Madras High Court

Old No.157 vs The State Of Tamil Nadu on 5 January, 2011

Author:
Vinod K.Sharma

Bench:
D.Murugesan
,
Vinod K.Sharma

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 05/01/2011

CORAM:

THE HONOURABLE MR.JUSTICE D.MURUGESAN
AND
THE HONOURABLE MR.JUSTICE VINOD K.SHARMA

W.P.Nos.34434 & 34435/2007, 14749 & 14750/2007,
12911 to 12914/2007, 23140/2007, 5921/2008, 25268/2008,
498/2009, 30089/2008, 16504 & 16505/2010 and 17334/2010,

The Forum of Minority Institutions and Associations
(Registration No.56 of 1992)
Old No.157, New No.36,
First Floor, Eldams Road,
Alwarpet, Chennai  600 018.
Rep. by its Secretary
Mr.Kailash Mull Dugar .. Petitioner W.P.No.34434 of 2007.

Vs.

1. The State of Tamil Nadu,
Rep. by the Joint Director of Collegiate Education
Chennai  600 006.

2. The University of Madras,
Centenary Building,
Chepauk, Chennai-600 005.
Rep. by its Registrar

3. Thiruvalluvar University,
Fort Campus, Vellore  636 004.
Rep. by its Registrar

4. The Manonmaniam Sundaranar University,
Abishekapatti,
Tirunelveli-627 012.

5. Bharathiar University,
Coimbatore  641 046.

6. The Madurai Kamaraj University,
Rep. by its Registrar, Madurai

7. The University Grants Commission,
New Delhi  110 002.
Rep. by its Secretary

8. Madurai Kamaraj Manonmaniam Sundaranar
University Teachers Association
Rep. by its General Secretary
S.Vivekanandan
No.6, Kakathoppu Street, Madurai

9. Associations of University Teachers,
Rep. by its General Secretary
Nungambakkam, Chennai-34

10. Dr.(Mrs.)C.Joyce Priyakumarai
11. Mr.E.Iyappan
12. Dr.S.Ravi Shankar
13. Dr.T.Johnson Sampathkumar
14. Dr.(Mrs.)Vijayakumari Joseph
15. Dr.(Mrs.)Ananthi Rachel Livingstone
16. Dr.(Mrs.)E.Caroline Victoria
17. Mrs.J.Jeyarathi
18. Mrs.P.Subhasini
19. Mr.M.Rabikumar
20. Mrs.S.Janet Priscilla
21. Mr.P.Selva Singh Richard
22. Mr.R.Daniel
23. Mrs.D.Selvakumari
24. Dr.I.S.Parveen Sultana
25. Ms.Munna
26. Dr.O.Naseema Banu
27. Ms.S.Nazeemunnisa Begum
28. Ms.Mallika Begum
29. Ms.Fathima Nasar
30. Ms.J.Sakina
31. Ms.Sahana Usman
32. Ms.Dhilshath Salahuddin
33. Ms.P.Lalitha
34. Ms.Ummay Rubab.J.
35. Ms.L.Zarnigar Begum
36. Ms.Fathima Azher
37. Ms.Ayesha Saleem
38. Ms.Saira Katheeja
39. Dr.P.E.Akilandeswari
40. Ms.A.Zamara
41. Ms.M.Gulsonbi
42. Ms.Dilaveez Rehana
43. Ms.G.Jeelani Begum
44. Ms.I.Sadhiya Banu
45. Ms.S.Jamal Sayeeda Tabassum
46. Ms.S.M.Nayeemunnisa
47. Ms.Shahira Banu
48. Ms.Beema Jainab
49. Ms.P.Jabeena Begum
50. Ms.G.A.Asif Jamal
51. Ms.R.Hajira Banu
52. Ms.Asifa Ahmed
53. Ms.Fauzia Ahmed
54. Dr.Amtuz Zehra
55. Dr.C.M.Noorjahan
56. Ms.D.Mubeen Sultana
57. Ms.S.M.Asgari
58. Ms.M.Parveen
59. Ms.B.Dishad Begum
60. Ms.Kavitha Dhanraj
61. Ms.Mahjabeen
62. Ms.Tasneem Kauser
63. Ms.Shabiya Thaseen
64. Ms.A.Sajitha Qadir
65. Ms.R.M.Sobana
66. Ms.P.Mohamed Nisha
67. Ms.Rayees Unisa
68. Dr.Sujitha.S.
69. Dr.Susan Paul
70. Dr.Mary N.L.
71. Ms.Mary Abraham
72. Dr.Durgalakshmi Gopalan
73. Ms.Mary Shantha Joseph
74. Dr.Swapna Malarmeni Sathish
75. Ms.K.Latha
76. Dr.V.Padma
77. Ms.S.Teresa Arockiamary Santiago
78. Ms.A.Josephine Lissie
79. Ms.Dhanalakshmi.V
80. Ms.S.Nalini
81. Sr.Francisco Nirmala.G.
82. Ms.Antony Rose Immaculate.C.
83. Dr.Rita.C
84. Dr.Miriam Cecilia Suares
85. Dr.Xavier Nirmala
86. Ms.Nazneen Marshall
87. Sr.M.Lourthu Mary
88. Dr.Jude Annie Cynthia.V
89. Mrs.A.Anuradha
90. Dr.(Mrs.)Thomas Mary Pearl
91. Ms.D.Jasmine Jenifer Arulmani
92. Dr.Sheba Sangeetha Jeyaraj
93. Dr.(Mrs.)Vanitha Ebenezer
94. Ms.Amala Russell
95. Ms.J.Shajini Judith Diana
96. Ms.Sherrie Jesulyn David
97. G.Libni
98. Ms.W.Lily Margaret Priya
99. Ms.Esther Sweetlyn
100. Ms.Mallika Rachel Jayakumar
101. Ms.Anna Thomas
102. Ms.A.Christina Nancy
103. Ms.A.Zarina
104. Dr.J.Merline Shyla
105. Ms.D.Christina Sagaya Mary
106. Dr.M.C.John Milton
107. Mr.A.Xavier Mahimairaj
108. Mr.J.Maria Roy Felix
109. Ms.D.Florence Isido
110. Mr.M.Arockiaraj
111. Dr.D.Antony Xavier
112. Dr.D.David Stanley
113. Mr.A.Sebastiraj
114. Ms.P.Mary Vidya Porselvi
115. Dr.A.John Maria Xavier
116. Mr.A.Justin Adaikala Baskar
117. Dr.J.Judith Vijaya
118. Dr.J.Joel Gnanadoss
119. Mr.L.Solomon Raj
120. Mr.P.Antony Kishore
121. Dr.K.Thresia Mathews
122. Mr.L.Joseph Arockiasamy
123. Dr.A.Marcus
124. Dr.G.Jeyajothi
125. Ms.D.Mary Swornambal
126. Mr.Elango J.Parimalam
127. Fr.M.Albert William, SJ
128. Mr.I.Antony Joseph Jeyadoss
129. Fr.A.Louis Arockiaraj, SJ
130. Fr.P.Susai, SJ
131. Mr.A.Hyder Ali
132. Mr.A.Mohamed Hussain
133. Mr.M.Nizam Mohideen
134. Dr.R.Kumar
135. Dr.Syed Abdul Hameed
136. Mr.Shaik Mohammed Ismail
137. Mr.H.Abdul Hadi
138. Mr.A.Shahul Hameed
139. Mr.T.Abdul Rahman
140. Mr.A.Fareed Aslam
141. Mr.Syed Kamalullah Bakhtiary
142. Dr.K.M.A.Ahmed Zubair
143. Mr.S.Murali
144. Mr.S.Syed Abudahir
145. Dr.M.Abdul Jamal
146. Mr.M.Fakir Ismail
147. Mr.A.Rasheed Khan
148. Mr.A.Syed Mohammed Mujaheer
149. Dr.S.Tameem Sharief
150. Mr.Aboothahir Afzal
151. Dr.K.Syed Suresh Babu
152. Mr.K.Abdul Nazeer
153. Mr.A.Sherif
154. Mr.Syed Ahamudul Rafeek
155. Mr.S.Abdul Rasheed
156. Mr.A.K.Sultan Mohideen
157. Mr.Y.Abdul Nazar
.. Respondents in W.P.No.34434 of 2007.

(R8 to 157 impleaded as per order dated 30.09.2010 in M.P.1/2008, M.P.1/2009 and M.Ps.1 to 6/2010 in W.P.No.34434 of 2007)

Writ petition in W.P.No.34434 of 2007 is filed under
Article 226
of Constitution of India for the issuance of a Wit of Declaration declaring Clause 3 of the Annexure to the UGC Regulations 2000 regarding minimum qualification for appointment and career advancement of teachers in universities and colleges are violative of the fundamental rights quaranteed under
Article 30(1)
of the Constitution of India and inapplicable to the members of the petitioner society.

For Petitioners : Mr.N.R.Chandran, SC (in W.P.No.5921/'08)
For Mr.R.Natarajan

M/s.Isaac Mohanlal
Mr.P.Godson Swaminath
(in W.P.Nos.23140/'07 & 30089/'08)

Mr.A.L.Somayaji, SC
For Mr.K.Ilias Ali
(in W.P.Nos.34434, 34435, 14749, 14750 & 12914 of 2007)

Mr.P.V.S.Giridhar (in W.P.No.498/'09)
For Sai Associates

Mr.K.Shakespeare (in W.P.No.25268/'08)

Mr.Fr.A.Xavier Arulraj
(in W.P.No.17334/2010)

Mr.Balan Haridas (in W.P.No.16504/2010)

For Respondents : Mr.P.Wilson,
Addl. Advocate General and
Mr.G.Sankaran,
Spl.Govt.Pleader for state in all W.Ps.

Mr.R.Krishnamoorthy, SC
for Mr.P.R.Gopinathan for UGC in all W.Ps

Mr.B.Ramamoorthy for R2
(in all the W.Ps.)
Mr.V.Govardhan for R4
For M/s.Row & Reddy

M/s.N.Kavitha for R5

Mr.John Zackaria for R6
for M/s.T.S.Gopalan & Co

Mr.R.Subramanian for R8

Mr.Ajay Ghose for R9

Mr.G.S.Thambi for R10 to R157
For Mr.T.Cibi Chakraborthy

Mr.R.Thiagarajan, SC
For Impleaded Parties
*****
J U D G M E N T

VINOD K.SHARMA,J.

This judgement shall dispose of the following writ petitions, viz.,
Sl. No.
Case No.
Name of the Petitioner
W.P.No.34434 of 2007

The Forum of Minority Institution & Association
W.P.No.34435 of 2007

The Forum of Minority Institutions and Association
W.P.No.14749 of 2007

Dhanraj Baid College
W.P.No.14750 of 2007

Dhanraj Baid College
W.P.No.12911 of 2007

The Muslim Educational Association of Southern India
W.P.No.12912 of 2007

The Muslim Educational Association of Southern India
W.P.No.12913 of 2007

The Muslim Educational Association of Southern India
W.P.No.12914 of 2007

The Muslim Educational Association of Southern India
W.P.No.23140 of 2007

The Secretary/Correspondent, Loyola College
W.P.No.25268 of 2008

A.M.Jain College
W.P.No.5921 of 2008

Association of Muslim Colleges of Tamil Nadu
W.P.No.30089 of 2008

The Secretary of Stella Maris College
W.P.No.498 of 2009

D.B.Jain College
W.P.No.17334 of 2010

The Association of St.Christopher's College of Education
W.P.No.16504 of 2010

S.Baskaran
W.P.No.16505 of 2010

V.Jayanthi
as common question of law is raised in all these writ petitions. However, for the sake of brevity, the facts are being taken from W.P.No.34434 of 2007.

2. The Forum of Minority Institutions and Associations / petitioner has invoked writ jurisdiction of this Court with prayer for issuance of Writ of Declaration declaring Clause 3 of the Annexure to the UGC Regulations 2000 regarding minimum qualification for appointment and career advancement of teachers in universities and colleges to be violative of the fundamental rights quaranteed under
Article 30(1)
of the Constitution of India, therefore inapplicable to the members of the petitioner society.

