^-^••^^.^^•r^, -^^r-u<T^••^••J^j-^J-^ r'-!'-'\^. n.n/'"-/' .;"..'V\Ay\."-/'-<Q>^".-r>. C - S- . \QOf THE HIGH COURTOF CHHATTISGARH AT BILASPUR W.P^CfNO. ^^ 3^ /2010 PETITIONER ^ ......•- ^-^^- ff^'S^"""" ^•-•^';^ RESPONDENTS /'I. Chhattisgarh Arts 85 Commerce College, Sector 6, Bhilai Dist. Durg (C.G.).( Run 8s Managed by the registered minority society) Through: its President Tahir Khan, S/o. late Ismail Khan, Aged about 61 years R/o. Purani Memorial Society Sector 6, Bhilai Nagar, Distt. Durg(C.G.) VERSUS State of Chhattisgarh, Through Secretary, Higher Education Department, D.K.S. Bhawan, Mantralaya, Raipur (C.G.) ^ 2. Pt. Ravishankar Shukla University, Raipur Through Its Registrar, Raipur (C.G.) WRIT PBTITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF A WRIT IN THE NATURE OF MANDAMUS. PROHIBITION. CBRTIORARI ETC. QR_ANY OTHBR DIREC310N OR ORDER TO DO JUSTICE IN THE MATTER AF-^; HIGH CQUM OF CroiATTISGARH AT BILA8HJI I " ' • ' . ' :.'••; -:. , i",- ' . ' . ; wmt PBtmQN (ONo. 2633 of 2010 PEtlTIONER : Chhattisgarh Arts <fe Cofflmerce fcollege, Scctor 6, fihilai Dist. Durg (C.G.) AESPONDE^TS .VER^US State OfChhattisgafh & atiother. Post for pronouncement oforder on ...<?...^ay ofAugust, 2010. Sd/- SatishK.Agnihom Judge !/, ^ HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION CC) No. 2633 of2010 PETITIONER RESPQNDENTS Chhattisgarh Arts & Commerce College, Sector 6, Bhilai Dist. Durg (C.G.) VERSUS State ofChhattisgarh & another. WRITPETITION UNDERARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Aenihotri. J. Present: 1. Shri Sunil Otwani, Advocate for the petitioner. Shri P.K.Bhaduri, Panel Lawyer for the State/respondent No. ORDER (Delivered on..c(^ day of August, 2010) Heard Shri Sunil Otwani, leamed counsel for the petitioner., Shri P.K.Bhaduri, leamed Panel Lawyer for the State/respondent No. 1. None appears nor is any representation made on behalfofthe respondent No. 2, even afiter entering appearance. 1. The petitioner-college is established by a society namely "Galib Memorial Education Society", Durg, duly registered under the Chhattisgarh Society Registrikaran Adhiniyam, 1973. The petitioner-college is affiliated to the respondent No. 2-University under the provisions of Madhya Pradesh/Chhattisgarh Vishwavidyalaya Adhiniyam, 1973. The petitioner college is a minority institution as certified by the Chhhattisgarh State Commission for Minorities on 30.04.2005 (Annexure P/2). By the impugned order dated 29.05.2010, the petitioner-collegewas not granted permission to admit students for the academic session ^€^ ^y^r";t 'w i '%^,^/ ^-^^ 2010-2011 on the ground that the petitioner-college has not complied with the provjsions ofstatute 27 and 28 ofthe Collegfe Code. 2. Case of the petitionet-college is that the petitiorter-college is a non-govemment aided minority institute and as such, provisians of statute 28 and would not be applicable. The statute No. 28 infiringes upon the Fundaftiental Right ofthe rrijnority instttution, guaraiiteed under Article 30(1) ofthe Constitution oflndia, thus. interference of the regpondent No. 2-University jn day to day affairs such as appointment of teachers, formatjon of college council, appointment of secretary^ procedure to fllling of the vacancies in the governlng body, restriction on transfer of the property of the society, constitution of selection cornmittee for appointment ofthe Principal, Teachers of the college, mode of their appointment, fee, salary scales^ and other conclitions of service and admission to the institute, is violative of fundamental rights of the j3etitioiler-college. The permission to commence academic session 2010-11 has been denied by the impugned order on the ground that the petitioner-college has not complied with the provisions ofstatute 28 ofthe College Code, which, it is well settled principle oflaw., cleai'ly infringes on the fondamental rights ofthe petitioner-college. The petitioner wrofe a letter to the respondent No. 2-Universify on 03.02.2010 showing its willingness that though statute No. 28 is not applicable in the case