Ps e'Hfioner Respcndenfs 5ta1’e of Chhamsgarh & what's. And. WRIT PETITION (C) NO. 2291 OF 2008 Pefi‘l’ioners Nirmal Vice Provica of Jagdalpur» Vs Respondents Sta’re of Chha'rrisgarh & anofher. ORDER FOR CONsIDRATION ‘ Dhirendra M1Si1ta Judge HON'BLE MR. RAJEEV GyPTA, CJ // / , 3 WI sal— cme£ Jnst‘ce PosT Fan onbaz 0N2 2>z-2ooa ‘ Sdl— chief Justice / HIGH COURT OF CHHATTIsGARH AT BILASPU R PER ETIUON Vs. RESPONDENTs . 5mm of Chha’rTisgar‘h, Through The ecre‘rar‘y, Deparfmen’r, Manfralaya, Higher Educa’rion Raipur (CG). .P‘r. Ravishankar' Shukla Universify, Raipur‘ Through The RegisTr'ar‘, Raipur‘ (C.G.)., . The Direc’ror', Sfa’re Educa’rion Research and Training Councii, Shankar Nagar, Raipur, Dist Raipur (CG) & PE'ITIONERS WRIT PETITION (C) NO.2291/2008 . Nirmai Vice Provice of» Jagdalpur 'rhrough ifs Secretary Father MaThew Kunnel, aged 44 years, R/o Nirmal Sadan, Dharampur‘a, Jagdalpur, Dist Basfer. 2. Chrisf College, Jagdalpur, ’rhrough i’rs In-charge Principal Fa’rher Abraham Kannampala, aged 44 years, having office af Geedam Road, Jagdalpur‘, DisT. Bas’rar. Vs. Sfa’re of Chhaf’risgarh, Through— The Secre’rary, Higher ' Educa’rion Deparfmem‘, Manfralaya, Raipur (CG). 2. Pf. Ravishankar Shukla ‘Univer'sify, Through fhe RESPONDENTS S . Registrar, Raipur, Q’sf. Raipur (C.G.).The Direc’ror, Stm‘e Education Research and Mr. N.K. Agarwal, Deputy Advocate General. For respondenf No.1-Sfa‘re. Mr. Vinay Pundey, Advocafe : For respondenf No.2-Pf. Ravi ShankarShukla Universify. (Passed onQ3" LRLaEi July, 2008) D hirendra Mishra, J 1. The above wrif pe'rifions are being disposed of by This common order as The question of law involved in both these petitions is common. However, for the purpose of this order facts, as mentioned in W.P. (c) No.831/08 are being referred. 2. The petitioner college, which is an unaided college and recognized as minority institution by the State Minority Commission, is affiliated to respondent No.2-University. Respondent No.2 University is established under the provisions of M.P. Vishwa Vidh‘yalay Adhiniyam, 1973 (for short ‘the Adhiniyam') and it is also a recognized university under the University Grants Commission. Respondent No.2 exercising the powers under the Adhiniyam has framed Statute-28, College Code. Case of the petitioner is that provisions of the‘ Statute-28, which are inconsistent with the rights created in favour of the minority institutions, cannot be enforced as against the minority institutions. , 3. Respondent No.2— University in the purported exercise of powers conferred under Statute—28 directed the petitioner college to furnish details of meetings of the governing body‘ \ \ Training Counci’, Shankar Nagar, Raipur, Dis’r. Raipur‘ (C.G.) Present Mr‘. 3.5. Kulkar‘ni & Mr. V.A. For The pefi’rioner's in bo’rh Goverdhan, Advoca’res. : The pefi’rions. including ’rhe number of meefings in which nominees of The responden’r No.2— University parficipafed. IT was fur‘Ther direcfed Thai provisions of Sfa‘rufe-28 are To be complied wifh by 9.10.2006 anddeiails of appoin’rmenf of fhe Principal & teachers were soughf along wiTh defails of Their salaries. By anoTher infernal communicafion daied 19.6.2007 (Annexure P—8) men’rioning ’rherein fha‘r if The Teachers have noT been appoinTed in accordance wiTh The provisions of STaTuTe-28, in such affiliaTed colleges admissions for The academic year 2007-08 have been prohibiTed and accordingly, The peTiTioner college was direcTed noT To give admissions To The sTudenTs in The firsT year of B.B.A. course. The peTiTioner college vide Annexure P-11 was furTher direcTed To make appoinTmenTs in accordance wiTh The STaTuTe—28. The above direcTions were furTher reiTeraTed vide*Annexures P-12 & P-13 and The peTiTioner college was informed ThaT in view of The ban imposed on The college for granTing admissions To The sTudenTs in The firsT year of B.B.A. course, The nominaTion forms of The sTudenTs, who have been admiTTed, shall noT be accepTed and They shall noT be allowed To appear in The examinaTion. RespondenT No.2- UniversiTy furTher direcTed The peTiTioner college noT To forward examinaTion forms of The sTudenTs admiTTed in The college, as