3. The facts pleaded in the affidavit by the petitioner is that it is a society registered under the
Tamil Nadu Societies Registration Act, 1975
. That members of the petitioner society consist of religious as well as linguistic minority institutions. According to Rule 3 of the Rules, membership is open to managements of all colleges and schools established and maintained by religious and or linguistic minorities and associations controlling or connected with such institutions. The Rule further provides that other societies and associations working for advancement of education of religious and linguistic minorities are also eligible to be members of the petitioner society. The object of the petitioner society reads as follows:

"a) To provide a forum for the various religious and linguistic minority institutions and associations to meet periodically to discuss common problems and solve them.

b) To co-ordinate the efforts of the various institutions and associations to achieve their common aim of eradication of illiteracy and advancement of education at all levels and promotion of the cultural activities.

c) To make representation to all educational authorities both at the Central and State level and also to the University Grants Commission and such other Authorities or Boards which are connected with education. It shall also co-ordinate its efforts with other institutions interested in education in respect of all its problems, arising from time to time and to act as a liason body between the Member Institutions and the aforesaid mentioned authorities.

d) To protect the rights of the religious and linguistic minorities guaranteed under
Article 29
and
of the Constitution of India and to take such steps as are necessary in Courts and before the Government, University etc. to protect these rights.

e) To periodically review the progress of education of the linguistic and religious minorities in the field of technical and professional education at all levels and to take necessary steps for speedy advancement.

f) To publish magazine or any periodical or publication to project the views of the Forum and its members and to highlight problems facing education in general and the members of the Forum in particular.

g) To do all such other lawful acts or things as are necessary and in accordance and conducive to the attainment of the above objects or any of them.

h) To frame rules and bye-laws to enable the efficient working of the Forum and the achievement of the above objects."

The list of members of the petitioner is also attached with the affidavit. It is the case of the petitioner that member institutions of the petitioner have various posts of Principals, Lecturers etc. which are vacant.

4. It is the case of the petitioner that filling up of posts in the member institutions has been sanctioned by the State of Tamil Nadu and in pursuance thereof, member institutions have commenced the process of filling up the vacancies. It is the case of the petitioner that in some cases, vacancies have been filled by the respective institutions and approval of qualifications has been sought for from respective universities. Some of the universities have passed orders rejecting approval of qualifications of appointees on the ground that the selection committee was not constituted in accordance with the UGC Regulations 2000, whereas some of the universities have failed to approve recommendations. The member institutions of petitioner, who were permitted to fill up sanctioned posts had been shown as under:

"a) The Women's Christian College, College Road, Nungambakkam, Chennai  600 006, was sanctioned 16 posts by the first respondent.

b) The Loyola College, Nungambakkam, Chennai  34 was sanctioned 28 posts by the first respondent.

c) The Auxillium College, Gandhi Nagar, Vellore  632 006 was sanctioned 46 posts by the first respondent.

d) The Providence College for Women, Coonoor  643 104, Nilgiris, was sanctioned 8 posts by the first respondent.

e) The St.Christopher's College of Education, No.63, EVK Sampath Road, Vepery, Chennai was sanctioned 2 posts by the first respondent.

f) In the Nirmala College for Women, Red Fields, Coimbatore-18, there were 9 vacant posts of which the first respondent had sanctioned filling up of eight posts.

g) In the Sacred Heart College, Tirupathur, Vellore District, thee were 12 vacant posts of which the first respondent has sanctioned filling up 10 posts.

h) In the Jamal Mohamed College, No.7, Race Course Road, Khaja Nagar, Trichy-620 020, the first respondent has sanctioned 22 posts.

i) The Quaid-e-Milleth College for Men, Tambaram-Velacherry Road, Medavakkam, Chennai-601 302 affiliated to the second respondent has one post sanctioned by the first respondent.

j) The St.Jude's College, Thoothoor  629 176, Kanyakumari District, affiliated to the fourth respondent university was sanctioned 3 posts by the first respondent.

k) The St.Xavier's College, Palayamkottai-627 002 is sanctioned 19 posts by the first respondent.

l) The Mazharul Uloom College, Ambur-635 802 is affiliated to the third respondent. The first respondent has sanctioned filling up of six posts in the college.

m) The Guru Nanak College, Velachery Road, Velachery, Chennai-600 042, is affiliated to the second respondent university. The first respondent has sanctioned filling up of 9 posts in the college.

n) The American College, Tallakulam, Madurai-625 002 is affiliated to the sixth respondent University. The first respondent has sanctioned filling of the vacancies of the post of lecturer in the college.

o) In the Asan Memorial College of Arts and Science, Jaladampet, Chennai  601 302, the first respondent had sanctioned filling up of two posts."

The details with regard to non-approval of qualification by Madras University and consequence non-approval by the State Government to the appointment are as under:

"a) The second respondent University has refused to approve the qualifications of the two selected candidates. The College by its letter dated 07.02.2007 has pointed out to the second respondent University that it was a minority institution and the UGC Regulations, 2000 are violative of its fundamental right to administer its institution and requested that the qualifications of the two lecturers may be approved. However, the second respondent has not responded to the college and the qualifications of the two appointees remain unapproved. The result of the refusal of the second respondent to approve the qualifications is that the appointments are not approved by the first respondent.

b) In the C.Abdul Hakeem College, Hakeem Nagar, Melvishvaram  632 509, Vellore District, the first respondent had sanctioned filling up of 9 posts out of 14 vacancies. The said college has sent proposals for approval of qualifications of the new appointees. However, the third respondent has not passed orders approving the qualifications.

c) The Islamia College, New Town, Vaniyambadi-635 752, affiliated to the third respondent, is sanctioned 16 posts by the first respondent and the qualifications of the new appointees were forwarded to the third respondent for approval of their qualifications. However, the third respondent by its letter dated 30.08.2007 has insisted that the College follow the UGC Regulations 2000 and informed that grant of approval for qualifications would not be considered by the University if the prescribed selection procedures are not followed.

d) The New College was sanctioned 8 teaching posts in 2006 and 23 teaching posts in 2007 by the first respondent. As regards 6 teaching posts filled up by the New College, the affiliating University, the second respondent herein, refused to approve the qualifications of the candidates selected by the college on the ground that the Selection Committees were not constituted as per the UGC Regulations 2000. The qualification of some of the candidates appointed by The New College were already approved by the second respondent when they were appointed under the management posts. I submit that the New College approached this Hon'ble Court by way of W.P.Nos.12911 to 12914 of 2007 and the same is pending.

e) The AM Jain College, No.25, Pulliyur Second Main Road, Trustpuram, Kodambakkam, Chennai-600 024 and sought for approval of the qualifications of 10 lecturers in various departments. However, the second respondent University by its letter dated 19.01.2007 refused to consider the approval qualifications of the said lecturers, since the lecturers were not selected through a proper Selection Committee as envisaged in the UGC Regulations 2000.

f) In the DB Jain College, the first respondent has sanctioned 11 posts. However, the second respondent University has passed orders refusing to approve qualifications of the appointees on the ground of non-compliance with the UGC Regulations 2000. I submit that the said institution had approached this Hon'ble Court in W.P.No.14749 and 14750 of 2007 and the same is pending.

g) In the Voorhees College, Officers Line, Vellore-632 001, the first respondent has sanctioned filling up of eighteen posts.

h) In the Stella Maris College, the first respondent sanctioned filling up of 21 posts of which the college has filled up eight posts and has applied to the second respondent University for approval of the qualifications of the appointees. However, the second respondent has by its letter dated 06.06.2007 refused to consider the approval of the qualifications of the appointees on the ground that the lecturers were not selected through a proper selection committee as envisaged in the UGC Regulations, 2000.

i) The Dharmamurthy Rao Bahadur Calavala Cunnan Chetty's Hindu College, a linguistic minority institution, was sanctioned 17 posts by the first respondent. The said posts include the post of Principal. The approval of qualifications of the Principal is pending with the second respondent since 29.01.2007.

j) The Madras Christian College, Tambaram, Chennai-69 was sanctioned 34 posts by the first respondent. The request for approval for qualification of the appointed candidates were forwarded to the second respondent University in August 2006. I submit that thereafter the second respondent University has refused to approve the qualifications of the lecturers on the ground that the Selection Committee was not constituted in accordance with the UGC Regulations 2000. The Principal and Secretary of the Madras Christian College by his letter dated 19.04.2007 while point out that the lecturers possessed the necessary qualifications as prescribed by the UGC brought to the notice of the second respondent that the UGC Regulations 2000, were only recommended by the UGC and also that minority institutions have the right to appoint lecturers of their own choice."

5. The case of the petitioner is that on account of non-approval by following Para 3 of annexure to UGC Regulations 2000 regarding minimum qualifications amounts to infringement of fundamental rights of the petitioner guaranteed under
Article 30(1)
of the Constitution of India. It is pleaded that this action of the respondents amounts to interference with the rights of minority institutions to appoint teachers of their choice, as the right to appointment forms part to administer, the Educational Institution.

6. Paragraph 3 of annexure to UGC Regulations 2000 regarding minimum qualification for appointment and career advancement of teachers in universities and colleges reads as under:

"6.0.0. Selection Committees recommended by the UGC

6.0.1. Lecturer in a Private College

B. Chairperson of the Governing Body of the College of his / her nominee to be the Chairperson of the Selection Committee.

C. The Principal of the concerned College

D. One Senior Teacher / Head of Department (of the concerned subject) preferably having not less than 10 years of service as a teacher.

E. Two nominees of the Vice Chancellor of the Affiliating University of whom one should be a subject expert,

F. Two subject experts not connected with the college to be nominated by the Chairperson of the Governing Body out of a panel of names approved by the Vice Chancellor.

For Government Colleges, the State Public Service Commissions must invite three subject experts for which the State Public Service Commissions will involve the University In the selection. The Principal and Head of the Department should be necessarily included in the selection committee.

The quorum for the meeting should be five of which at least two must be from out of the three subject experts.

3.2.0 FOR THE POST OF UNIVERSITY LECTURER

At the University level, all selections must be done within the system with the Vice Chancellor as the Head of the Selection Committee.

1. The Vice Chancellor to be the Chairperson of the Selection Committee.

2. Three experts in the concerned subject to be invited on the basis of the list recommended by the Vice Chancellor and approved by the Executive Council / Syndicate.

3. Dean of the concerned Faculty/Head/Chairperson of the Department.

4. An academician nominated by the Visitor/Chancellor.

The quorum should be four, out of which, at least two outside subject experts must be present.

3.3.0 FOR THE POST OF READER

The process of selection should involve inviting the bio-data and reprints of three major publications of the candidate before interview and getting them assessed by the same three external experts, who are to be invited to interview the candidate. The Selection Committee should have the following composition:

1. Vice Chancellor to be the Chairperson of the Selection Committee.

2. An academician, who is the nominee of the Visitor / Chancellor.

3. Three experts in the concerned subject/field, out of the first recommended by the Vice Chancellor and approved by the Executive Council/Syndicate.

4. Dean of the Faculty.

5. Head/Chairperson of the Department

At least four members, including two outside experts, must constitute the quorum.

3.4.0 FOR THE POST OF PROFESSOR

The process of selection should involve inviting the bio-data and reprints of three major publications of which one could be a book or research report, before the interview, and getting them assessed by the same three external experts who are to be invited for the interview. The assessment report must be placed before the Selection Committee. The composition of the Selection Committee for the post of a Professor will be the same as proposed for the post of a Reader.

It may be ensured that the process of selection in every case is transparent and credible.

In the case of posts of Readers and Professors in Colleges, besides the Chairperson Governing Body, the Principal of the College and the Head of the Department, there will be two University representatives, one of whom will be the Dean of College or equivalent position in the University, who will substitute the visitor's nominee and the VC should be substituted by the VC's nominee.

