Case: Gandhi Faizeam College Shahajahanpur Vs. University Of Agra And Another

Notwithstanding anything contained in sub-section (6), decisions of the managing council shall be taken at meetings on the basis of simple majority of the members present and voting, S.63-Power to regulate the management of private colleges:- (4) If the governing body or managing council, as the case may be,disapproves any decision taken by the University in connection with the management of the private college the matter shall be referred by the governing body or managing council, as the case may be, to the Government, within one month of the date of receipt of the report under subsection (3) who shall there upon pass such order there on as they think fit and communicate the same to the governing body or managing council and also to the University. (6) The manager appointed under sub-section (1) of section 50 shall be bound to give effect to the decisions of the University and if at any time, it appears to the University that the manager is not carrying out its decisions, it may, for reasons to be recorded in writing and after giving the manager an opportunity of being heard, by order remove him from office and appoint another person to be the manager after consulting the educational agency. In the chart aforesaid, we have confined our attention to the management facet of the case but may mention that while in the earlier cases even the power to appoint the principal and staff was controlled, in the instant case it is a refreshing contrast. 39. First the D.A.V . College. He who runs and reads will discover that Statute 2(1) (a) insists upon (a) a limit to the strength of the governing body; (b) the approval of the Senate of the University for the constitution of the governing body; and (c) the inclusion of two representatives of the University as also the Principal of the college ex- officio. To legislate for the governing body a rigid restriction on its members is to deprive the minority of its free play in organising its management. To compel approval by the Senate-an outside instrumentality-before the governing body can have legal status, is a violent violation of Art. 30. To foist two representatives of the University rank outsiders-is again an infringement of the autonomy of the minority institution. The Court, in D.A. V. College case (sup) upheld the complaint of the college authorities thus:"In our view there is no possible justification for the provisions contained in Clauses 2(1)(a) and 17 or Chap. V of the statutes which decidedly interfere with the rights of management of the Petitioners Colleges. These provisions cannot therefore be made as conditions of affiliation, the non- compliance of which would involve disaffiliation and consequently they will have to be struck down as offending Article 30(1)." 40. It is impossible to predicate from the above observations that tills Court regarded as obnoxious the inclusion of the Principal of the very college. On the other hand, the more serious encroachment which caved into the independent management of the College consists in the first three provisions which are deprivation in character. The present case is a graphic contrast. No ceiling on membership; no unbidden guests, nominees of the University fobbed off- on the Managing Committee. The solitary but inconsequential similarity of circumstance that there is reference to the Principal, there and here, cannot approximate the two cases from the constitutional angle at all, what with complete hold on staff appointment in the former and none in the latter. 41. The Kerala Case (supra), as the table above shows, insists on the appointment of the Principal himself being controlled, displaces the minoritys Managing Committee by imposing an admixed governing agency of statutory concoction wresting authority from the minority. A different entity with legislatively limited functions robs the religious group of its right of administration. The distance between the Kerala University Act provisions and those of the Agra University Act is considerable and the constitutional import too obvious for argument. 42. The manacle regulations of the Gujarat University Act are also tell-tale. Its metamorphic impact is best summed up in the terse words of Ray, C.J. The minority character of the college is lost. Ministry institutions became part and parcel of the University. Why Because: The provisions contained in section 33-A(1) (a) of the Act state that every college shall be under the management of a governing body which shall include amongst its members, a representative of the University nominated by the Vice-Chancellor and representatives of teachers, non-teaching staff and students of the college:"In (1971) 1 SCR 734 (State of Kerala v. Very Rev. Mother Provincial) this Court said that if the administration goes to a body in the selection of whom the founders have no say, the administration would be displaced. This Court also said that situations might be conceived when they might have a preponderating voice. That would also affect the autonomy in administration. The provisions contained in section 33-A(1) (a) of the Act have the effect of displacing the management and entrusting it to a different agency. The autonomy in administration is lost. New elements in the shape of representatives of different types are brought in. The calm waters of an institution will not only be disturbed but also mixed. These provisions in Section 33-A(1) (a) cannot therefore apply to minority institutions." (at p. 1399) 43. The features of the Agra University Act vis-a-vis the minority institutions are conspicuously different and leave almost unaffected the total integrity of the administration by the religious group, save in the minimal inclusion of two internal entities namely the principal of their own choice and the senior-most lecturer independently appointed by them. 44. We are satisfied that the regulatory clauses challenged before us improve the administration and do not inhibit its autonomy and are therefore good and valid. 