The UniversiTy had imposed ban on admission. Respondem‘ No.2— UniversiTy vide noTice daTed 4.1.2008 (Annexure P-19) called upon The peTiTioner ThaT despiTe ban on admission To firsT year of B.B.A. course in The college, The peTiTioner college violaTing' The orders of The UniversiTy, gave admissions To The sTudenTs To The firsT year and also permiTTed Them To fill-in The examinaTion forms, Therefore, why legal acTion should noT be Taken againsT iT and Three days' 'Time was allowed To reply. However, wiThouT waiTing for reply, The respondenT No.2- UniversiTy cancelled The examinaTion of The sTudenTs of The \ @ peTi’rioner‘ college who appeared in fhe English paper of firs? semes'rer of B.A. course on The some day and 'rhey were fur’rher restrained from appearing in fu’rure examination vide Annexure P—ZO. Affer receiving The above communicafion, The pe’rifioner college vide le’rfer da’red 8.1.2008 (Annexure P—21) informed the respondent No.2- University that the petitioner institute is prepared to withdraw W.P. (c) No.4096/07 filed against the‘University and also to follow the Statute No.28 and other rules & regulations. They also tendered apology vide their letter dated 9.1.2008 (Annexure P-22) for admitting the students in the first year of B.B.A. course. Respondent No.2- University vide their memo dated 1.2.2008 (Annexure P—23) permitted the students of the petitioner college to appear in the annual examination, 2008 as non—collegiate students and further granted special permission to them to seek admission in the second year course as regular students in other colleges. By this order it was declared that the petitioner college shall not be eligible for teaching of 2'“ Semester of B.B.A. course and shall also not admit students in the first year for the academic Session 2008-09 for not following the Statute-28f The petitioner by the instant petition has prayed for following reliefs:- I “7.1 by a writ of mandamus or by a suitable, writ, order or direction, & the decision and action of the respondent No.2 University as per letter date 01.02.2008 (Annexure P- ) may kindly be quashed. 7.2. by a writ of mandamus or by a suitable, writ, order or direction, respondent No.2- University may kindly be directed not to thrust the provisions of statute No.28 (particularly Part II, Part-IV, Clause Nos.17 to 21, "\ d @; Clause No.29 and Part Vi, Clause Nos.30 To 32 upon. The petitioner being in viola‘fion of ar’ricle 30 of The Cons’ri‘ru’rion of India. 7.3. by a wr'i’r of mandamus or by a suiToble, writ, order or ‘f direction, respondent No.2 University be directed to consider the admissions of first year M.A., M.Com,, ‘ B.Com., B.5c., B.B.A., B.C.A. students made in petitioner coHege in the academic year 2007—08 to be valid admissions and to grant enrolment numbers to the students and to permit them to appear for respective examinations as bonafide students of the i‘ petitioner college. 7.4‘ Grant any other relief, which this Hon'ble Court deems fit in the facts and circumstances of the case. That, the Hon'ble Court may kindly be pleased to issue l a writ of mandamus directing the respondent University to accept the affiliation fees from the petitioner of the academic year 2007-08" Respondent No.2, apart from raising preliminary objection that the petitioner has alternative remedy under Section-12 (4) of the Adhiniyam to approach ‘the Kuladhipati for redressal of their grievances, has further averred that Statutes, Ordinances, Regulations or Rules framed by the University does not infringe the rights of minority institutions guaranteed under Article 30 of the Constitution. It has been further stated that since the petitioner institute is affiliated to the university, the regulatory factors, such g as qualification & eligibility for appointment, salary structure of employees, work load, leave etc., are applicable to them. .It/ has been denied that the university and the State Government cannot interfere in the process of admission of students, appointment of employees and the disciplinary / /_ ,I—f—di b \g ) ‘ acfion againS'r the employees. The universify has reiterawd ’rha’r ’rhe pefi‘rioner' ins’ri‘ru‘re