3.5.0 FOR THE POST OF PRINCIPAL

1. Chairperson of the Governing Board as Chairperson.

2. One member of the Governing Board to be nominated by the Chairperson.

3. Two Vice Chancellor's nominees, out of whom one should be an expert

4. Three experts consisting of the Principal of a College, a Professor and an accomplished educationalist not below the rank of a Professor (to be nominated by the Governing Board) out of a panel of experts approved by the Vice Chancellor.

At least four members, including two experts, should constitute the quorum

The Process of selection should involve the following:

a) Assessment of aptitude for teaching and research

b) Ability to communicate clearly and effectively

c) Ability to analyse and discuss

d) Optional: Ability to communicate may be assessed by requiring the candidate to participate in a group discussion or by exposure to a classroom situation/lecture, wherever it is possible."

The petitioners have challenged Clause-3 of annexure to the provisions of UGC Regulations 2000 regarding minimum qualifications for appointment and career advancement of teachers in universities and colleges to be arbitrary, illegal and violative of fundamental rights guaranteed under
Article 30(1)
of the Constitution of India, as it interferes with fundamental rights of the petitioners to appoint teaching staff, which is the facet of right to administer, the Educational Institution.

7. The grounds of challenge as pleaded in the writ petition are that:

i) the member institutions of the petitioner are established and administered by persons belonging to religious as well as linguistics minorities in Tamil Nadu and are entitled to the protection guaranteed under
Article 30(1)
of the Constitution of India,

ii) the constitution of the Selection Committee under the UGC Regulations 2000 regarding minimum qualification for appointment and career advancement of teachers in universities and colleges with a majority of outsiders nominated by the respondent universities interferes with the rights of the members of the petitioner to administer their institutions,

iii) the UGC Regulations 2000 provides for a majority of outsiders on the Selection Committee, which resulted in taking away the petitioner's members to administer their institutions by selecting the the lecturers of their own choice,

iv) in the case of minority institutions, the role of the respondent Universities is only for approval of the teaching qualifications of the candidates selected by the members of the petitioner and the Universities have no right to nullify appointments made by the members of the petitioner society in view of the UGC Regulations 2000. The Regulations are claimed to be only recommendatory in nature and therefore, the respondent universities cannot refuse to approve the qualifications of the lecturers selected by the minority institutions,

v) that the University Grants Commission, New Delhi, has no power to make regulations in respect of Selection Committees for appointment of teaching staff in the private colleges, therefore, notification is void and of no effect.

8. The case of the petitioner is that these regulations have been passed under Clause e and g of Sub Section(1) of
Section 26
read with
Section 14
of the University Grants Commission Act, 1996, under which, the University Grants Commission has no power to fix the Selection Committee. The further case of the petitioner is that minority institutions have every right to appoint their own Selection Committee, which, as per the pleaded case of the petitioner, consists of the Managing Committee, the Principal, Head of Department of the concerned subject and independent subject experts chosen by the College's Managing Committee in consultation with the Principal and the concerned Head of Department. The petitioner claims that mechanism already exists in colleges for selection of teaching staff and that the persons selected have the requisite qualification for appointment and therefore, recommendation for constitution of Selection Committee is without jurisdiction being not envisaged under Clause e and g of Sub Section(1) of
Section 26
read with
Section 14
of the University Grants Commission Act, 1996.

9. It is also the case of the petitioner that these regulations will not apply to minority institutions, as it is not specifically so stated in the regulations so framed, therefore, University's and its refusal to approve qualification of lecturers is causing in great loss and hardship to members of the petitioner society. It is on the approval of the qualification that the appointment of the lecturers would be approved by the Government of Tamil Nadu.

10. On facts and grounds referred to above, the petitioner's members pray for grant of relief as stated above. It is further pointed out that during pendency of writ petition, UGC Regulations on minimum qualifications for appointment of teachers and other academic staff in Universities and Colleges and measures for the maintenance of standard in Higher Education 2010 have been framed as under:

5.0.0. SELECTION COMMITTEES AND GUIDELINES ON SELECTION PRODUCEDURES:

The UGC has evolved the following guidelines on: (a) Constitution of Selection Committees for selection of Assistant Professor, Associate Professor, Professor, Assistant Librarian, Deputy Librarian, Librarian, Assistant Director of Physical Education and Sports, Deputy Director of Physical Education and Sports and Director of Physical Education and Sports; and (b) specified selection procedures for direct recruitment and Career Advancement Schemes Regulations for teachers and other academic staff in universities and colleges.

5.1.0 Selection Committee Specifications:

The composition of the Selection Committee for the post of Professor in the University shall be similar in composition as that for the post of Associate Professor set out in Clause 5.1.2 above.

5.1.4 Assistant Professor in Colleges including Private Colleges:

(a) The Selection Committee for the post of Assistant Professor in Colleges including Private Colleges shall have the following composition:

1. Chairperson of the Governing Body of the college or his/her nominee from among the members of the Governing body to be the Chairperson of the Selection Committee.

2. The Principal of the College.

3. Head of the Department of the concerned subject in the college.

4. Two nominees of the Vice Chancellor of the affiliating university of whom one should be a subject expert. In case of colleges notified/declared as minority educational institutions, two nominees of the Chairperson of the college from out of a panel of five names, preferably from minority communities, recommended by the Vice Chancellor of the affiliating university from the list of experts suggested by the relevant statutory body of the college, of whom one should be a subject expert.

5. Two subject-experts not connected with the college to be nominated by the Chairperson of the governing body of the college out of a panel of five names recommended by the Vice Chancellor from the list of subject experts approved by the relevant statutory body of the university concerned. In case of colleges notified/declared as minority educational institutions, two subject experts not connected with the University to be nominated by the Chairperson of the Governing Body of the College out of the panel of five names, preferably from minority communities, recommended by the Vice Chancellor from the list of subject experts approved by the relevant statutory body of the college.

6. An academician representing SC/ST/OBC/Minority/Women/Differently-abled categories, if any of candidates representing these categories is the applicant, to be nominated by the Vice Chancellor, if any of the above members of the selection committee do not belong to that category.

(b) To constitute the quorum for the meeting, five of which at least two must be from out of the three subject-experts shall be present.

(c) For all levels of teaching positions in Government colleges, the State Public Services Commissions / Teacher Recruitment Boards must invite three subject experts for which the concerned University, be involved in the selection process by the State PSC.

(d) For all levels of teaching positions in Constituent college(s) of a University, the selection committee norms shall be similar to that of the posts of departments of the university.

5.1.5 Associate Professor in Colleges including Private Colleges

(a) The Selection Committee for the post of Assistant Professor in Colleges including Private Colleges shall have the following composition:

1. The Chairperson of the Governing Body or his or her nominee, from among the members of the Governing body to be the Chairperson of the Selection Committee.

2. The Principal of the College.

3. The Head of the Department of the concerned subject from the college.

4. Two University representatives nominated by the Vice Chancellor, one of whom will be the Dean of College Development Council or equivalent position in the University, and the other must be expert in the concerned subject. In case of Colleges notified/declared as minority educational institutions, two nominees of the Chairperson of the College from out of a panel of five names, preferably from minority communities, recommended by the Vice-Chancellor of the affiliating university from the list of experts suggested by the relevant statutory body of the college of whom one should be a subject expert.

5. Two subject-experts not connected with the college to be nominated by the Chairperson of the governing body of the college out of a panel of five names recommended by the Vice Chancellor from the list of subject experts approved by the relevant statutory body of the university concerned. In case of colleges notified/declared as minority educational institutions, two subject experts not connected with the University to be nominated by the Chairperson of the Governing Body of the College out of the panel of five names, preferably from minority communities, recommended by the Vice Chancellor from the list of subject experts approved by the relevant statutory body of the college.

6. An academician representing SC/ST/OBC/Minority/Women/Differently abled categories, if any of candidates representing these categories is the applicant, to be nominated by the Vice Chancellor, if any of the above members of the selection committee do not belong to that category.

(b) The quorum for the meeting should be five of which at least two must be from out of the three subject-experts.

5.1.6 College Principal

(a) The Selection Committee for the post of College Principal shall have the following composition:

1. Chairperson of the Governing Body as Chairperson

2. Two members of the Governing Body of the college to be nominated by the Chairperson of whom one shall be an expert in academic administration.

3. One nominee of the Vice Chancellor who shall be a Higher Education Expert. In case of Colleges notified/declared as minority educational institutions, one nominee of the Chairperson of the College from out of a panel of five names, preferably from minority communities, recommended by the Vice Chancellor of the affiliating University of whom one should be a subject expert.

4. Three experts consisting of the Principal of a college, a Professor and an accomplished educationalist not below the rank of a Professor (to be nominated by the Governing Body of the college) out of a panel of six experts approved by the relevant statutory body of the university concerned.

5. An academician representing SC/ST/OBC/Minority/Women/ Differently abled categories, if any of candidates representing these categories is the applicant, to be nominated by the Vice Chancellor, if any of the above members of the selection committee do not belong to that category.

(b) At least five members, including two experts, should constitute the quorum.

(c) All the selection procedures of the selection committee shall be completed on the day of the selection committee meeting itself, wherein, minutes are recorded along with the scoring proforma and recommendation made on the basis of merit with the list of selected and waitlisted candidates/Panel of names in order of merit, duly signed by all members of the selection committee.

(d) The term of appointment of the college Principal shall be Five years with eligibility for reappointment for one more term only after a similar selection committee process.

5.1.7 Selection Committees for the posts of Directors, Deputy Directors, Assistant Directors of Physical Education and Sports, Librarians, Deputy Librarians and Assistant Librarians shall be the same as that of Professor, Associate Professor and Assistant Professor respectively, except that the concerned expert in Physical Education and Sports or Sports Administration or Library, practicing Librarian/Physical Director, as the case may be, shall be associated with the Selection Committee as one of the subject experts."

These regulations are also challenged on the facts and grounds herein above mentioned.

11. The University Grants Commission (UGC), respondent No.7 contested the writ petitions by submitting that the University Grants Commission (hereinafter referred to as 'the Commission') has been constituted under the provision of the
University Grants Commission Act, 1956
, which came into force with effect from 05.11.1956. The object of the Act is to make provision for the co-ordination and determination of standards in universities. The Commission under the Act has statutory duty to take steps as it may think fit for promotion and co-ordination of university education and for the determination and maintenance of standards of teaching, examination and research in universities. In exercise of statutory powers, it can recommend to any university the measures necessary for improvement of university education and advise the universities the action to be taken for the purpose of implementation of such recommendation.

12. A reference in the counter is made to
Section 2(f)
and
Section 12
of the University Grants Commission Act to assert that it is the general duty of the Commission in consultation with the Universities or other bodies concerned to take all such steps as it may think fit for the promotion and co-ordination of University Education and for the determination and maintenance of the standards of teaching, examination and research in Universities. In addition to that, the Commission can also perform such other functions as may be prescribed or as may be deemed necessary by the Commission for advancing the cause of higher education in India or as may be incidental or conducive to these functions. The grant by Central Government is also regulated on the satisfaction of the Commission in terms of
Section 12(b)
of the Act. In exercise of power under
Section 13
of the Act, the Commission can inspect the universities to ascertain the standards of teaching, examination and research in University and make recommendations which are required to be rectified by the universities.
Section 26
of the University Grants Commission Act authorises the Commission to make regulations consistent with this act and Rules to define the minimum standards of instructions for grant of any degree by any university as also regulating the maintenance of standards and the co-ordination of work or facilities in Universities.

13. The
Regulation 3
, which is under challenge, is framed in pursuance of the statutory powers vested under
Section 26
of the University Grants Commission Act.

14. So far as the
University Grants Commission Act, 1956
is concerned, it has been traced to Entry-66 of List-I of the VII Schedule of the Constitution, thereby it has been included in concurrent. Therefore, the provisions of co-ordination and determination of standards in the universities are covered under Entry 66 of List-I.