45. We therefore hold that the statute impugned is not vulnerable nor void. The appeal has to be and is dismissed, but without costs in the circumstances of this case. ORDER

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]18. The minority college is administered by a three-tier body organised intramurally by the Society. No outsider has entered the precincts of management which has all along remained with the members only. The General Council with plenary powers, the Governing body more circumscribed yet effective as policy-maker and the Managing Committee, the day-to-day administrative sub-agency-these are the organs vested with controlling power, under the relevant rules of the Society. The essential point is that the Society is that the Society is autonomous and its organs administer the institution,22. If reliance had been placed b y the University on this concession of the Management as amounting to a waiver of the fundamental right, thereby making short shrift of the dispute, it would have been difficult for us to accede, to the plea. Indeed, wisely no plea of waiver of the Fundamental right has been put forward and perhaps none can be, in this branch of constitutional jurisprudence. We are therefore concerned with discerning the parameter of minority right in Art. 3023. A stream of Supreme Court rulings commencing with the Kerala Education Bill Case ([1959] S.C.R. 995.) and climaxed by St. Xaviers College Case(A.I.R. [1974] S.C. 1389.) has settled the law for the present, and the last refers to the procedential past. We will confine ourselves largely to the currently final pronouncement; but where did the Court draw the delicate line between unconstitutional conditions and constitutional-regulations? A certain thread of unanimity exists among the many opinions and that common ground-not individual deviations and different must be the basis of our judgment. Right at the beginning we must observe that the whole edifice of case law on Art. 30 has been bed- rocked on the Kerala Education Bill Case (supra)28. The discussion throws us back to a closer study of Statute 14-A to see if it cuts into the flesh of the Managements right or merely tones up its health and habits. The two requirements the University asks for are that the Managing Body (whatever its name) must take in (a) the Principal of the College; (b) its senior-most teacher. Is this desideratum dismissible as biting into the autonomy of management or tenable as ensuring the excellence of the institution without injuring the essence of the right ? On a careful reflection and conscious of the constitutional dilemma, we are inclined to the view that this case Ms on the valid side of the delicate line. Regulation which restricts is bad; but regulation which facilitates is good. Where does this fine distinction lie? No rigid formula is possible but a flexible test is feasible. Where the object and effect is to improve the tone and temper of the administration without forcing on it a stranger, however superb his virtues be, where the directive is not to restructure the governing body but to better its performance by a marginal catalytic induction, where no external authoritys fiat or approval or outside nominee is made compulsory to validate the Management Board but inclusion of an internal key functionary appointed by the autonomous Management alone is asked for, the provision is salutary and saved, being not a diktat eroding the freedom of the freedomAll the other learned Judges who are party to St. Xavier (supra) and all the earlier rulings have negatived the untouchable absoluteness urged by the managements. Equally fallacious is the simplistic submission which appears to have appealed to the High Court that Art. 30 is disturbed only when the right is destroyed, not when it is damaged. St. Xavier (supra) has dispelled doubts in this behalf: Abridgement of the constitutional rig ht is as obnoxious as annihilation. To cripple is to kill36. The various decisions of this Court where legislative fetters have been struck down are cases in contrast. There, the rules maim; here they improve. There the input upsets the balance; here the addition is minimal and strengthens from within. There, are external mandates to approve; here an internal principal is proposed to be dovetailed to make administration more proficient without injury to independent actionThe Gujarat Case of St. Xavier (supra) is a study in contrast, as stated earlier. Sections 40 and 41 and s. 38 shackled the