring the right on a permanent teacher to continue in service till the age of superannuation, and that if the statute is so construed, he had no objection.

The submission is untenable. Prescription of age of superannuation always serves dual purpose, one is to confer a right on the servant concerned to remain in service till the age of superannuation and another is to provide for the discontinuance of a servant after he reaches the age ofsuperannuation. This rule read with the Rule which prescribes the procedure for determining the service, in this case Sta-tute-17, ensure security of tenure. Fixity, Security (of tenure) and utility are the triple objects of the two rules (See : T.G. Srinivasamurthy -v.- B.E.M.L., 1981(1) LLJ 268 (vide paragraph 45(6) at pp 315 & 316). Thus the Statute is not only meant to confer a right on a permanent teacher to continue in service till the prescribed age of superannuation, but is also intended to provide for discontinuance of a teacher after attaining superannuation subject, however, to the discretionary power of the management to continue till the end of the academic year under Statute 20(h). This Statute read with Statute 17 constitute the most important condition of service which is intended to ensure security of tenure which is absolutely essential for the proper and efficient discharge of duties and with devotion by the teacher by eliminating a sense of in-security of tenure which would, in the absence of such a rule always be haunting the members of the teaching staff which is injurious to the interest of excellence in education. The contention that Rule providing age of superannuation is only for elimination from service after that age and not for retention upto that age defeats the object of this Statute as also Statute 17, for, if there is the right to terminate the service of any permanent teacher before age of superannuation without assigning any reasons, then no management of an institution will take the trouble of holding inquiry as prescribed under Statute 17. Such a right and security of tenure cannot co-exist. The claim for such right is a claim to right to hire and fire a member of the teaching cadre. This it destructive of the security of tenure and of the dignity of the individual and injurious to the interest of excellence ineducation. In this behalf, the observation of the Supreme Court in the case of Lilly Kurian and All Saints High School are apposite. In the case of Lilly Kurian, the Supreme Court observed thus :

''Undoubtedly, the management of a minority institution could not be displaced by the regulatory measure. But the State has a power to regulate through the agency of the University the service conditions of teachers and to 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 thus could ultimately improve the excellence and efficiency of the educational institution.

XXX XXX XXX29. Thus, a contention based on the absolute freedom from State control of the minorities' right to administer their educationalinstitutions was expressly negatived in this case. The Court clearly laid down a principle, namely, a regulation, which is not destructive or annihilative of the care or the substance of the right under Art. 30(1), couldlegitimitely be imposed.'

(Underlined by me)

In the case of All Saints High School, the Supreme Court said :

'I do not think that in the name of discipline and in the purported exercise of the fundamental right of administration and management, any educational institution can be given the right to ' hire and fire ' its teachers. After all,though the management may be left free to evolve administrative policies of an institution, educationalinstruction has to be imparted through the instrumentality of the teachers; and unless, they have aconstant assurance of justice, security and fair play it will be impossible for them to give of their best which alone can enable the institution to attain the ideal of educational excellence.'(Underlined by me)

Paragraph 65(3) extracted earlier also reiterates this position. The security of tenure is always the combined effect of a rule which confer the right on an employee to continue in service till superannuation and the obligation on the part of the employer to determine the tenure earlier to superannuation for good and sufficient reasons after due enquiry. If the rule of superannuation is interpreted as not conferring a right to continue till that age, not only that rule becomes purposeless, but also the rule (in this case Statute-17) which prescribes the mandatory requirement of an inquiry before terminating the service of a teacher would be futile, for the management could without taking the trouble of holding inquiry, at its sweet will and pleasure, terminate the service. It is for this reason, a termination of service of a permanent employee, before superannuation, though innocuously worded, isregarded per se punishment (See : Purushothamlal Dhingra -v.- Union of India, : (1958)ILLJ544SC . Therefore, I hold that Statute 20(a) which fixes the age at or after which the management could retire a teacher and which thereby confers a right on every teacher to continue in service till he is so retired, is not violative of Article 30.

Statute-21 : It read :-

21 The management shall institute a Contributory Provident Fund

I Scheme for the permanent teachers of the College.

The contribution to the Fund shall be at such rates as may beII approved by the University.

Provided the management shall adopt such other schemes

III advantageous to the teachers that the Government might intro-duce from time to time.

