text stringlengths 5 5.67k |
|---|
The right of a minority community to establish and administer educational institutions of their choice was subject matter of decision by this Court in more than one case. Ratio |
In Rev. Sidhajbhai Sabhai vs State of Bombay, Shah J. (as he then was) speaking for the Court, negatived an argument advanced on 835 behalf of the State that a law could not be deemed to be unreasonable unless it was totally destructive or annihilative of the right under Article 30(1), stating: "The right established b... |
Unlike the fundamental freedoms guaranteed by article 19, it is not subject to reasonable restrictions. PRE |
It is intended to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their own choice. PRE |
The right is intended to be effective and is not to be whittled down by so called regulative measures conceived in the interest not of the minority educational institution, but of the public or the nation as a whole. PRE |
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 interest, though not in its interest as an educational institution, the right guaranteed by article 30(1) will be but a 'teasing illusion... |
" The learned Judge then went on to say: "Regulation which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as a minority institution effective as an educational institution. PRE |
Such regulation must satisfy a dual test the test of reasonableness, and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it. PRE |
" Unlike Article 19(1) the fundamental freedom under Article 30(1) is absolute in terms; it is not made subject to any reasonable restrictions of the nature the fundamental freedoms enunciated in Article 19 may be subjected to. Ratio |
All minorities, linguistic or religious, have by Article 30(1) an absolute right to establish and administer educational institutions of their choice; and any law or executive direction which seeks to infringe the substance of that right under Article 30(1) would to that extent be void. Ratio |
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 upon the exercise of this right. PRE |
836 The fundamental freedom is to establish and to administer educational institutions : it is a right to establish and administer what are in truth educational institutions, institutions which cater to the educational needs of the citizens, or sections thereof. PRE |
Regulation made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like may undoubtedly be Imposed. PRE |
Such regulations are not restrictions on the substance of the right which is guaranteed; they secure the proper functioning of the institution, in matters educational." PRE |
In Rev. Father W. Proost & Ors.vs The State of Bihar & Ors.(1) Hidayatullah C.J. while dealing with Articles 29(1) and 30(1), said : "In our opinion, the width of Article 30(1) cannot be cut down by introducing in it considerations on which article 29(1) is based. PRE |
The latter article is a general protection which is given to minorities to conserve their language, script or culture. PRE |
The former is a special right to minorities to establish educational institutions of their choice. PRE |
This choice is not limited to institution, seeking to conserve language, script or culture and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities. PRE |
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 given case. PRE |
" 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 Kerala vs V. Rev. Mother Provincial observed: "Administration means 'management of the affairs ' of the institution. PRE |
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 the interests of the community in general and the institution in particular will be best served. PRE |
No part of this management can be taken away and vested in another body without an encroachment upon the guaranteed right. PRE |
There is, however, an exception to this and it is that the standards of education are not a part of management as such. PRE |
These standards concern the body politic and are dictated 837 by considerations of the advancement of the country and its people. PRE |
Therefore, if universities establish syllabi for examinations 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 of employment of teachers and the health and hygiene of students. PRE |
Such regulations do not bear directly upon management as such although they may indirectly affect it. PRE |
Yet the right of the State to regulate education, educational standards and allied matters cannot be denied. PRE |
The minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions, or under the guise of exclusive right of management, to decline to follow the general pattern. PRE |
While the management must be left to them, they may be compelled to keep in step with others. PRE |
" Projection of the minorities is an article of faith in the Constitution of India. Ratio |
The right to the administration of institutions of minority 's choice enshrined in Article 30(1) means 'management of the affairs ' of the institution. Ratio |
This right is, however, subject to the regulatory power of the State. Ratio |
Article 30(1) is not a charter for maladministration; 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 ... |
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. Ratio |
The Vice Chancellor has the power to veto its disciplinary control. Ratio |
There is a clear 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 |
The conferment of such wide powers on the Vice Chancellor amounts in reality, to a fetter on the right of administration under Article 30(1). Ratio |
This, it seems to us, would so affect the disciplinary control of a minority educational institution as to be subversive of its constitutional rights and can hardly be regarded as a 'regulation ' or a 'restriction ' in the interest of the institution. Ratio |
In St. Xaviers College vs 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 section 51A of the Gujarat University Act, 1949 were violative 838 of Article 30(1). Ratio |
Section 51A(1)(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 Chance... |
Similarly, clause (b) of sub section (2) requires that such termination should be approved by the Vice Chancellor or any officer of the University authorised by the Vice Chancellor in this behalf. Ratio |
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. ARG |
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 regulatory measure. Ratio |
These contentions were upheld by the majority. Ratio |
While seven Judges who constituted the majority upheld the provisions of clauses (a) of sub section (1) and (2) of section 51A, as they provided for a reasonable 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 ... |
To appreciate the point involved, we may refer to certain passages of the judgment. Ratio |
In dealing with the question, Ray C.J., with whom Palekar, J. agreed, observed: "In short, unlimited and undefined power is conferred on the Vice Chancellor. PRE |
The approval of the Vice Chancellor may be intended to be a check on the administration. PRE |
The provision contained in section 51A, clause (b) of the Act cannot be said to be a permissive regulatory measure inasmuch as it confers arbitrary power on the Vice Chancellor to take away the right of administration of the minority institutions. PRE |
Section 51A of the Act cannot, therefore, apply to minority institutions. PRE |
" The provision for approval of the Vice Chancellor was held to be bad because it acted as a check on administration. Ratio |
Further, it was 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. Ratio |
Jaganmohan Reddy J., speaking for himself and for Alagiriswami J. agreed with the opinion of Ray C.J. PRE |