isbound To perform wifhin 1'he periphery of provisions of $TaTu’re-28 and i'r is. not open ’ro The ins’ri'ru’re ’ro make appointmen’rs of its own choice. It has been further averred that since the petitioner has himseif confeSSed to the irregularities committed by the institution. and has declared to abide by the provisions of the Statute- 28, it is now not open to the petitioner institution to take a stand that Statute-28 is not binding and the petitioner was coerced to confess the irregularities in the college. Mr. Kulkarni, learned counsel appearing for the petitioner vehemently argued that Article 3O of the constitution gives religious and minority organizations a right to establish educational institution of their choice. It is settled law that the .statutory provisions which regulates the facet of administration like control over educational agencies, control over governing bodiesfconditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and regulations of fee etc. should be minimal and in the matter of day-to-day management, like the appointment of staff teaching’ & non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. Respondent No.2, on the pretext of implementing Statut‘e-28, is interfering in day-to-day affairs of the petitioner college as is evident from various correspondences annexed with this petition which clearly says that the petitioner has been directed to communicate the outcome of meetings of the governing body of the petitioner institution. Part-III of the Statute-28 deals with the governing body ‘lfor the management of colleges and it provides for, \g/b "se appoin‘rmen‘r of Tw representafes of fhe university nomina'red by T Execu’rive Council and also provides for one nominee of The Sfafe. If also prescribes The manner in which The governing body is To be coTiTuTed. IT furThr' deals wiTh The manner in which The vacancy is To be filled—in and lays a duTy upn The college To communcaTe The universiTy every change in The office beare or membership of The Governing body of The college. From bare perusal of The ParT-III of 'The'STaTuTe-28 if wou be evidenT ThaT» Th same confers UniversiTy/STa wiTh an auThoriTy To inTerfere in The maTTers of governing body of an isTiTuTe. Similarly, Para-IV deals wiTh The college council, iT regulaTes mode of iT's consTiTuTion, mode of elecTion/ appoinTmenT of office bearers and duTies of The council. WhereasfClauses 17 To 22 deal wiTh The consTiTuTion of selecTion coiTTee ad appoinTmenT of Principal & Teachers of Te insTiTuTe. ause 9 deals wiTh The TerminaTion of Teachers afTer confirmfion and iT provide TaT same cannoT be done wiThouT The approval of Te execuive commiTTee. Clauses 3O To 32 deals wiTh suspension and penalTies and disciplinary auThoriTy of ny employee or Teacher of The college and iT confers powers To The xecuTive counci To deal wiTh The appeal preerred by The employees/Teachers againsT Th penalTy imposedby The governing ody. Relying on The various judmenTs of he on'ble Supreme CourT iT was argue ThaT dmission of sTudenTs T inoriTy educaTional insTiTuTions, wheTher aided or unaided, cannoT be regulaTed by The STaTe or universiTy conceed where The scope or meriT—baSed selecTion is pracTically nil, excepT for providing The qualificaTions and minimum condiions of eligibiliTy in The inTeresT f academic andards. In case of unaided minoriTy educaTional inTiTuon, regulaTory measures of conTrol for egulaTing adminisTraTion i To be minimal. o iy he‘ ns e o i rs ld e Te n mm n h Cl 2 a h h T a e l f e b g T H d a o m rn f T o sT sTi r s Af‘rer' 1‘he insfi‘ru’re has compliéd with The condi‘rions of recognition as well as condi‘rio‘ns of affilicn‘ion ’ro a universiw, in The maf‘rer‘s of day-fo—day management like appoin’rmenf of s’raff, ”reaching & non-‘reaching, and adminis’rra?ive confrol over fhem, The managemenf has The freedom and There cannoT be any exTernal conTroHing agency. RighT To admiT sTudenTs, To seT-up a reasonable fee sTrucTure, To consTiTuTe a governing body, To appoinT sTaff, Teaching or non-TeaChing, and To Take acTion, if There is derelicTion of duTies on The parT of any of The employees is embodied in The righT To