15. The submission therefore is that in view of the 42 amendment of the Constitution in the year 1976, the Commission has greater role to play in shaping the academic life of the country. The stand of the Commission therefore is that the UGC regulations are binding on all the universities and colleges affiliated thereto including deemed universities, therefore, appointment to the teaching staff or to the post of the Principal is to be made in accordance with the regulations framed by the Commission.

16. In reply to the legal plea raised by the petitioners, the stand of the Commission is that the right to administer does not include the right to mal-administer and further that the right to administer is not absolute, but subject to regulations for the benefit of the institutions as the vehicle of education to be consistent with national interest. The right of the minority institutions under Regulation 30(1) therefore is not absolute, but subject to the provisions of the law. On the submission made above, it is prayed that the writ petitions be dismissed.

17. By way of additional counter, the grounds raised in support of the petitions, are controverted, on the submission that the regulations framed by the Commission are in the interest of students, who joined in the colleges for academic qualification for their betterment in life. The regulations under challenge require appointment of selection committee to be in accordance with such regulations, though appointment of persons can be made on their own choice from the eligible candidates, who are qualified to be appointed as lecturers by the minority institutions. It is also pleaded by way of counter affidavit that regulation of selection committee would enable the students to have better teaching staff, since all the qualified candidates cannot be good in teaching, therefore, these regulations do not infringe the right of the minorities to appoint teachers.

18. The pleadings of the petitioners and the respondent would show that two points had been raised for consideration by this Court, i.e.

i) That the rights under Clause (e) and (g) of Sub Section (1) of
Section 26
read with
Section 14
of the Commission, 1966, does not empower the Commission to make regulations regarding selection commission to be constituted by the private colleges,

ii) That in view of the protection guaranteed under
Article 30(1)
of the Constitution of India, these regulations would not apply to minority institutions as it would amount to interference in the right to administer their institutions.

19. The contention raised in support of first point to challenge the impugned regulations was, that the reading of the object of
University Grants Commission Act
would show that the Act was enacted to make provisions for co-ordination and determination of standards in universities, and for that purpose establish the Commission. Therefore, it would apply to universities alone and not to the colleges affiliated to the universities. Reference was therefore made to
Section 12
and
26(e)(f)(g)
of the Act to contend that the legislature in its wisdom has used the word 'universities' and not the colleges affiliated to it. The Commission therefore has no jurisdiction to frame regulations to regulate the selection process of teaching staff in the colleges.

20. This argument, though attractive on the face of it, but when seen in depth, deserves to be noticed to be rejected, for the reasons, that the colleges affiliated with the universities are bound to maintain required standard of education, and the regulations made to regulate the university education would include right to regulate the education of affiliated colleges. Even otherwise,
Section 12(a)
of the Act gives powers to regulate studies in the colleges by the students and also regulate education of the students admitted to the colleges affiliated to the universities. The regulations therefore cannot be challenged on this ground.

21. As regards the question as to whether the regulations are beyond the scope of
Sections 12
,
and
of the Act, already stands answered by the Hon'ble Division Bench of this Court in the case of
Secretary, Kamaraj College, Thoothukudi vs. D.S.Arulmani, Reader & Head of Department of Tamil Kamaraj College, Thoothukudi
reported in (2008) 2 MLJ 593 wherein, after a detailed discussion, this Court held that
"45. In fine, we hold that the impugned UGC Regulations, more particularly, paragraph Nos.3.1.0 and 3.5.0 of the same, are perfefectly valid and there are no valid and proper reasons to strike down the same as unconstitutional and ultra vires. The writ Appeal Nos.585 and 1305 of 2006 arising out of W.P.No.17630 of 2005, are devoid of merits. The selection of Dr.J.Mohanraj as the Principal of Kamaraj College, Tuticorin, (appellant in W.A.No.585 of 2006) by a Committee other than the Selection Committee prescribed by the UGC. Regulations, 2000, has been rightly set at naught by a well considered judgment of the learned Judge. We see no reason to interfere with
the said judgment
. Consequently, all the writ appeals are dismissed. Connected M.Ps. Are closed. No Costs."

22. Learned counsel for the petitioners contended that the reading of regulations with regard to constitution of selection committee would show that there is mandate to include the persons not connected with the college in the selection committee and further more, the regulation lays down the process of selection to involve the following:

"a) Assessment of aptitude for teaching and research

b) Ability to communicate clearly and effectively

c) Ability to analyse and discuss

d) Optional: Ability to communicate may be assessed by requiring the candidate to participate in a group discussion or by exposure to a classroom situation / lecture, wherever it is possible."

Therefore, in view of the regulations of the factors like compatibility with the minority's ideals, aims, aspirations, outlook, philosophy etc are required to be overlooked, which would amount to interference in the administration of the minority institutions.

23. The contention of the learned counsel for the petitioner is that it is a settled law that right of the minority institutions to administer their institutions is fundamental right guaranteed under
Article 30(1)
of the Constitution of India. The right to appoint teachers of choice is not only essential, but most important facet of the right of administration. The choice of minority institutions cannot be restricted in regard to the general qualifications and experience alone, but also in relation to the compatibility with the minority's ideals, aims, aspirations, outlook, philosophy, language, religion and culture.

24.
In support of his contention, learned counsel for the petitioner placed reliance on a judgment of the Hon'ble Supreme Court in the case of
Ahmedabad St.Xavier's College Society vs. State of Gujarat and another
reported in (1974) 1 Supreme Court Cases 717, wherein, the Hon'ble Supreme Court was pleased to lay down as under:

19. The entire controversy centres round the extent of the right of the religious and linguistic minorities to administer their educational institutions. The right to administer is said to consist of four principal matters. First is the right to choose its managing or governing body. It is said that the founders of the minority institution have faith and confidence in their own committee or body consisting of persons elected by them. Second is the right to choose its teachers. It is said that minority institutions want teachers to have compatibility with the ideals, aims and aspirations of the institution. Third is the right not to be compelled to refuse admission to students. In other words, the minority institutions want to have the right to admit students of their choice subject to reasonable regulations about academic qualifications. Fourth is the right to use its properties and assets for the benefit of its own institution.

103. Another conclusion which follows from what has been discussed above is that a law which interferes with a minoritys choice of qualified teachers or its disciplinary control over teachers and other members of the staff of the institution is void as being violative of
Article 30(1).
It is, of course, permissible for the State and its educational authorities to prescribe the qualifications of teachers, but once the teachers possessing the requisite qualifications are selected by the minorities for their educational institutions, the State would have no right to veto the selection of those teachers. The selection and appointment of teachers for an educational institution is one of the essential ingredients of the right to manage an educational institution and the minorities can plainly be not denied such right of selection and appointment without infringing
Article 30(1).
In the case of Rev. Father W. Proost this Court while dealing with
Section 48-A
of the Bihar Universities Act observed that the said provision completely took away the autonomy of the governing body of the college and virtually vested the control of the college in the University Service Commission. The petitioners
in that case
were, therefore, held entitled to the protection of
Article 30(1)
of the Constitution. The provisions of that section have been referred to earlier. According to the section, subject to the approval of University appointment, dismissals, removals, termination of service or reduction in rank of teachers of an affiliated college not belonging to the State Government would have to be made by the governing body of the college on the recommendation of the University Service Commission. The section further provided that the said Commission would be consulted by the governing body of a college in all disciplinary matters affecting teachers of the college and no action would be taken against or any punishment imposed upon a teacher of a college otherwise than in conformity with the findings of the Commission.

182. It is upon the principal and teachers of a college that the tone and temper of an educational institution depend. On them would depend its reputation, the maintenance of discipline and its efficiency in teaching. The right to choose the principal and to have the teaching conducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important facet of the right to administer an educational institution. We can perceive no reason why a representative of the University nominated by the Vice-Chancellor should be on the Selection Committee for recruiting the Principal or for the insistence of head of the department besides the representative of the University being on the Selection Committee for recruiting the members of the teaching staff. So long as the persons chosen have the qualifications prescribed by the University, the choice must be left to the management. That is part of the fundamental right of the minorities to administer the educational institution established by them.

A reliance was also placed in support of the contention on the judgement of the Hon'ble Supreme Court in the case of
Sindhi Education Society and another vs. Chief Secretary, Government of NCT of Delhi and others
reported in (2010) 8 Supreme Court Cases 49, wherein, the Hon'ble Supreme Court has been pleased to lay down as under:

"101. To appoint a teacher is part of the regular administration and management of the school. Of course, what should be the qualification or eligibility criteria for a teacher to be appointed can be defined and, in fact, has been defined by the Government of NCT of Delhi and within those specified parameters, the right of a linguistic minority institution to appoint a teacher cannot be interfered with. The paramount feature of the above laws was to bring efficiency and excellence in the field of school education and, therefore, it is expected of the minority institutions to select the best teacher to the faculty. To provide and enforce any regulations, which will practically defeat this purpose would have to be avoided. A linguistic minority is entitled to conserve its language and culture by a constitutional mandate. Thus, it must select people who satisfy the prescribed criteria, qualification and eligibility and at the same time ensure better cultural and linguistic compatibility to the minority institution.

102. At this stage, at the cost of repetition, we may again refer to the judgment of this Court in T.M.A.Pai case, where in para 123, the Court specifically noticed that while it was permissible for the State and its educational authorities to prescribe qualifications of a teacher, once the teachers possessing the requisite qualifications were selected by the minorities for their educational institutions, the State would have no right to veto the selection of the teachers. Further, the Court specifically noticed the view recorded in reference to Kerala Education Bill, 1957 case, and to Clauses 11 and 12 of the Bill in particular, where the learned Judge had declared that, it is the law declared by the Supreme Court in subsequently contested cases as opposed to the Presidential Reference, which would have a binding effect and said: (T.M.A.Pai Case, SCC p.571, para 123)
"123.... '109...The words "as at present advised" as well as the preceding sentence indicate that the view expressed by this Court in Kerala Education Bill, 1957, in this respect was hesitant and tentative and not a final view in the matter.' *"

What the Court had expressed in para 123 above, appears to have found favour with the Bench dealing with T.M.A.Pai. In any case, nothing to the contrary was observed or held in the subsequent judgment by the larger Bench.

103. The conecept of equality stated under
Article 30(2)
has to be read in conjunction with the protection under
Article 29
and thus it must then be given effect to achieve excellence in the field of education. Providing of grand-in-aid, which travels from
Article 30(2)
to the provisions of the
DSE Act
and Chapter VI of the Rules framed thereunder, is again to be used for the same purpose, subject to regulations which themselves must fall within the permissible legislative competence. The purpose of grant-in-aid cannot be construed so as to destroy, impair or even dilute the very character of the linguistic minority institutions. All these powers must ultimately stand in comity to the provisions of the Constitution, which is the paramount law. The Court will have to strike a balance between different facets relating to grand-in-aid, right to education being the fundamental right, protection available to religious or linguistic minorities under the Constitution and the primary object to improve and provide efficiency and excellence in school education.

104. In our considered view, it will not be permissible to infringe the constitutional protection in exercise of State policy or by a subordinate legislation to frame such which will infringe upon the character or in any way substantially dilute the right of the minority to administer and manage affairs of its school. Even though in Mohinder Kaur the Bench of this Court held that upon restoration of the minority character of the institution, the provisions of the Act and the Rules framed thereunder would cease to apply to a minority institution, we will would not go that far and would preferably follow the view expressed by the larger Bench of this Court in T.M.A.Pai case and even rely upon other subsequent judgments, which have taken the view that the State has the right to frame such regulations which will achieve the object of the Act. Even if it is assumed that there is no complete eclipse of the
DSE Act
in the Rules in the case of minority institutions, still Rule 64(1)(b), if enforced, would adversely affect and dilute the right and protection available to the minority school under the Constitution. is part of the fundamental right of the minorities to administer the educational institution established by them.