In explaining the extent of regulatory control, Khanna J. stated : "Although disciplinary control over the teachers of a minority educational institution would be with the governing council, regulations, in any opinion, can be made for ensuring proper conditions of service of the teachers and for securing a fair proced... |
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. PRE |
Such a provision would also eliminate a potential cause of frustration amongst the teachers. PRE |
Regulations made for this purpose should be considered to be in the interest of minority educational institutions and as such they would not violate article 30(1). PRE |
" He accordingly upheld the validity of clause (a) stating : "Clause (a) of sub sections (1) and (2) of section 51A 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 institution would consequently be ... |
" 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 University authorised by him to veto the action of the managing body of an educational institution in awarding punishment to a member of the staff, in my opinion, interfere wit... |
It is significant that the power of approval conferred by clause (b) in each of the two sub sections of section 51A on the Vice Chancellor or other officer authorised by him is a blanket power. Ratio |
No guide lines are laid down for the exercise of that power and it is not provided that the approval is to be withheld only in case the dismissal, removal, reduction in rank or termination of service is mala fide or by way of victimisation or other similar cause. Ratio |
The conferment of such blanket power on the Vice 840 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 managing body to administer an educational institution. Ratio |
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. Ratio |
" It was held that clause (b) interferes with the disciplinary control of the managing body over its teachers. Ratio |
The provision does not restrict its operation in cases of mala fides or victimisation, etc. Ratio |
In other words, the power of the Vice Chancellor was complete. Ratio |
He could refuse his approval on facts, that is to say, on reaching a conclusion that the action of the management was improper or invalid. Ratio |
Mathew J., speaking for himself and one of us, Chandrachud J. (as he then was) observed : "It was argued for the petitioners that clause (1)(b) of s.51A has the effect of vesting in the Vice Chancellor a general power of veto on the right of the management to dismiss a teacher. PRE |
The exact scope of the power of the Vice Chancellor or of the office of the University authorised by him in this sub section is not clear. PRE |
If the purpose of the approval is to see that the provisions of sub section 51A(1) (a) are complied with, there can possibly be no objection in lodging the power of approval even in a nominee of the Vice Chancellor. PRE |
But an uncanalised power without any guideline to withhold approval would be a direct abridgement of the right of the management to dismiss or remove a teacher or inflict any other penalty after conducting an enquiry." PRE |
The Learned Judge then proceeded to observe: "The relationship between the management and a teacher is that of an employer and employee and it passes one 's understanding why the management cannot terminate the services of a teacher on the basis of the contract of employment. PRE |
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 opportunity of being heard in his defence. PRE |
But to require that for terminating the services of 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 an abridgement of its right to administer the educational institution. PRE |
No guidelines are provided by the legis 841 lature to the Vice Chancellor for the exercise of his power. PRE |
The fact that the power can be delegated by the Vice Chancellor to any officer of the University means that any petty officer to whom the power is delegated can exercise a general power of veto. PRE |
There is no obligation under the sub sections (1)(b) and 2(b) that the Vice Chancellor or his nominee should give any reason for disapproval. PRE |
As we said a blanket power without 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." PRE |
He was of the opinion 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. Ratio |
Dissenting two of the other Judges, namely Beg, and Dwivedi, J. struck a discordant note. Ratio |
Beg J. (as he then was) observed: "Section 51A 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. Ratio |
Again, we have not to consider here either the wisdom or unwisdom of such a provision or the validity of any part of section 51A of the Act on the ground that it violates any fundamental right other than the ones conferred by article 30(1) of the Constitution. Ratio |
" Dwivedi J. stated: "The purpose of section 51A is to check this kind of misuse of the right to fire an employee. Ratio |
So the Vice Chancellor 's power of approval is not unguided and unreasonable. Ratio |
After the Chancellor, the Vice Chancellor is the next highest officer of the University. Ratio |
It should be presumed that in granting or withholding approval 'he would act according to reason and justice '. Ratio |
When the matter goes before the Vice Chancellor for approval, both the management and the teacher or the member of the non teaching staff should be heard by him. Ratio |
Hearing both parties is necessarily implied, because without hearing either of them it will be difficult for him to make up his mind whether he should grant or withhold approval to the action proposed by the managing body of the educational institution. Ratio |
It would also follow that while granting approval 842 or disapproval, the Vice Chancellor should record reasons, for the exercise of his power is subject to control by courts. Ratio |
The statute does not make his order final, and courts would surely nullify his order if it is arbitrary, mala fide or illegal. Ratio |
" An analysis of the judgments in St. Xaviers College 's case (supra) clearly shows that seven out of nine Judges held that the provisions contained in clauses (b) of sub sections (1) and (2) of section 51A of the Act were not applicable to an educational institution established and managed by religious or linguistic m... |
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 on this right to dispense with their services und... |
According to the majority view, the conferment an such blanket power on the Vice Chancellor and his nominee was an infringement of the right of administration guaranteed under article 30(1) to the minority institutions, religious and linguistic. Ratio |
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 minority institutions disciplinary control over the teaching and non teaching staff of the college as no punishment could be inflicted by the manag... |
On the contrary, the two dissenting Judges were of the view that these provisions were permissive regulatory measures. Ratio |
The power of appeal conferred on the Vice Chancellor under 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 restrictions are placed on the exercise of the power. Ratio |
The extent of the appellate power of the Vice Chancellor is not defined; and, indeed, his powers are unlimited. Ratio |
The grounds on which the Vice Chancellor can interfere in such appeals are also not defined. Ratio |
He may not only set aside an order of dismissal of a teacher and order his reinstatement, but may also interfere with any of the punishments enumerated in items 843 (ii) to (v) of Ordinance 33(2); that is to say, he can even interfere against the infliction of minor punishments. Ratio |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.