esTabIish an insTiTuTion as implied in ArTicle 30 (1) of The ConsTiTuTion. There cannoT be inTerference in day-To-day adminisTraTion including admission of sTudenTs, recruiTmenT of sTaff and quanTum of fee To becharged. On The oTher hand, learned counsel for respondenT No.2 argued ThaT provisions of STaTuTe-ZS do noT infringe The righTs of minoriTy insTiTuTions. RespondenT No.2 in order To ensure Transparency in The admission and To mainTain sTandard of educaTion in The insTiTuTion direcTed The peTiTioner insTiTuTe To furnish necessary informaTion wiTh respecT To The procedure of appoinTmenT of Teachers. The peTiTioner college insTead of providing informaTion, harped on minoriTy characTer of The insTiTuTe and proTecTion under ArTicle 30 (1) of The ConsTiTuTion in The lighT of The judgmenT of The H'on'ble Apex CourT. Since The peTiTioner insTiTuTe is affiliaTed wiTh respondenT No.2, The respondenT No.2 is well wiThin iTs righT To inTerfere in The admission process and is also duTy bound To ensure ThaT The Teachers employed by The insTiTuTion pos3ess The necessary minimal qualificaTion prescribed by The universiTy in This regard as per STaTuTe-28. When The peTiTioner college failed To respond To The queries of respondenT No.2, The universiTy'was lefT wiTh no oTher opTion buT To declare The irregular, \\ i &@¢@ admISSIons given by The pe‘rmoner college To the smdem‘s, IHegal and accordingly cancelled The examination of English of first semesfer‘ of BBA course vide Annexure P—ZO. To ensure future of The sfudenfs, who were admi‘r’red in The college of The peTiTioner, They were permiTTed in The compuTer class of The universiTy and They were also granTed specie! permission To seek admission i'n The second semesTer of any oTher college. However, The peTiTioner college was resTrained from Taking classes of second SemesTer of BBA course and They were also res’rrained from granTing admission in 15* SemesTer for The year 2008—09 as before. We have heard learned counsel for The parTies. . RighT guaranTeed under ArTicle 3O (1) of The ConsTiTuTion of India To religious and linguisfic minoriTies To esTabIish and To adminisTer educaTional insTiTuTions of Their choice came inTo consideraTion before The Hon'ble Supreme CourT in The maTTer of Frank AnThony Public Schooi Employees' AssociaTion Vs. Union of India and oThers reporTed in AIR 1987 SC 311 and iT has been held ThaT regulaTory measures which are designed Towards The achievemenT of The goal of making The minoriTy educaTional insTiTuTions effecfive insTrumenTs for imparTing educa‘Tion cannoT be considered To impinge upon The righT guaranTeed under ArTicle 30 (1) of The ConsTiTuTion. The .quesTion in each case is wheTher The parTicular measure is, in The ulTimaTe analysis, designed To achieve such goal, wiThouT of courSe nullifying any parT of The righT of managemenT in subsTanTiaI measure. IT has been furTher held ThaT pre3cripTion of pay scales and oTher allowances, medical faciliTies, pension, graTuiTy, providenT fund and oTher preScribed benefiTs of The employees noT To be less Than Those of The employees of The corresponding sTaTus in schools run by appropriafe auThoriTy. IT has been furTher held ThaT The procedure for enforcemenT of above &@@ compe’ren’r sfuff and consequently a’r The exceHence of fhe educational ins’riTu‘rion andWher‘efore, such regulafion are permissible. The managemen’r of a minorify educa‘rioncd ins’rii‘u‘re canno’r be permi’r’red under ’rhe guise of The fundamemal righ‘r guaran’reed by Ar’ric!e 30 (1) ’ro oppress or exploif i’rs employees any more ’rhan any ofher‘ priva‘re v employee. However, if has been olso held 1‘hat provisions which require The prior approval of ’rhe Direcfor for ‘rhe dismissal, removal, reduction in rank or o’rher fermina’rion of service of an employee of o recognized priva're school offends Arf. 3O (1) and hence could no’r be applied fo unaided minori‘ry y schools. In ’rhe maffer of Bihar Sfofe. Madarasa Education Board, Pafna Vs. Managing Commiffee of Madarasa Hanifia Arabic College, Jamalia and ofhers reported in AIR 1990 5C 695 earlier view has been reiterated that minority institutions cannot be allowed to