Learned Counsel for the Petitioners cont ended that the above Statute compels the management to introduce a ContributoryProvident Fund Scheme for the benefit of permanent teachers and it was for the management of a minority institution to decide as to whether such a scheme should be introduced and,therefore, the above Statute amounts to an impermissible interference in the right of management of a minorityinstitution. In support of the above submission, Learned Counsel relied on the judgment of the Gujarat High Court in Benson Enock Samual -v.- State of Gujarat, : AIR1984Guj49 . Learned Counsel for the petitioner pointed out that in the said decision, clause 13(2) of Schedule-F to the Bombay Primary Education Rules, which provided for payment of compensation to a teacher upon termination of his service calculated on the basis of the number of years of service put in by him, but not exceeding 12 months' salary, was held to be unenforceable against the minority institution on the ground that it was violative of Article 30. With great respect to Their Lordships of the Gujarat High Court, I am unable to agree with the said view. The payment required to be made as terminal benefits whether in the nature of gratuity or retrenchmentcompensation or to have a contributory provident fund, are in consider-ation of the past service rendered by the employee/teacher concerned and are measures to assure a teacher that he and/or members of his family, as the case may be, would have some financial resource to fall back, after termination of service or retirement or death while in service. They are humane provisions for future economic security introduced as part of conditions of service which are regulatory incharacter and are within the permissible limits and do not impinge upon the right guaranteed under Article 30. Existence of such a provision constitutes a great incentive to teachers to serve the institution with devotion when they are in service and is certainly in the interest of the institution also. Refusal to have such a provision also tantamounts to maladministration of the institution. Therefore, the first part which requires thePetitioner to introduce a Contributory Provident Fund Scheme for permanent teachers is valid.

The second part, however) which requires the approval of the University to such rules-is invalid.

The third part, i.e., the proviso only gives the option to the Petitioners to introduce any other scheme which is advantageous to teachers. Therefore, it is no interference in the right of management.

VALIDITY OF STATUTES CONCERNING GRANT OF AFFILIATION :

12. The Petitioners have also challenged the validity of the Statutes which are prescribed as conditions of affiliation. The decisions of the Supreme Court (1 to 7) establish that the valuable right guaranteed to minorities under Article 30 cannot be taken away in the guise of imposing conditions for affiliation of the institutions established by a minority, to a University or for recognition by the Government. Petitioners have challenged the validity of Statutes 3, 7, 8 and 10.

Statute-3. It reads: -

'3. The applications should further contain the following undertakings :

a. That the conditions specified in Section 53 of the K.S.U. Act and such other conditions as might be laid down by the Syndicate and the Academic Council shall be fulfilled by the management :

b. That the Principal of the College and two Senior members of the staff duly satisfying the qualifications laid down by the University that behalf, shall be appointed before the end of March next ;

c. That for the appointment as Principal of the college only a person who is himself a teacher of the rank of Reader or Professor shall be chosen ; and

d. That the teaching staff appointed in the College shall be such as will fulfil the qualifications laid down in the Ordinances in force from time to time and that no person who has reached the age of 60 years shall be appointed as a teacher'.

Clause (a) requires the Petitioners to comply with the conditions specified in Section 53, and such other conditions as might be laid down by the Syndicate or Academic Council. It is not inconsistent with Article 30 for, any particular provision which is inconsistent with Article 30 would be unenforceable against the Petitioners. Subject to this, the clause is valid.Clause (b) of the Statute applies only to a new College and does not apply to the Petitioners. Clause (c) and (d) prescribe the conditions of eligibility for appointment as Principal and teachers. Such a provision is valid.

Statutes 7, 8 and 10 : They read -

7. A College affiliated to the Bangalore University shall fulfil the following conditions in addition to those conditions specified in Section 53 of the Karnataka State Universities Act, 1976.

a. Every affiliated college shall have a duly constituted governing body consisting of not more than 15 persons approved by the Syndicate including among others, atleast three representatives of the teaching staff of whom the Principal of the College shall be one and two representatives of the Bangalore University as may be provided for by the Ordinances.

Provided that a college maintained by the Government shall have an Advisory Committee consisting of such number of members not exceeding 15 as the Government may determine of whom at least three shall be the teachers in the College including the Principal and two shall berepresentatives of the University.

b. The College shall abide by the Statutes, Ordinances and Regulations of the University framed from time to time.

8. The conditions of service of teachers in the college affiliated to the Bangalore University shall be governed by the Statutes framed by the University in this behalf under Section 67(3) of the Karnataka State Universities Act, 1976.

10. The affiliation granted to a College by the University may be withdrawn in whole or in part or modified if the college has failed to comply with of the any provisions of the conditions of affiliation inaccordance with Section 56 of the Karnataka State Universities Act'.

30

In view of the ratio of the Judgments of the Supreme Court (1 to 2) Statutes 7(b) and 9 are valid. This is however subject to the condition that only such statutes which are held valid are to be obeyed by the Petitioners and only disobedience of such valid statutes could constitute the basis for withdrawal of the affiliation.

In the result, I make the following orders.

I. The Writ Petition is allowed in part. A direction shall issue to the respondent. University not to enforce the whole or part of the statutes held to be unenforceable against the Petitioners vide paragraphs 11 & 12 of this order.

II The Writ Petition in so far it relates to the validity of other statutes, other than those held unenforceable against the Petitioners, is concerned, it is dismissed.

III No Costs.


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