of tlie petitioner., beltig a minority institution, despite that the petitioner is ready to comply with the statute No. 28 to avoid any confrontation. Thereaftef, on 22.03.2010, another letter was cb°) written by the petitioner raising all his grievances. The respondent-Unlversity, vide order dated 05.05,2010 intimated the petitioner that the inten^iews which were tQ be held on 12.03.2010 and 13.05.2010 would be postponed. Thereafter, the respondent-University passed the ifflpugned order dated 29.05.2010 (AilJiexuteP/1) by which the petitioner was infbrmed that it cannot commence the academic 2010-2011, by admltting the students, notwithstandmg statue No. 28 of the College Code is not applicable to the petitioner-College. Thus, the petitioner has filed this petitlori seeking following reliefs: '''10.1 Issue a suitable writ/direction fot setting a side the impugned order dated 29..05.2010 )asse4 by the respondent No. 1 i.e. Annexure p-1. 10.2 By a writ ofmandamus or by a suitable, writ/ order or direction respondent no. 2 may kindly be directed not to thrust the provisions ofstatus No. 28 (particularly part III, Part-IV, Clause No. 17 to 21, Clause No. 29, and Part VI, clause Nos, 30 to 32) upon the petitioner being in violation of article 30 of the Constitution oflndia. 10.3 By a writ of mandamus or by the suitable, writ, orcler or direction respondent no. 2 University be directed to permit the petitioner to admit students for the academic year 2010- 11 to be valid admission ahd to grant enrolment numbers to the students." 3. In support of his contention, Shri Otwani, would rely cn a decision of Siipreme Court in Frank Anthony Pttblic School Employees' Association v. Union oflndia & Others , LM.A. Pai Foundation & Others v. State of Karnataka & Others2, T.M./L ' 4IR 19S7SC311 :'(2905)^SCC481 ^G .^, Pai Foundation & Others v. State ofKarnataka & Others3, P.A. Inamdar & Others v. State of Maharashtra & Others4, Secy. Malankara Syrian Catholic College v. T.Jose & Others and the judgment and order dated 23.07.2008 passed by a Division Bench of this Court in W.P.(C) No. 831 of 2008 (St. Vincent Palloti College v. State of Chhattisgarh & Others) and W.P.(C) No. 2291 of 2008 (Nirmal Vice Province ofJagdalpur & another v. State of Chhattisgarh & another). Shri Otwani would further submit that the question of law involved in the instant case of identical facts are squarely covered by the judgment and order passed by in the aforesaid cases by the Division Bench ofthis Court. On examination of the pleadings and documents appended thereto, it is evident that the facts ofthe instant case and the facts involved in case of St Vincent Pallotti College (supra) and Nirmal Vice Province of Jagdalpur & another (supra), are identical. The question whether the provisions of statue No. 28 of the College Code are applicable in the minority institution involved in the instant case was under consideration before the leamed Division Bench ofthis Court. Thus, it is not necessary to examine law again in detail. The instant petition is squarely covered by the above stated decision rendered by Division Bench ofthis Court in the aforesaid cases. The leamed Division Bench, after considering all the judgments handed down by the Supreme Court in the aforestated cases, in St. Vincent Pallotti ' (2002) 8 SCC 712 4 (2005) 6 SCC 537 5 (2007) 1 SCC 386 r--- a :^. '^i^^, ^ •:'^ ^ '^,.^'./ °>\ ''^^^^'" .<?.-. College (supra) and Nirmal Vice Province of Jagdalpur & another (suprct), observed as under: "18. Similarly, statue-28 (college code) particularly, Part-III, IV, Clauses 17 to 21, Cl^use 29, Part-VI and Clauses 30 to 32 which prescrlbes procedure for ftppolntment of two represetttatives of the university and one nominee of the Govemmeiit a Members ofthe Goveming Body for managing the college; formation ofcollege council; appointment of secretaty, procedure for fllling the vacancy in the goveming body; frequency of the meeting of goveming body; restriction on transfer ofpropeily ofthe society; constitution ofselection committee for appointment