111. A linguistic minority has constitution and character of its own. A provision of law or a circular, which would be enforced against the general class, may not be enforceable with the same rigours against the minority institution, particularly where it relates to establishment and manage of the school. It has been held that founders of the minority institution have faith and confidence in their own committee or body consisting of the persons selected by them. Thus, they could choose their managing committee as well as they have a right to choose its teachers. Minority institutions have some kind of autonomy in their administration. This would entail the right to administer effectively and to manage and conduct the affairs of the institution. There is a fine distinction between a restriction on the right of administration and a regulation prescribing the manner of administration. What should be prevented is the maladministration. Just as regulatory measures are necessary for maintaining the educational character and content of the minority institutions, similarly, regulatory measures are necessary for ensuring orderly, efficient and sound administration.

112. Every linguistic minority may have its own social, economic and cultural limitations. It has a constitutional right to conserve such culture and language. Thus, it would have a right to choose teachers, who possess the eligibility and qualifications, as provided, without really being impressed by the fact of their religion and community. Its own limitations may not permit, for cultural, economic or other good reasons, to induct teachers from a particular class or community. The direction, as contemplated under Rule 64(1)(b), could be enforced against the general or majority category of the government-aided schools but, it may not be appropriate to enforce such condition against linguistic minority schools. This may amount to interference with their right of choice and, at the same time, may dilute their character of linguistic minority. It would be impermissible in law to bring such actions under the cover of equality which in fact, would diminish the very essence of their character or status. Linguistic and cultural compatibility can be legitimately claimed as one of the desirable features of a linguistic minority in relation to selection of eligible and qualified teachers.

113. A linguistic minority institution is entitled to the protection and the right of equality enshrined in the provisions of the Constitution. The power is vested in the State to frame regulations, with an object to ensure better organisation and development of school education and matters incidental thereto. Such power must operate within its limitation while ensuring that it does not, in any way, dilute or impair the basic character of linguistic minority. Its right to establish and administer has to be construed liberally to bring it in alignment with the constitutional protections available to such communities.

114. The minority society can hardly be compelled to perform acts or deeds which per se would tantamount to infringement of its right to manage and control. In fact, it would tantamount to imposing impermissible restriction. A school which has been established and granted status of a linguistic minority for years, it will not be proper to stop its grand-in-aid for the reason that it has failed to comply with a condition or restriction which is impermissible in law, particularly, when the teachers appointed or proposed to be appointed by such institution satisfy the laid down criteria and/or eligibility conditions. The minority has an inbuilt right to appoint persons, which in its opinion are better culturally and linguistically compatible to the institution.

119. Besides that, State actions should be actio quaelibet it sua via and every discharge of its duties, functions and governance should also be within the constitutional framework. This principle equally applies to the Government while acting in the field of reservation as well. It would not be possible for the Courts to permit the State to impinge upon or violate directly or indirectly the constitutional rights and protections granted to various classes including the minorities. Thus, the State may not be well within its constitutional duty to compel the linguistic minority institution to accept a policy decision, enforcement of which will infringe their fundamental right and/or protection. On the contrary, the minority can validly question such a decision of the State in law. The service in an aided linguistic minority school cannot be construed as "a service under the State" even with the aid of
Article 12
of the Constitution. Resultantly, we have no hesitation in coming to the conclusion that Rule 64(1)(b) cannot be enforced against the linguistic minority school. Having answered this question in favour of the appellant and against the State, we do not consider it necessary to go into the constitutional validity or otherwise of Rule 64(1)(b) of the Rules, which question we leave open."

25. It is the contention of the learned counsel that the Management's choice of teachers has a direct and corresponding right on the parents and children of the minority community to educate the children in institutions having atmosphere congenial to their religion, language and culture. In support of this contention, reference is made to The Kerala Education Bill, 1957 under reference
Article 143(1)
of the Constitution of India with regard to Kerala Education Bill, 1957 reported in (1959) 1 SCR 995, wherein, the Hon'ble Supreme Court was pleased to lay down as under:

"47. We now come to the last category of educational institutions established and administered by minority communities which seek only recognition but not aid from the State. The extreme arguments advanced with regard to recognition by learned counsel for the State of Kerala and learned counsel for the two Anglo-Indian schools and learned counsel for the Muslim institutions proceed on the same lines as those advanced respectively by them on the question as to granting of aid, namely, that the State of Kerala maintains that the minority communities may exercise their fundamental right under
Article 30(1)
by establishing educational institutions of their choice wherever they like and administer the same in their own way and need not seek recognition from the Government, but that if the minority communities desire to have State recognition they must submit to the terms imposed, as conditions precedent to recognition, on every educational institution. The claim of the educational institutions of the minority communities, on the other hand, is that their fundamental right under
Article 30(1)
is absolute and cannot be subjected to any restriction whatever. Learned counsel for the two Anglo-Indian schools appearing on this reference, relying on some decisions of the American Supreme Court, maintains that a child is not the creature of the State and the Parents have the right to get their child educated in educational institutions of their choice. Those American decisions proceed on the language of the due process clauses of the Fifth and the Fourteenth Amendments and have no application to a situation arising under our Constitution and we need not, therefore, discuss them in detail here. Adverting to the two conflicting views propounded before us we repeat that neither of the two extreme propositions can be sustained and we have to reconcile the two, if possible,
Article 26
gives freedom to religious denominations or any section thereof, subject to public order, morality and health to establish and maintain institutions for religious and charitable purposes.
Article 29(1)
gives protection to any section of citizens residing in the territory of India having a distinct language, script or culture of its own the right to conserve the same. As we have already stated, the distinct language, script or culture of a minority community can best be inculcated into the impressionable minds of the children of their community. It is through educational institutions that the language and script of the minority community can be preserved, improved and strengthened. It is, therefore, that
Article 30(1)
confers on all minorities, whether based on religion or language, the right to establish and administer educational institutions of their choice. The minorities, quite understandably, regard it as essential that the education of their children should be in accordance with the teachings of their religion and they hold, quite honestly, that such an education cannot be obtained in ordinary schools designed for all the members of the public but can only be secured in schools conducted under the influence and guidance of people well versed in the tenets of their religion and in the traditions of their culture. The minorities evidently desire that education should be imparted to the children of their community in an atmosphere congenial to the growth of their culture. Out Constitution makers recognised the validity of their claim and to allay their fears conferred to them the fundamental rights referred to above. But the conservation of the distinct language, script or culture is not the only object of choice of the minority communities. They also desire that scholars of their educational institutions should go out in the world well and sufficiently equipped with the qualifications necessary for a useful career in life. But according to the Education Code now in operation to which it is permissible to refer for ascertaining the effect of the impugned provisions on existing state of affairs, the scholars of unrecognised schools are not permitted to avail themselves of the opportunities for higher education in the University and are not eligible for entering the public services. Without recognition, therefore, the educational institutions established or to be established by the minority communities cannot fulfil the real objects of their choice and the rights under
Article 30(1)
cannot be effectively exercised. The right to establish educational institutions of their choice must, therefore, mean the right to establish real institutions which will effectively serve the needs of their community and the scholars who resort tot their educational institutions. There is, no doubt, no such thing as fundamental right to recognition by the State but to deny recognition to the educational institutions except upon terms tantamount to the surrender of their constitutional right of administration of the educational institutions of their choice is in truth and in effect to deprive them of their rights under
Article 30(1).
We repeat that the legislative power is subject to the fundamental rights and the legislature cannot indirectly take away or abridge the fundamental rights which it could not do directly and yet that will be the result if the said Bill containing any offending clause becomes law. According to the decisions of this Court referred to above, in judging the validity of any law regard must be had to its real intendment and effect on the rights of the aggrieved parties, rather than to its form. According to the Education Codes certain conditions are prescribed  whether as legislative or as executive measures we do not stop to enquire as conditions for the grant of recognition and it is said, as it was said during the discussion on the question of aid, that the said Bill imposes no more burden than what these minority educational institutions along with those of other communities are already subjected to. As we have observed, there can be no question of the loss of a fundamental right merely by the non-exercise of it. There is no case here of any estoppel, assuming that there can be any estoppel against the Constitution. Therefore, the impugned provisions of the said Bill must be considered on its merits."

A reliance is also placed on the judgment of the Hon'ble Supreme Court in the case of
Ahmedabad St.Xavier's College Society vs. State of Gujarat and another
reported in (1974) 1 Supreme Court Cases 717, wherein, the Hon'ble Supreme Court has been pleased to lay down as under:

74. Clause (1) of
Article 30
gives right to all minorities, whether based on religion or language, to establish and administer educational institutions of their choice. Analysing that clause it would follow that the right which has been conferred by the clause is on two types of minorities. Those minorities may be based either on religion or on language. The right conferred upon the said minorities is to establish and administer educational institutions of their choice. The word establish indicates the right to bring into existence, while the right to administer an institution means the right to effectively manage and conduct the affairs of the institution. Administration connotes management of the affairs of the institution. The 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 interest of the community in general and the institution in particular will be best served. The words of their choice qualify the educational institutions and show that the educational institutions established and administered by the minorities need not be of some particular class; the minorities have the right and freedom to establish and administer such educational institutions as they choose. Clause (2) of
Article 30
prevents the State from making discrimination in the matter of grant of aid to any educational institution on the ground that the institution is under the management of a minority, whether based on religion or language.

75. Before we deal with the contentions advanced before us and the scope and ambit of
Article 30
of the Constitution, it may be pertinent to refer to the historical background. India is the second-most populous country of the world. The people inhabiting this vast land profess different religions and speak different languages. Despite the diversity of religion and language, there runs through the fabric of the nation the golden thread of a basic innate unity. It is a mosaic of different religions, languages and cultures. Each of them has made a mark on the Indian polity and India today represents a synthesis of them all. The closing years of the British rule were marked by communal riots and dissensions. There was also a feeling of distrust and the demand was made by a section of the Muslims for a separate homeland. This ultimately resulted in the partition of the country. Those who led the fight for independence in India always laid great stress on communal amity and accord. They wanted the establishment of a secular State wherein people belonging to the different religions should all have a feeling of equality and non-discrimination. Demand had also been made before the partition by sections of people belonging to the minorities for reservation of seats and separate electorates. In order to bring about integration and fusion of the different sections of the population, the framers of the Constitution did away with separate electorates and introduced the system of joint electorates, so that every candidate in an election should have to look for support of all sections of the citizens. Special safeguards were guaranteed for the minorities and they were made a part of the fundamental rights with a view to instil a sense of confidence and security in the minorities. Those provisions were a kind of a Charter of rights for the minorities so that none might have the feeling that any section of the population consisted of first-class citizens and the others of second-class citizens. The result was that minorities gave up their claims for reservation of seats. Sardar Patel, who was the Chairman of the Advisory Committee dealing with the question of minorities, said in the course of his speech delivered on February 27, 1947:

This Committee forms one of the most vital parts of the Constituent Assembly and one of the most difficult tasks that has to be done by us is the work of this committee. Often you must have heard in various debates in British Parliament that have been held on this question recently and before when it has been claimed on behalf of the British Government that they have a special responsibility  a special obligation  for protection of the interests of the minorities. They claim to have more special interest than we have. It is for us to prove that it is a bogus claim, a false claim, and that nobody can be more interested than us in India in the protection of our minorities. Our mission is to satisfy every interest and safeguard the interests of all the minorities to their satisfaction. (B. Shiva Rao: The Framing of Indias Constitution: Select Documents, Vol. II, p. 66.)
It is in the context of that background that we should view the provisions of the Constitution contained in
Articles 25
to 30. The object of
Articles 25
to 30 was to preserve the rights of religious and linguistic minorities, to place them on a secure pedestal and withdraw them from the vicissitudes of political controversy. These provisions enshrined a befitting pledge to the minorities in the Constitution of the country whose greatest son had laid down his life for the protection of the minorities. As long as the Constitution stands as it is today, no tampering with those rights can be countenanced. Any attempt to do so would be not only an act of breach of faith, it would be constitutionally impermissible and liable to be struck down by the courts. Although the words secular State are not expressly mentioned in the Constitution, there can be no doubt that our Constitution-makers wanted establishment of such a state. The provisions of the Constitution were designed accordingly. There is no mysticism in the secular character of the state. Secularism is neither anti God, nor pro-God; it treats alike the devout, the agnostic and the atheist. It eliminates God from the matters of the State and ensures that no one shall be discriminated against on the ground of religion. The Constitution at the same time expressly guarantees freedom of conscience and the right freely to profess, practise and propagate religion. The Constitution-makers were conscious of the deep attachment the vast masses of our country had towards religion, the sway it had on their minds and the significant role it played in their lives. To allay all apprehensions of interference by the legislature and the executive in matters of religion, the rights mentioned in
Articles 25
to 30 were made a part of the fundamental rights and religious freedom contained in those articles was guaranteed by the Constitution.

