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The definition of "teacher" in section 2(j) of the Act is wide enough to take in a Principal, as any 'other person imparting instruction '. STA |
Section 5(viii) confers power on the University to affiliate to itself colleges within the State in accordance with the conditions to be prescribed in the statutes regarding management, salary and terms of service of members of the staff, and other such matters, and to withdraw affiliation from colleges. STA |
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. STA |
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 b... |
" The Kerala University Act, 1957 was repealed by the Kerala University Act, 1969 which came into force with effect from February 28, 1969. FAC |
Section 75(2) of the Act provides that the statutes, ordinances, rules and byelaws in force immediately before the commencement of the Act shall, in so far as they are not inconsistent with its provisions, continue to be in force unless they are replaced. STA |
The material provisions of Ordinance 33, Chapter LVII of the Ordinances framed by the Syndicate under section 19(g) are as follows: "33(1) Suspension: The management may at any time place a teacher under suspension where a disciplinary proceedings against him is contemplated or is pending. STA |
He shall be paid subsistence allowance and other allowances by the management during the period of suspension at such rates as may be specified by the University in each case. STA |
The teacher shall have right to appeal against the order of suspension to the Vice Chancellor of the University within a period of two months from the date on which he receives the order of suspension. STA |
(2) Nature of penalties: The following penalties may for good and sufficient reasons be imposed on a teacher by the Management: (i) Censure. STA |
(ii) Withholding of increment. STA |
(iii) Recovery from pay of any pecuniary loss caused to the institution/monetary value equivalent to the amount of increment ordered to be withheld. STA |
(iv) Reduction to a lower rank in the seniority list or to a lower grade or post. STA |
(v) Dismissal from service. STA |
The Management shall be the Disciplinary Authority in imposing the penalties. STA |
X 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 passed by the management in respect of the penalties referred to in items (ii) to (v). STA |
Such appeal shall be submitted within a period of 60 days the appellant receives the order of punishment. STA |
" The expression "conditions of service" covers a wide range, as explained by the Privy Council in N.W.F. Province vs Surai Narain which was approved by this Court in State of U.P. vs Babu Ram. Ratio |
These decisions and also a later decision of this Court in State of M.P. & Ors.vs Shardul Singh have made it clear that the expression conditions of service ' includes everything from the stage of appointment to the stage of termination to service and even beyond, and relates to matters pertaining to disciplinary actio... |
Thus, the expression 'conditions of service ' as explained in the decisions of the Privy Council and of this Court includes the power to take disciplinary action. Ratio |
The rules regarding these matters are contained in Chapter LVII of the Ordinances. Ratio |
The Management of a private college under Ordinance 33(2) is constituted the appointing and the disciplinary 829 authority in respect of imposition of punishment. Ratio |
In 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. Ratio |
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. Ratio |
The High Court was, however, wrong in two ways. Ratio |
Firstly, it fell into an error in holding that the Vice Chancellor while exercising the appellate powers under Ordinance 33(4), had not the power to direct reinstatement of a teacher or grant a declaration that his dismissal was wrongful. Ratio |
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 33(1) and (4), in the matter of suspension and dismissal, was not violative of the rights of religious minorities under article 30(1) of the Constitution. Ratio |
Under Ordinance 33(1), a teacher placed under suspension, has a right of appeal against the order of suspension to the Vice Chancellor. Ratio |
Under Ordinance 33(4), a teacher shall be entitled to appeal to the Vice Chancellor against any order passed by the management in respect of penalties referred to in items (ii) to (v) of Ordinance 33(2). Ratio |
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. Ratio |
The conferment of a power to hear an appeal necessarily invests the appellate authority with the power to annul, vary or set aside the order appealed from. Ratio |
Such power is incidental to or is implied in, the power to hear an appeal. Ratio |
It necessarily has the power to grant an appropriate relief. Ratio |
Indeed, the extent of the appellate power under Ordinance 33(4) is not defined. Ratio |
When a teacher is dismissed from service, the Vice Chancellor can not only direct reinstatement but also modify the nature of Punishment. Ratio |
The whole matter is at large before him. Ratio |
In V. Rev. Mother Provincial vs State of Kerala (supra) a Full Bench of the Kerala High Court while dealing with section 56(4) of the Kerala University Act, 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 pulls and pressure... |
In that view, it held that sub section (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 the interests of the 830 institution, that it can hardly be justified either as a regulation of, or as a reasonable restriction... |