ofPrincipal; teachers of the college and fhe mode of their appointment, guidelines, fees, salary scales of pay and other conditions of service and also flxing forum of redressal of grievances, appointment to the post of Professor, provision insisting fbr requirement of approval of the executive council in the matter of disciplinary action etc., amount to serious mterference with the right ofan un aided minodty mstitution to establish and adminisiter an educational institution of their own choice as guaranteed under Article 30(1) ofthe Constitution oflndia and therefore, the same cannot be enforced by respondent No. 2 on the pretext ofrGsolution of executive council as per Statute-28. 19. Respondent No. 2-University could not have interfered with the right ofthe petitioner college to adjiiit students so long as the admissiori to the unaided education institution is on a transparcnt basis and the merit is adequately taken care of. Similarly, in the matters of appomtineiit of Principal & teaching staff, the University has power to prescribe minimum qualification, experience and other conditions bearing ori the merit of an individual for being appointed as teacher or Principal of the petitioner college and regulations made in this regard can be trarned without interfering with the overall administrative control ofthe nianagement over the staff. 20. Similarly, ih the case ofthe petitioner college, which is a non-aided minority educational institute, conditions for recognition and affiliation can be imposed, liovvever, interference in the matter of appointment of staff teaching and non-teaching body,, administrative control over- them and management ofthe society is not permissible. Even in the mater of redressal of grievances of the ^' e>a- employees of the non-aided petitioner institution^ the respondent No. 2-University cannot interfere as held in the matter ofT.M.A. Pai foundation (supra) and appointment of appropriate tribunal can be insisted upon. 21. In the resultthe petition is allowed in the following terms:-- > Order dated 1.2.2008 of Annexure P-23 is hereby set aside and the respondent No. 2- University is directed to consider the admissions of the students for the academic year 2007-08 in the petitioner college afresh in the light of ttie observatiphs made in this order. > Part-UI & IV ofStatute-28 whieh:- • prescribes for nomination of representative of the university and the State Government in fhe governing body; e interferes with the constitution and functioning ofgoveming body; ® regulates the meeting ofthe governing body; ® imposes conctitions of apprQval of the executive committee in the matters of appomtment, promotion, suspension and punishment ofthe teachers and other staff; > Clause 17 to 21 of the 8tatute~28 which prescribes; • procedure fbr constitution of selection committee for appointment of the Principal andteachers ofthe college and also prescribes that the Committee shall consists of the Kiilpati or his nominee as Chairman; • nominee ofthe Executive Council; • mode of selection, prescribes pay-scales & aniiual increments for differetit categorjes of teachers and Principal. > Clause 29 of the Statute-28 which mandates approval ofthe executive council in the inatter of termination of confu'med teacher and also prescribes conditions for termination and Clause 31, 31 & 32 ofPart-VI ofthe Statute- 28 by which disciplinary proceeding against the teachers or other employee is sought to be regulated, amounts to unreasonable restriction on the administration of the petitioner institute, which is a recognized minority educational institution, and also constitutes inlTingement of their right guaranteed under Article 30(1) ofthe Constitution oflndia and as such, tlic same cannot be enforced against ^^^n /!^^ r M I. •^l^«1 'W i %s:y •^^--^^^" ^ the pelitioner institution by the respondent No. 2-IJniversity. " In view ofthe foregoing, this writ petition is allowed in the same terms. The impugned order dated 29.05.2010 (AnnexureP/1) is quashed. There shall be no order asto costs. Sd/- Satish K. Agnihotri Judge Arnit