76. As in the case of religion so in the case of language, the importance of the matter and the sensitivity of the people on this issue was taken note of by the Constitution-makers. Language has a close relationship with culture. According to the Royal Commission on Bilingualism and Biculturalism (1965), the vitality of the language is an essential condition for the preservation of a culture and an attempt to provide for cultural equality is primarily an attempt to make provisions for linguistic equality (quoted on p. 590 of Canadian Constitutional Law in a Modern Perspective by J. Noel Lyon and Ronald G. Atkey).

77. The idea of giving some special rights to the minorities is not to have a kind of a privileged or pampered section of the population but to give to the minorities a sense of security and a feeling of confidence. The great leaders of India since time immemorial had preached the doctrine of tolerance and catholicity of outlook. Those noble ideas were enshrined in the Constitution. Special rights for minorities were designed not to create inequality. Their real effect was to bring about equality by ensuring the preservation of the minority institutions and by guaranteeing to the minorities autonomy in the matter of the administration of those institutions. The differential treatment for the minorities by giving them special rights is intended to bring about an equilibrium, so that the ideal of equality may not be reduced to a mere abstract idea but should become a living reality and result in true, genuine equality, an equality not merely in theory but also in fact. The majority in a system of adult franchise hardly needs any protection. It can look after itself and protect its interests. Any measure wanted by the majority can without much difficulty be brought on the statute book because the majority can get that done by giving such a mandate to the elected representatives. It is only the minorities who need protection, and
Article 30
, besides some other articles, is intended to afford and guarantee that protection. It may be apposite in this context to refer to the observations made by Latham, C.J. in Adelaide Co. of Jehovahs Witnesses Inc. v. Commonwealth11 while dealing with Section 116 of the Commonwealth of Australia (Constitution) Act which provides inter alia that the Commonwealth shall not make any law for prohibiting the free exercise of any religion. Said the learned Chief Justice:

... it should not be forgotten that such a provision as Section 116 is not required for the protection of the religion of a majority. The religion of the majority of the people can look after itself. Section 116 is required to protect the religion (or absence of religion) of minorities, and, in particular, of unpopular minorities.

135. The reason why the Constitution-makers were at pains to grant religious minorities the fundamental right to establish and administer educational institutions of their choice is to give the parents in those communities an opportunity to educate their children in institutions having an atmosphere which is congenial to their religion. Whatever be ones own predilections those who think that man does not live by bread alone but also by the word that comes from God cannot remain indifferent to the problem of religion in relation to and as part of education.

136. As a matter of fact, according to several religious minorities, the State maintains a system of schools and colleges which is not completely satisfactory to them, inasmuch as no place is given to religion and morality. The sheer omission of religion from curriculum is itself a pressure against religion. Since they realize that the teaching of religion and instruction in the secular branches cannot rightfully or successfully be separated one from the other, they are compelled to maintain their own system of schools and colleges for general education as well as for religious instruction.

It is important to examine the raison detre of educational institutions administered by religious groups. Clearly, their establishment does not come about because of a deep conviction that such institutions will be able to reach the facts of literature, geography or mathematics better than state schools. Rather, such schools are started with a primarily religious objective  to secure the opportunity for direct religious instruction and to develop a religious atmosphere and viewpoint even for the study of literature, geography and mathematics. In other words, religious body establishes and maintains schools in order to create a total environment which will be favourable to the promotion of its particular religious values.27

137. It is perhaps, possible to secularize subjects such as mathematics, physics or chemistry, but as Justice Jackson said:

Music without sacred music, architecture minus the cathedral, or painting without the scriptural themes would be eccentric and incomplete, even from a secular point of view. Yet the inspirational appeal of religion in these guises is often stronger than in forthright sermon. Even such a science as biology raises the issue between evolution and creation as an explanation of our presence on this planet. But how one can teach, with satisfaction or even with justice to all faiths, such subjects as the story of the Reformation, the Inquisition is more than one can understand. It is too much to expect that mortals will teach subjects about which their contemporaries have passionate controversies with the detachment they may summon to teachings about remote subjects such as Confucius or Mohamet.

138. The State cannot insist that the children belonging to the religious minority community should be educated in State-maintained educational institutions or in educational institutions conducted by the majority. The States interest in education, so far as religious minorities are concerned, would be served sufficiently by reliance on secular education accompanied by optional religious training in minority schools and colleges, if the secular education is conducted there according to the prescribed curriculum and standard.
Article 28(3)
implies that a religious minority administering an educational institution imparting general secular education has the liberty to provide for religious education in the institution. The continued willingness to rely on colleges conducted by religious or linguistic minorities for imparting secular education strongly suggests that a wide segment of informed opinion has found that these colleges do an acceptable job of providing secular education. The State, concededly, has power to regulate and control the education of its children, but it cannot, by a general law compelling attendance at public school or college, preclude attendance at the school or college established by the religious minority, when the parents seek to secure the benefit of religious instruction not provided in public schools. The parents have the right to determine to which school or college their children should be sent for education.

139. We fail to see how affiliation of an educational institution imparting religious instruction in addition to secular education to pupils as visualized in
Article 28(3)
would derogate from the secular character of the state. Our Constitution has not erected a rigid wall of separation between church and state. We have grave doubts whether the expression secular state as it denotes a definite pattern of church and state relationship can with propriety be applied to India. It is only in a qualified sense that India can be said to be a secular state. There are provisions in the Constitution which make one hesitate to characterize our state as secular. Dr Radhakrishnan has said:

The religious impartiality of the Indian State is not to be confused with secularism or atheism. Secularism as here defined is in accordance with the ancient religious tradition of India. It tries to build up a fellowship of believers, not by subordinating individual qualities to the group mind but by bringing them into harmony with each other. This dynamic fellowship is based on the principle of diversity in unity which alone has the quality of creativeness.29 Secularism here does not mean irreligion or atheism or even stress on material comforts. It proclaims that it lays stress on the universality of spiritual values which may be attained by a variety of ways.30

140. In short secularism in the context of our Constitution means only an attitude of live and let live developing into the attitude of live and help live31.

141. The fundamental postulate of personal liberty excludes any power of the State to standardize and socialize its children by forcing them to attend public schools only. A child is not a mere creature of the State. Those who nurture him and direct his destiny have the right coupled with the high duty to recognize and prepare him for additional obligations32.

142. The parental right in education is the very pivotal point of a democratic system. It is the touchstone of difference between democratic education and monolithic system of cultural totalitarianism. When the modern State with its immense power embarks upon the mission of educating its children, the whole tendency is towards state monopoly. The fundamental right of the religious and linguistic minorities to establish and administer educational institutions of their choice is the only legal barrier to confine the bursting expansionism of the new Educational Leviathan. Great diversity of opinion exists among the people of this country concerning the best way to train children for their place in society. Because of these differences and because of reluctance to permit a single iron cast system of education to be imposed upon a nation compounded of several strains, the Constitution has provided this right to religious and linguistic minorities.

143. Today, education is an important function of State and local Governments. Compulsory school attendance laws and the mounting expenditure for education both demonstrate a recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training and in helping him to adjust normally to his environment (see
Brown v. Board of Education
).

144. If there is a symbol of democracy in education, it is not the public school as the single democratic school. Rather it is the co-existence of several types of schools and colleges including affiliated colleges on a footing of juridical equality with a consequent proportionately equal measure of State encouragement and support. And, juridical equality postulates that the religious minority should have a guaranteed right to establish and administer its own educational institutions where it can impart secular education in a religious atmosphere.

145. The States interest in secular education may be defined broadly as an interest in ensuring that children within its boundaries acquire a minimum level of competency in skills, as well as a minimum amount of information and knowledge in certain subjects. Without such skill and knowledge, an individual will be at a severe disadvantage both in participating in democratic self-Government and in earning a living. No one can question the constitutional right of parents to satisfy their State-imposed obligation to educate their children by sending them to schools or colleges established and administered by their own religious minority so long as these schools and colleges meet the standards established for secular education.

146. The concept of the common pattern of secular education needs to be brought down to the earth of reality and divested of its fuzzy mystification. The concept has nothing to do with an artificial Government-promoted levelling of all differences. The public school is not a temple in which all children are to be baptized into unity of secular democratic faith, while those who stand without are faintly heretical.

In democratic countries therefore the freedom of offering education of different types with different values within the framework of the constitution should not be needlessly circumscribed. This is intimately connected with the freedom of thought. The control over colleges suggested above should be such as to secure ultimately observance of these high principles by colleges of their own accord and not through fear of action by the university.

147. Whatever spiritual mission of promoting unity the government may have, it is conditioned by its primal duty of promoting justice, respecting guaranteed rights and ensuring equality of differences.

148. The framers of the Constitution were not unaware that under the system which they created, most of the legislative or Governmental curtailments of the guaranteed fundamental rights will have the support of legislative judgment that public interest will be served by its curtailment than by its constitutional protection. There can be no surrender of constitutional protection of the right of minorities to popular will masquerading as the common pattern of education. This is the reason why this Court has, time and again pointed to the importance of a searching judicial enquiry into legislative judgment in situations where prejudice against discrete and insular minorities may tend to curtail rights intended to protect them. That the minorities might be unable to find protection in political process and, therefore, the Court might appropriately regard their interest with special solicitude was suggested by Stone, J. in his famous foot-note to United States v. Carolene Prod. Code.

26. It is the further contention of the learned counsel for the petitioner that in the matter of selection and appointment of teaching staff, the State's regulatory power in minority colleges is restricted to the prescription of qualification, which cannot extend to the prescription of methodology of recruitment, constitution of selection committee etc. The contention of the learned counsel for the petitioner was that right to administer contains four essential elements:

a) Right to constitute the Managing Committee / Governing Body with persons on whom the founders have faith and confidence.

b) Right to select and appoint teachers of choice having not only general qualifications (educational and experience), but compatibility with the minority's ideals, aims, aspirations, outlook, philosophy, language, religion and culture.

c) Right to admit students of their choice with due regard to merit.

d) Right to use the asserts and properties for the benefit of the institution.

Therefore, the right to administer to have a selection committee of their choice to administer the minority institutions cannot be regulated by the regulations in case of minority institutions.

27. In support of his contention, learned counsel for the petitioner placed reliances on the following judgments of the Hon'ble Supreme Court, holding therein as under:

i) Ahmedabad St.Xavier's College Society vs. State of Gujarat and another
(supra)

19. The entire controversy centres round the extent of the right of the religious and linguistic minorities to administer their educational institutions. The right to administer is said to consist of four principal matters. First is the right to choose its managing or governing body. It is said that the founders of the minority institution have faith and confidence in their own committee or body consisting of persons elected by them. Second is the right to choose its teachers. It is said that minority institutions want teachers to have compatibility with the ideals, aims and aspirations of the institution. Third is the right not to be compelled to refuse admission to students. In other words, the minority institutions want to have the right to admit students of their choice subject to reasonable regulations about academic qualifications. Fourth is the right to use its properties and assets for the benefit of its own institution.

ii) N.Ammad vs. Manager, Emjay High School and others
reported in (1998) 6 Supreme Court Cases 674,

27. Shri R.F. Nariman, learned Senior Counsel contended, alternatively, that if the management is anxious to find out the most qualified person to fill up the post of Headmaster, the management should have advertised for the post inviting applications from qualified persons. To buttress up the said argument learned counsel cited a two-Judge Bench decision of this Court in
Shainda Hasan v. State of U.P.8 In
that case the management of a college advertised for the post of Principal and when the appellant was selected by relaxing the qualifications the University declined to accord approval thereto. When the appellant approached this Court, learned Judges suggested that the University might not interfere with the selection and appointment under the facts of that case. But no legal proposition has been laid down that the selection process must be through advertisement. According to us, it is for the management of the minority educational institution to choose the modality for selecting the qualified persons for appointment.