Incidentally, it observed: "Though the appeal lies not, as one would have expected, to a judicial or quasi judicial tribunal but to an executive body which, having regard to its composition, would hardly be able to produce what is ordinarily called a speaking order." PRE |
The High Court has read more into the Full Bench decision than there is, and from the mere observation that the proper remedy against any abuse of the disciplinary power would be an appeal, seem to assume that a provision like Ordinance 33(4) would not affect the right guaranteed to a minority under Article 30(1), in m... |
On the contrary, the Full Bench observed: "The Vice Chancellor can hardly be expected to have the time to deal with such matters, and in any case, the long delay that will necessarily be involved would, by itself render the managing body 's powers of disciplinary control largely ineffectual. PRE |
" It is contended on behalf of the appellant that the right to administer guaranteed by Article 30(1) of the Constitution does not carry with it a 'right to maladminister '. ARG |
It is urged that while autonomy in administration means right to administer effectively and to manage and conduct the affairs of the institution, the University will always have a right to see that there is no maladministration. ARG |
If there is maladministration, the University must take steps to cure the same. Ratio |
The right to administer is, therefore to be tampered with regulatory measures to facilitate smooth administration. Ratio |
Regulations which will serve the interests of the students, regulations which will serve the interests of the teachers are of paramount importance under good administration. Ratio |
Regulations in the interest of efficiency of teachers, discipline and fairness in administration are necessary for preserving harmony among affiliated institutions. Ratio |
It is urged that if the State has any role to play in the system of general education, its power cannot be confined merely to the laying down of a prescribed standard of education for minority educational institutions but should also extend to all necessary measures to secure an orderly, efficient and sound administrat... |
Once the role of the State in the system of general education is properly understood its regulatory power over the minority educational institutions, it is submitted, would depend upon the nature or type of the educational institutions set up by a minority and all other relevant factors, and no universal or general tes... |
The degree of permissive State control must depend upon the circumstances of each case. Ratio |
The right under Article 30(1) forms part of a complex and inter dependent group of diverse social interests. Ratio |
There cannot be any perpetually fixed adjustment of the right and those social interests. Ratio |
They would need adjustment and readjustment from time to time and in varying circumstances. Ratio |
Undoubtedly, the management of a minority institution could not be displaced by the regulatory measure. Ratio |
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. Ratio |
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. Ratio |
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 guaranteed rights under Article 30(1) with social, national or educational values sought to be regulated or protected by t... |
It has to be kept in mind that today the education has to be so designed which would subserve not only the well being of the citizens in the intellectual, ethical and financial spheres but would inculcate amongst them a senses of individual and social consciousness to contribute to the welfare and prosperity of an egal... |
It is, therefore, urged that Ordinance 33(4). ARG |
Chapter LVII of the Ordinances farmed by the Syndicate under s.19(j) of the Act is not violative of Article 30(1) as it seeks to ensure justice and fair play to the teachers against arbitrary actions of the management. ARG |
It is next urged that the Vice Chancellor, while exercising his appellate power under Ordinance 33(4) is indeed clothed with the State 's inherent judicial power to deal with disputes between the parties and determine them on the merits, fairly and objectively. ARG |
It is urged that the contention that the impugned order passed by the Vice Chancellor under Ordinance 33(4) affects the fundamental rights of minority religious institutions under Article 30(1), is based on a complete misconception about the true nature and character of judicial process and of judicial decisions. ARG |
If this basic and judicial aspect of the judicial process is borne in mind, it is submitted, it would be plain that the decision given by the Vice Chancellor cannot be said to affect the fundamental rights guaranteed under Article 30(1). Ratio |
The remedy for a person aggrieved by the decision of a competent judicial tribunal is to approach for redress a superior tribunal, if there be one. Ratio |
832 Lastly it is urged that the rights of the religious and linguistic minorities in respect of their educational institutions, however, liberally construed, cannot be allowed to dominate every other fundamental rights, directive principles of State policy and broad ideals of the Constitution. Ratio |
Article 30(1) enables the minorities to establish and administer educational institutions of their choice but it is said they cannot be entitled to exact unjustifiable preferential or discriminatory treatment for minority institutions so as to obtain benefits but to reject obligations of statutory rights. Ratio |
We fail to see the relevance of these submissions while adjudging the validity of Ordinance 33(1) and (4) in the light of Article 30(1). Ratio |