management, trenching seriously upon the right to administer. The law, as now expounded, regards this excess as unconstitutional37. In all these cases administrative autonomy is imperilled transgressing purely regulatory limits. In our case autonomy is virtually left intact and refurbishing, not restructuring, is prescribed. The core of the right is not gouged out at all and the regulation is at once reasonable and calculated to promote excellence of the institution a text book instance of constitutional conditionsthe chart aforesaid, we have confined our attention to the management facet of the case but may mention that while in the earlier cases even the power to appoint the principal and staff was controlled, in the instant case it is a refreshing contrast39. First the D.A.V . College. He who runs and reads will discover that Statute 2(1) (a) insists upon (a) a limit to the strength of the governing body; (b) the approval of the Senate of the University for the constitution of the governing body; and (c) the inclusion of two representatives of the University as also the Principal of the college ex- officio. To legislate for the governing body a rigid restriction on its members is to deprive the minority of its free play in organising its management. To compel approval by the Senate-an outside instrumentality-before the governing body can have legal status, is a violent violation of Art. 30. To foist two representatives of the University rank outsiders-is again an infringement of the autonomy of the minority institution. The Court, in D.A. V. College case (sup) upheld the complaint of the college authorities thus:"In our view there is no possible justification for the provisions contained in Clauses 2(1)(a) and 17 or Chap. V of the statutes which decidedly interfere with the rights of management of the Petitioners Colleges. These provisions cannot therefore be made as conditions of affiliation, the non- compliance of which would involve disaffiliation and consequently they will have to be struck down as offending Article 30(1)."40. It is impossible to predicate from the above observations that tills Court regarded as obnoxious the inclusion of the Principal of the very college. On the other hand, the more serious encroachment which caved into the independent management of the College consists in the first three provisions which are deprivation in character. The present case is a graphic contrast. No ceiling on membership; no unbidden guests, nominees of the University fobbed off- on the Managing Committee. The solitary but inconsequential similarity of circumstance that there is reference to the Principal, there and here, cannot approximate the two cases from the constitutional angle at all, what with complete hold on staff appointment in the former and none in the latter41. The Kerala Case (supra), as the table above shows, insists on the appointment of the Principal himself being controlled, displaces the minoritys Managing Committee by imposing an admixed governing agency of statutory concoction wresting authority from the minority. A different entity with legislatively limited functions robs the religious group of its right of administration. The distance between the Kerala University Act provisions and those of the Agra University Act is considerable and the constitutional import too obvious for argument42. The manacle regulations of the Gujarat University Act are also tell-tale. Its metamorphic impact is best summed up in the terse words of Ray, C.J. The minority character of the college is lost. Ministry institutions became part and parcel of the University. Why Because:The provisions contained in section 33-A(1) (a) of the Act state that every college shall be under the management of a governing body which shall include amongst its members, a representative of the University nominated by the Vice-Chancellor and representatives of teachers, non-teaching staff and students of the college:"In (1971) 1 SCR 734 (State of Kerala v. Very Rev. Mother Provincial) this Court said that if the administration goes to a body in the selection of whom the founders have no say, the administration would be displaced. This Court also said that situations might be conceived when they might have a preponderating voice. That would also affect the autonomy in administration. The provisions contained in section 33-A(1) (a) of the Act have the effect of displacing the management and entrusting it to a different agency. The autonomy in administration is lost. New elements in the shape of representatives of different types are brought in. The calm waters of an institution will not only be disturbed but also mixed. These provisions in Section 33-A(1) (a) cannot therefore apply to minority institutions." (at p. 1399)The features of the Agra University Act vis-a-vis the minority institutions are conspicuously different and leave almost unaffected the total integrity of the administration by the religious group, save in the minimal inclusion of two internal entities namely the principal of their own choice and the senior-most lecturer independently appointed by them44. We are satisfied that the regulatory clauses challenged before us improve the administration and do not inhibit its autonomy and are therefore good and valid.