28. Thus the managements right to choose a qualified person as the Headmaster of the School is well insulated by the protective cover of
Article 30(1)
of the Constitution and it cannot be chiselled out through any legislative act or executive rule except for fixing up the qualifications and conditions of service for the post. Any such statutory or executive fiat would be violative of the fundamental right enshrined in the aforesaid article and would hence be void.

29. In the present case, nobody has alleged that the 4th respondent does not possess the qualifications prescribed for the post of Headmaster. If that is the position, the management has the right and freedom to appoint him as the Headmaster of the School whether it is by bringing him down from another school or even from outside the State. We, therefore, concur with the conclusion of the Division Bench of the High Court in the impugned judgment and dismiss these appeals.

iii) Board of Secondary Education and Teachers Training vs. Jt.Director of Public Instructions, Sagar and others
reported in 1998 (8) SCC 555

3. The decisions of this Court make it clear that in the matter of appointment of the Principal, the management of a minority educational institution has a choice. It has been held that one of the incidents of the right to administer a minority educational institution is the selection of the Principal. Any rules which take away this right of the management have been held to be interfering with the right guaranteed by
Article 30
of the Constitution. In this case, both Julius Prasad selected by the management and the third respondent are qualified and eligible for appointment as Principal according to rules. The question is whether the management is not entitled to select a person of their choice. The decisions of this Court including the decision in
State of Kerala v. Very Rev. Mother Provincial1
and Ahmedabad St. Xaviers
College Society v. State of Gujarat2
make it clear that this right of the minority educational institution cannot be taken away by any rules or regulations or by any enactment made by the State. We are, therefore, of the opinion that the High Court was not right in holding otherwise. The State has undoubtedly the power to regulate the affairs of the minority educational institutions also in the interest of discipline and excellence. But in that process, the aforesaid right of the management cannot be taken away, even if the Government is giving hundred per cent grant. We need not go into any other question in this appeal.

iv) T.M.A. Pai Foundation and others vs. State of Karnataka and others
reported in (2002) 8 SCC 481

50. The right to establish and administer broadly comprises the following rights:

(a) to admit students;

(b) to set up a reasonable 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 employees.

54. The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions.

254. The expression to establish means to set up on permanent basis. The expression to administer means to manage or to attend to the running of the affairs. A lucid connotation of this expression was given by Ray, C.J., in St. Xaviers case3 as under: (SCC pp. 745-46, para 19)
The right to administer is said to consist of four principal matters. First is the right to choose its managing or governing body. It is said that the founders of the minority institution have faith and confidence in their own committee or body consisting of persons elected by them. Second is the right to choose its teachers. It is said that minority institutions want teachers to have compatibility with the ideals, aims and aspirations of the institution. Third is the right not to be compelled to refuse admission to students. In other words, the minority institutions want to have the right to admit students of their choice subject to reasonable regulations about academic qualifications. Fourth is the right to use its properties and assets for the benefit of its own institution.

255. In none of the subsequent decisions of this Court, this exposition was departed from.

v) Secretary, Malankara Syrian Catholic College vs T.Jose and others
reported in (2007) 1 SCC 386

12. The rival contentions give rise to the following questions:

(i) To what extent, the State can regulate the right of the minorities to administer their educational institutions, when such institutions receive aid from the State?

(ii) Whether the right to choose a Principal is part of the right of minorities under
Article 30(1)
to establish and administer educational institutions of their choice. If so, would
Section 57(3)
of the Act violate
Article 30(1)
of the Constitution of India?

19.The general principles relating to establishment and administration of educational institution by minorities may be summarised thus:

(i) The right of minorities to establish and administer educational institutions of their choice comprises the following rights:

(a) to choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution;

(b) to appoint teaching staff (teachers/lecturers and Headmasters/ Principals) as also non-teaching staff, and to take action if there is dereliction of duty on the part of any of its employees;

(c) to admit eligible students of their choice and to set up a reasonable fee structure;

(d) to use its properties and assets for the benefit of the institution.

(ii) The right conferred on minorities under
Article 30
is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-`-vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation, etc. applicable to all, will equally apply to minority institutions also.

(iii) The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under
Article 30(1).

(iv) Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/lecturers by adopting any rational procedure of selection.

(v) Extension of aid by the State does not alter the nature and character of the minority educational institution. Conditions can be imposed by the State to ensure proper utilisation of the aid, without however diluting or abridging the right under
Article 30(1).

20. Aided institutions give instruction either in secular education or professional education. Religious education is barred in educational institutions maintained out of the State funds. These aided educational minority institutions providing secular education or professional education should necessarily have standards comparable with non-minority educational institutions. Such standards can be attained and maintained only by having well-qualified professional teachers. An institution can have the services of good qualified professional teachers only if the conditions of service ensure security, contentment and decent living standards. That is why the State can regulate the service conditions of the employees of the minority educational institutions to ensure quality of education. Consequently, any law intended to regulate the service conditions of employees of educational institutions will apply to minority institutions also, provided that such law does not interfere with the overall administrative control of the management over the staff.

21. We may also recapitulate the extent of regulation by the State, permissible in respect of employees of minority educational institutions receiving aid from the State, as clarified and crystallised in T.M.A. Pai1. The State can prescribe:

(i) the minimum qualifications, experience and other criteria bearing on merit, for making appointments,

(ii) the service conditions of employees without interfering with the overall administrative control by the management over the staff,

(iii) a mechanism for redressal of the grievances of the employees,

(iv) the conditions for the proper utilisation of the aid by the educational institutions, without abridging or diluting the right to establish and administer educational institutions.

In other words, all laws made by the State to regulate the administration of educational institutions and grant of aid will apply to minority educational institutions also. But if any such regulations interfere with the overall administrative control by the management over the staff, or abridges/dilutes, in any other manner, the right to establish and administer educational institutions, such regulations, to that extent, will be inapplicable to minority institutions.

vi) Sindhi Education Society and another vs. Chief Secretary, Government of NCT of Delhi and others
(supra)
"90. The right to establish and administer includes a right to appoint teachers. Thus, except providing grant-in-aid as per the DSE Rules ad having no power to discriminate in terms of
Article 30(2)
of the Constitution, the Government has a very limited regulatory control over the minority institutions and no control whatsoever on the managing committee, internal management of the school and, of course, has no power to take over such an institution. This Court has also expressed the view in some judgmenets that in respect of minority or even non-minority institutions, steps can be taken even for closure of such institutions, in the national interest which of course may be a rare exception. Once the State lacks basic power of jurisdiction to make special provisions and reservations in relation to minority institutions, which do not form part of service under the State, it will be difficult for the Court to hold that Rule 64(1)(b) can be enforced against aided minority institution. There are still other aspects which can usefully be examined to analyse this issue in a greater detail."

Thereafter, reliance was placed on the following judgements of the Hon'ble Supreme Court:

i) State of Kerala, etc. vs. Very Rev. Mother Provincial, etc reported in (1970) 2 SCC 417

11.
The Act
as stated already consists of 78 sections arranged under 9 Chapters. Chapter VIII is headed Private Colleges and Chapter IX Miscellaneous. Chapter I contains the short title and commencement (
Section 1
) and definitions (
Section 2
). We are concerned with some definitions in
Section 2
and Chapters VIII and IX. The other chapters lay down the constitution of University and contain matters relating thereto. They are not in dispute. The High Court in its judgment has carefully summarised the impugned provisions and it is not necessary for us to cover the same ground. We shall content ourselves by mentioning the important aspects briefly. College in the Act means an institution maintained by, or affiliated to, the University, in which instruction is provided in accordance with the provisions of the Statutes, Ordinances and Regulations. These are framed by the University. Educational Agency means any person or body of persons who or which establishes and maintains a private college. Private College means a college maintained by an agency other than the Government or the University and affiliated to the University. Principal means the head of a college. By teacher as used in the Act is meant a Principal, Professor, Assistant-Professor, Reader, Lecturer, Instructor or such other person imparting instruction or supervising research and whose appointment has been approved by the University in any of the colleges or recognised institutions. Recognised teacher means a person employed as a teacher in an affiliated institution and whose appointment has been approved by the University. There is such overlap between college, teacher and recognised teacher but there is no antinomical confusion which might have otherwise resulted. These definitions by themselves are not questionable but in the context of the provisions of Chapters VIII and IX, about to be referred to, the insistence on the recognition by the University is claimed to be interference with the freedom of management. Chapter VIII embraces Sections 47 to 61. It begins with the definition of corporate management which means a person or body of persons who or which manages more than one private college. Sections 48 and 49 deal respectively with (a) the governing body for private college not under corporate management and (b) with managing council for private colleges under corporate management. In either case the education agency (by which term we denote the educational agency of a private college as also corporate management, that is to say, the person or body of persons who or which manages more than one private college) is required to set up a governing body for private college or a managing council for private colleges under one corporate management. The two sections embody the same principles and differ only because in one case there is one institution and in the other more than one. Both consists of 7 sub-sections. Under these provisions the educational agency or the corporate management has to establish a governing body or a managing council respectively. The sections give the compositions of the two bodies. The governing body set up by the educational agency is to consist of 11 members and the managing council of 21 members. The 11 members of the governing body are (i) the principal of the private college (ii) the manager of the private college (iii) a person nominated by the University in accordance with the provisions in that behalf contained in the Statutes (iv) a person nominated by the Government (v) a person elected in accordance with such procedure as may be prescribed by the Statutes of the University from among themselves by the permanent teachers of the private college and (vi-xi) not more than six persons nominated by the educational agency. The composition of the managing council consists of a principal in rotation from the private colleges, manager of the private colleges, the nominees of the University and the Government as above described, two elected representatives of the teachers and not more than 15 members nominated by the educational agency.
The Act
ought to have used the expression corporate management instead of educational agency but the meaning is clear.

12. It will thus be seen that a body quite apart from the educational agency or the corporate management is set up. Sub-section (2) in either section make these bodies into bodies corporate having perpetual succession and a common seal. The manager of the college or colleges, as the case may be, is the Chairman in either case [sub-section (3)]. Sub-section (4) then says that the members shall hold office for a period of 4 years from the date of the constitution. Sub-section (5) then says as follows:

It shall be the duty of the Governing body/(Managing Council) to administer the private college (all the private colleges under the corporate management) in accordance with the provisions of this Act and the Statutes, Ordinances, Regulations, Bye-Laws and Orders made thereunder.
(We have attempted to combine the two provisions here. In the case of governing body the sub-section is to be read omitting the words in brackets and in the case of managing council the italised words are to be omitted and the sub-section read with the words in brackets.)

13. Sub-section (6) then lays down that the powers and functions of the governing body (the managing council), the removal of members thereof and the procedure to be followed by it, including the delegation of its powers, shall be prescribed by the Statutes. Sub-section (7) lays down that decisions in either of the two bodies shall be taken at meetings on the basis of simple majority of the members present and voting.

14. These sections were partly declared ultra vires of
Article 30(1)
by the High Court as they took away from the founders the right to administer their own institution. It is obvious that after the erection of the governing body or the managing council the founders or even the community has no hand in the administration. The two bodies are vested with the complete administration of the institutions. These bodies have a legal personality distinct from the educational agency or the corporate management. They are not answerable to the founders in the matter of administration. Their powers and functions are determined by the University laws and even the removal of the members is to be governed by the Statutes of the University. Sub-sections (2), (4), (5) and (6) clearly vest the management and administration in the hands of the two bodies with mandates from the University.