fall below the standard of excellence on the pretext of their exclusive right of management but at‘ the same time their constitutional right to administer their l institutions cannot be completely taken away by superseding or dissolving managing committee or by appointing ad hoc committees in place thereof. . In the matter of T.M.A. Pai Foundation and others Vs. State of Karnataka'and others reported in (2002) 8 SCC 481 the question of scope of right of minorities to establish and administer educational institution of their choice under Article 3O (1) read with Article 29 (2) of the Constitution of India came—up for consideration before the Hon'ble Supreme Court and a Bench of 11 Hon'ble Judges was constituted. The questions'were reframed vide order dated 10.4.2002 in the matter of TM.A.Pai Foundation and others Vs. State of Karnataka and others reported in (2002) 8 SCC 712, The Hon'ble Supreme Court in the matter of T.M.A. Foundation ,.-w WM L \ 11 é@€§ (supr‘a) has answered ’ro ’rhe 11 ques’rions which were framed for consideration. Relevant ques’rions and Their answers by Hon'ble Supreme Cour’r*'for The purposes of preseni' pefi’rion are reproduced hereunder:— "Q.4. Whe’rher ‘rhe admission of sfuden’rs ’ro minori’ry educational ins’ri’ru’rion, whei‘her aided or unaided, can be regulaTed by The S'i‘a’re Government or by the university to which the institution is affiliated? A. Admission of students to unaided minority educational institutions viz. Schools and undergraduate colleges where the scope for merit-based selection is practically nil, cannot be regulated by the State or university concerned, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards. The right to admit students being an essential facet of the right to administer educational institutions ofvtheir choice, as contemplated under Article 3O of the Constitution, the State Government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions. Q. 5. (a) Whether the minorities' rights to establish and administer educational institutions of their choice will include the procedure and method of admission and ‘ selection of students? A. A minority institution may have its own procedure and . me’rhod of admission as well as selection of s’ruden’rs, buf such a procedure mus? be fair: and franspor‘eni, and The seIecTion of s’ruden’rs in professionul/and higher educa’rion colleges should be’on fhe basis of meri’r. The procedure adop’red or selecfion made should no1' be ’ran’ramoun’r To maladminisfrafion. Even an unaided minoriTy insTi’ruTion ough’r noT f0 ignore ’rhe merit of The sfudenfs for admission, while exercising ifs righ‘r fo admi’r students ‘ro fhe colleges aforesaid, as in Thaf even’r, ’rhe insfiTu’rion will fail To achieve excellence. Q. 5. (b) Whe’rher‘ 1’he minorify insfi’ru'rions' righf of admission of sfudenfs and to lay dow‘n procedure and ‘ meThod of admission, if any, would be affecTed in any way by The receipT of STaTe aid? A. While giving aid To professional insfiTuTions, iT would be permissible for The auThoriTy giving aid To prescribe bye—rules or regulaTions, The condiTions on The basis of which admission will be granTed To differenT aided colleges by virTue of meriT, coupled wiTh The reservaTion policy of The STaTe qua non-minoriTy sTudenTs. The meriT may be deTermined eiTher Through a common enTrance TesT conducTed by The universiTy or The Governmenf concerned followed by counSelling, or on The basis of an enTrance TesT conducTed by. individual insTiTuTions—The meThod To be followed is for The universiTy or The GovernmenT To decide. The auThoriTy may also devise oTher means To ensure ThaT' admission is granTed To an aided professional insTiTuTion on The basis of meriT. In The case of such insTiTuTions, iT will be permissible for The GovernmenT or The universiTy To provide ThaT consideraTion should be shown To The weaker secTions of The socieTy. Q.5.