The appellant, who appeared in person, supplemented the arguments 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 tantamount to negation of the State 's regulatory power to prevent or cure the abuse of powe... |
She urged that the religious, cultural and linguistic minorities though deserve a generous and sympathetic treatment, cannot at the same time be absolved of their obligations to conform to the norms of natural justice and fair employment. ARG |
In assailing the view of the High Court, learned counsel for the 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. ARG |
In a private college, the appointing and disciplinary authority is the management. ARG |
Ordinance 33 relating to the service conditions of teachers in private colleges authorises the management to take any disciplinary proceedings. Ratio |
The University has no power to interfere into the administration of the college or into the disciplinary action taken against a member of the staff. Ratio |
The creation of an appellate authority like the Vice Chancellor, which is an outside agency, itself is an illegal abridgment of the right of management enshrined in Article 30(1). Ratio |
That apart, directing a dismissed Principal, who is the academic head of the college, to hold office against the wishes of the founders of the college without specific power in that regard, is an anathema to the right of administration guaranteed by Article 30(1) of the Constitution. Ratio |
If the Vice Chancellor were to have power of reinstatement of a dismissed teacher, the result would be, in effect, appointing a person against the will of the founders of the institution. Ratio |
The conferment of such a power on the Vice Chancellor is destructive of the right of management. Ratio |
In support of the contention 833 that Ordinance 33(1) and (4) were violative of Article 30(1), reliance was placed on the decision in Ahmedabad St. Xaviers College Society & Anr.vs State of Gujarat & Anr.Learned counsel for the interveners contends that the interposition of an outside authority like the Vice Chancellor... |
Under Ordinance 33(4) the Vice Chancellor has the power to veto its disciplinary control. Ratio |
There is complete interference with the disciplinary power of the minority institution. Ratio |
The State may 'regulate ' the exercise of the right of administration, but it has no power to impose any 'restriction ' which is destructive of the right itself. Ratio |
In matters relating to discipline, the process of decision must be left to the institution. Ratio |
There is direct interference with this right. Ratio |
The post of principal is of pivotal importance in the life of a college, around whom wheels the tone and temper of the institution, on whom depends the continuity of its traditions, maintenance of discipline and the efficiency of its teaching. Ratio |
The character of the institution depends on the right choice of the principal by the management. Ratio |
The right to choose the principal is perhaps the most important facet of the right to administer a college. Ratio |
In the same way, the right to dispense with the services of the principal is an equally important facet of the same right. Ratio |
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 be considered as a violation of the right warranted under Article 30(1). Ratio |
Learned counsel appearing for the State of Kerala, however, while conceding that conferral of arbitrary and unguided powers on an outside agency like the Vice Chancellor, would be destructive of the right of management under Article 30(1), contends that the power of the Vice Chancellor under Ordinance 33(4) to hear an ... |
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 mala fide or where the order of dismissal is a nullity or where the management has acted in breach of the rules of natural justice. Ratio |
When so read, it is urged, that the conferment of the right of appeal to the Vice 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(1). Ratio |
Article 30(1) of the Constitution provides: 834 "30.(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. STA |
" It is clear beyond doubt that Article 30(1), though couched in 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. Ratio |
Though this Court has consistently recognized this power of the State as constituting an implied limitation upon the right guaranteed under Article 30(1), the entire controversy has centred around the extent of its regulatory power over minority educational institutions. Ratio |
In re the Kerala Education Bill, 1957(1), section R. Das, C.J. explained the content of the right under Article 30(1) of the Constitution, in these words: "We have already observed that Article 30(1) gives two rights to the minorities, (1) to establish and (2) to administer educational institutions of their choice. PRE |
The right to administer cannot obviously include the right to maladminister. PRE |
The minority cannot surely ask for aid or recognition for an educational institution 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 subversive of the welfare of the sch... |
It stands to reason, then, that the 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 ensure the excellence of the institutions to be aided." PR... |
Thus, a contention based on the absolute freedom from State control of the minorities ' right to administer their educational institutions was expressly negatived in this case. Ratio |
The Court clearly laid down a principle, namely, a regulation, which is not destructive or annihilative of the core or the substance of the right under Article 30(1), could legitimately be imposed. Ratio |
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