(c) WheTher The sTaTuTory provisions which \c 1 3 47A} regulafe The facets of adminis‘rr‘afion Iike confrol over educafional agencies, confrol over governing bodies, conditions of affiliation inciuding recogni‘rion/wi’rhdrawai Thereof, and appointmen’r of sfaff, employees, Teachers and principals including Their service condiTions and reguIaTion of fees, eTc. would inTerfere wiTh The righT of ad minisTraTion of minoriTies? A. So far as The sTaTuTory provisions reguIaTing The ceTs of adminisTraTion are concerned, in caSe of an unaided minoriTy educaTional insTiTuTion, The regulaTory measure of conTrol should be minimal and The condiTions of recogniTion as well as The condiTions of affiliaTion To a universiTy or board have To be complied wiTh, buT in The maTTer of day-To—day managemenT, like The appoinTmenT of sTaff, Teaching and non—Teaching, and adminisTraTive conTroI over Them, The managemenT should have The freedom and There should noT be any exTernaI confrolling agency. However, a raTional procedure for The selecTion of, Teaching sTaff and for Taking disciplinary acTion has To be evolved by The managemenT iTself. For redressing The grievances of employees of aided and unaided insTiTuTions who are subjecTed To punishmenT or TerminaTion from service, a mechanism will have To be evolved, and in. our opinion, appropriaTe Tribunals could be consTiTuTed, and Till Then, such Tribunals could be presided over by a judicial officer of The rank of DisTricT Judge. The STaTe or oTher conTrolling auThoriTies, however, can always prescribe The minimum qualificaTion, experience and oTher condiTions bearing on The meriT of an individual for being appoinTed as a Teacher or a principal of any educaTional insTiTuTion. RegulaTions can be framed governing service condiTions \ fa 14 J for feaching and ofher‘ sfaff for whom aid is provided by ’rhe Sfa’re, wi’rhou? inferfer-ing wiTh The overall odminis’rra‘rive confrol of The manogemen’r over The sfaff. Fees fo be charged by unaided insfi’rufions cannot be regulafed buf no insfi’rufion should charge capifafion fee." 13. A Bench of 7 Hon'ble Supreme Cour’r Judges in fhe maffer of P.A. Inamdar and others Vs. Sfafe of Maharashtra and others reported in (2005) 6 SCC 537, the extent to which the State can regulate the unaided minority or non-minority educational institutions in the matter of admission procedure and fee payable by students to the educational institutions has been considered and it has been held that in the matter of unaided minority institutions which seek only recognition but no aid, “ the rig/1f fa esfab/I'sh and administer educah’ana/ institutions of their choice”must mean the right to establish real institutions which will effectively serve the needs of the community and scholars who resort to these educational institutions. Referring to Para 50 of Pai‘s Foundation (supra) it has been held that ‘right to establish and administer an institution, the phrase as employed in Article 30 (1) of the Constitution, comprise of following rights: (a) to admit students; (b) to set up a reasohable fee structure; (c) to constitute a governing body; (d) to appoint staff (teaching and non-teaching): .and (e) to take action if there is dereliction of duty on the part of any of the employees'. It has been further held that; “Affiliation or recognition by the State or the Board or the university competent to do so, cannot be denied solely on the ground that the institution is a minority educational institution. Howev'er', the urge or need for affiliation or recognition brings in the concept of regulation by way of laying down conditions consistent \ \\ \ gXgl é@ with ’rhe requiremen‘r of ensuring meri'r, exceHence of education and prevem‘ing maladminisfr‘afion. For example, provisions can be made indico‘ring ”the qualify of fhe Teacher's by prescribing The minimum qualificofions tho? They mus‘r possess and ’rhe courses of sfudies and curricula. The existence of infrasfruc’rure sufficienf for i'rs growfh can be sfipulafed as a prerequisife fo The granf of recognifion or affiliation. However, there cannot be interference in the day-to~aay administration. The essential ingredients of the management, including admission of students, recruiting of staff and the quantum of fee to be charged, cannot be regulated." . In the matter of Secy. Malankara Syrian Catholic College Vs. T. Jose and others reported in (2007) 1 SCC 386 laying downthe general