15. In attempting to save these provisions Mr Mohan Kumarmangalam drew attention to two facts only. The first is that the nominees of the educational agencies or the corporate management have the controlling voice and that the defect, if any, must be found in the Statutes, Ordinances, Regulations, Bye-laws and Orders of the University and not in the provisions of the Act. Both these arguments are not acceptable to us. The Constitution contemplates the administration to be in the hands of the particular community. However, desirable it might be to associate nominated members of the kind mentioned in Sections 48 and 49 with other members of the governing body or the managing council nominees, it is obvious that their voice must play a considerable part in management. Situations might be conceived when they may have a preponderating voice. In any event, the administration goes to a distinct corporate body which is in no way answerable to the educational agency or the corporate management. The founders have no say in the selection of the members nominated or selected except those to be nominated by them. It is, therefore, clear that by the force of sub-sections (2), (4) and (6) of Sections 48 and 49 the minority community loses the right to administer the institution it has founded. Sub-section (5) also compels the governing body or the managing council to follow the mandates of the University in the administration of the institution. No doubt the Statutes, Ordinances, Regulations, Rules, Bye-laws and Orders can also be examined in the light of
Article 30(1)
but the blanket power so given to the University bears adversely upon the right of administration. This position is further heightened by the other provisions of the Act to which a reference is now needed.

16. Section 53, sub-sections (1), (2) and (3) confer on the Syndicate of the University the power to veto even the action of the governing body or the managing council in the selection of the principal. Similarly, sub-section (4) takes away from the educational agency or the corporate management the right to select the teachers. The insistence on merit in sub-section (4) or on seniority-cum-fitness in sub-section (7) does not save the situation. The power is exercised not by the educational agency or the corporate management but by a distinct and autonomous body under the control of the Syndicate of the University. Indeed sub-section (9) gives a right of appeal to the Syndicate to any person aggrieved by the action of governing body or the managing council thus making the Syndicate the final and absolute authority in these matters. Coupled with this is the power of Vice-Chancellor and the Syndicate in sub-sections (2) and (4) of Section 56. These sub-sections read:

56. Conditions of service of teachers of private colleges.(1)* * *
(2) No teacher of a private college shall be dismissed, removed, or reduced in rank by the governing body or managing council without the previous sanction of the Vice-Chancellor or placed under suspension by the governing body or managing council for a continuous period exceeding fifteen days without such previous sanction.

(3) * * *
(4) A teacher against whom disciplinary action is taken shall have a right of appeal to the Syndicate, and the Syndicate shall have power to order reinstatement of the teacher in cases of wrongful removal or dismissal and to order such other remedial measures as it deems fit, and the governing body or managing council, as the case may be, shall comply with the order.
These provisions clearly take away the disciplinary action from the governing body and the managing council and confer it upon the University. Then comes Section 58 which reads:

58. Membership of Legislative Assembly, etc., not to disqualify teachers.A teacher of a private college shall not be disqualified for continuing as such teacher merely on the ground that he has been elected as a member of the Legislative Assembly of the State or of Parliament or of a local authority:

Provided that a teacher who is a member of the Legislative Assembly of the State or of Parliament shall be on leave during the period in which the Legislative Assembly or Parliament, as the case may be, is in session.
This enables political parties to come into the picture of the administration of minority institutions which may not like this interference. When this is coupled with the choice of nominated members left to Government and the University by sub-section (1)(d) of Sections 48 and 49, it is clear that there is much room for interference by persons other than those in whom the founding community would have confidence.

17. To crown all there is the provision of Section 63(1) which reads:

63. Power to regulate the management of private colleges.(1) Whenever Government are satisfied on receipt of a report from the University or upon other information that a grave situation has arisen in which the working of a private college cannot be carried on for all or any of the following reasons, namely:

(a) default in the payment of the salary of the members of the staff of the college for a period of not less than three months;

(b) wilful closing down of the college for a period of not less than one month except in the case of the closure of the college during a vacation;

(c) persistent default or refusal to carry out all or any of the duties imposed on any of the authorities of the college by this Act or the Statutes or Ordinances or Regulations or Rules or Bye-laws or lawful orders passed thereunder;

and that in the interest of private college it is necessary so to do, the Government may, after giving the governing body or managing council, as the case may be, the manager appointed under sub-section (1) of Section 50 and the education agency, if any, of the college a reasonable opportunity of showing cause against the proposed action and after considering the cause, if any, shown, by order, appoint the University to manage the affairs of such private temporarily for a period not exceeding two years:

Provided that in cases where action is taken under this sub-section otherwise than on report from the University, it shall be consulted before taking such action.

* * *
The remaining provisions of this section lay down an elaborate procedure for management in which even the governing body or the managing council have no say. Sub-section 63(1) involves the transfer of right to possession of the properties to the University. The High Court rightly pointed out that this section provides for compulsory requisition of the properties within
Article 31(2)
and
(2-A).
To be effective the section required the assent of the President under sub-section (3) and it was not obtained. Therefore the saving in
Article 31-A(1)(b)
is not available.

18. Mr Mohan Kumarmangalam brought to our notice passages from the Report of the Education Commission in which the Commission had made suggestions regarding the conditions of service of the teaching staff in the universities and the colleges and standards of teaching. He also referred to the Report of the Education Commission on the status of teachers, suggestions for improving the teaching methods and standards. He argued that what has been done by the
Kerala University Act
is to implement these suggestions in Chapters VIII and IX and particularly the impugned sections. We have no doubt that the provisions of the Act were made bona fide and in the interest of education but unfortunately they do affect the administration of these institutions and rob the founders of that right which the constitution desires should be theirs. The provisions, even if salutary cannot stand in the face of the constitutional guarantee. We do not, therefore, find it necessary to refer to the two reports.

ii) Ahmedabad St.Xavier's College Society vs. State of Gujarat and another
(supra)

40. The provisions contained in
Section 33-A(l)(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. These provisions are challenged on the ground that this amounts to invasion, of the fundamental right of administration. It is said that the governing body of the college is a part of its administration and therefore that administration should not be touched. The right to administer is the right to conduct and manage the affairs of the institution. This right is exercised through a body of persons in whom the founders of the institution have faith and confidence and who have full autonomy in that sphere. The right to administer is subject to permissible regulatory measures. Permissible regulatory measures are those which do not restrict the right of administration but facilitate it and ensure better and more effective exercise of the right for the benefit of the institution and through the instrumentality of the management of the educational institutions and without displacing the management. If the administration has to be improved it should be done through the agency or instrumentality of the existing management and not by displacing it. Restrictions on the right of administration imposed in the interest of the general public alone and not in the interests of and for the benefit of minority educational institutions concerned will affect the autonomy in administration.

41. Autonomy in administration means right to administer effectively and to manage and conduct the affairs of the institutions. The distinction is between a restriction on the right of administration and a regulation prescribing the manner of administration. The right of administration is day to day administration. The choice in the personnel of management is a part of the administration. The university will always have a right to see that there is no mal-administration. If there is mal-administration, the university will take steps to cure the same. There may be control and check on administration in order to find out whether the minority institutions are engaged in activities which are not conducive to the interest of the minority or to the requirements of the teachers and the students.
In
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 effect 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.

45. For these reasons the provisions contained in Sections 40, 41, 33-A(1)(a), 33-A(1)(b), 51-A and 52-A cannot be applied to minority institutions. These provisions violate the fundamental rights of the minority institutions.

50. We agree with the judgment of Honble the Chief Justice just pronounced and with his conclusions that
Sections 40
,
,
33-A(1)(a)
,
33-A(1)(b)
,
51-A
and
52-A
of the Act violate the fundamental rights of minorities and cannot, therefore, apply to the institutions established and administered by them. We would not ordinarily have found it necessary to write a separate opinion when the same thing has to be said as has been said so tersely by him, but in trying to re-state what has already been said, the impression is sometimes created that something new is being stated or some departure from the principles already adumbrated is being made. In order to avoid giving scope to any such contention being raised, we would merely refer to some earlier provisions already held to violate the fundamental rights of minorities guaranteed under
Article 30(1)
which are analogous to the impugned provisions which, in the view this Court has already taken, can be held to be violative in their application to the minority educational institutions. The reason for this separate opinion, however, is not so much to point out the invalidity of the impugned provisions which Honble the Chief Justice has held to be inapplicable to the minority institutions but to examine the question as to what extent the right conferred by
Article 30(1)
would include within it the right of the minorities to claim affiliation for or recognition to educational institutions established by them.

102. Section 33-A which provides for a new governing body for the management of the college and also for selection committees as well as the constitution thereof would consequently have to be quashed so far as the minority educational institutions are concerned because of the contravention of
Article 30(1).
The provisions of this section have been reproduced earlier and are similar to those of
Section 48
of the Kerala University Act, sub-sections (2), (4), (5) and (6) of which were held by this Court in the case of Mother Provincial to be violative of
Article 30(1).
In the case of Rt. Rev. Bishop S.K. Patro this Court declared invalid the order passed by the educational authorities requiring the Secretary of the Church Missionary Society Higher Secondary School to take steps to constitute a managing committee in accordance with the order of the educational authorities. Section 33-A is also similar to Statute 2(1)(a) which was framed under the Guru Nanak University (Amritsar) Act. Statute 2(1)(a) was as under:

2. (1) A College applying for admission to the privileges of the University shall send a letter of application to the Registrar and shall satisfy the Senate:

(a) that the College shall have a regularly constituted governing body consisting of not more than 20 persons approved by the Senate and including, among others, 2 representatives of the University and the Principal of the College Ex offico:

Provided that the said condition shall not apply in the case of Colleges maintained by Government which shall, however, have an Advisory Committee consisting of among others the Principal of the College (Ex. officio) and two representatives of the University.
The above statute was struck down by this Court in the second
D.A.V. College
case.

103. Another conclusion which follows from what has been discussed above is that a law which interferes with a minoritys choice of qualified teachers or its disciplinary control over teachers and other members of the staff of the institution is void as being violative of
Article 30(1).
It is, of course, permissible for the State and its educational authorities to prescribe the qualifications of teachers, but once the teachers possessing the requisite qualifications are selected by the minorities for their educational institutions, the State would have no right to veto the selection of those teachers. The selection and appointment of teachers for an educational institution is one of the essential ingredients of the right to manage an educational institution and the minorities can plainly be not denied such right of selection and appointment without infringing
Article 30(1).
In the case of Rev. Father W. Proost this Court while dealing with
Section 48-A
of the Bihar Universities Act observed that the said provision completely took away the autonomy of the governing body of the college and virtually vested the control of the college in the University Service Commission. The petitioners
in that case
were, therefore, held entitled to the protection of
Article 30(1)
of the Constitution. The provisions of that section have been referred to earlier. According to the section, subject to the approval of University appointment, dismissals, removals, termination of service or reduction in rank of teachers of an affiliated college not belonging to the State Government would have to be made by the governing body of the college on the recommendation of the University Service Commission. The section further provided that the said Commission would be consulted by the governing body of a college in all disciplinary matters affecting teachers of the college and no action would be taken against or any punishment imposed upon a teacher of a college otherwise than in conformity with the findings of the Commission.

114. As a result of the above, I hold that Section 33-A, Section 40, Section 41 and
Section 52-A
of the Gujarat University Act, 1949 as amended by the
Gujarat University (Amendment) Act, 1972
are violative of
Article 30(1)
and as such are void in respect of minority educational institutions. As regards
Section 51-A
of the Act, I uphold the validity of clause (a) of sub-sections (1) and (2) of that section. Clause (b) of each of those two sub-sections is violative of
Article 30(1)
and as such is void so far as minority educational institutions are concerned.

180. Section 33-A(l)(a) provides:

33-A. (1) Every College (other than a Government college or a college maintained by the Government) affiliated before the commencement of the
Gujarat University (Amendment) Act, 1972
(hereinafter in this section referred to as such commencement)

(a) shall be under the management of a governing body which shall include amongst its members the Principal of the College, a representative of the University nominated by the Vice-Chancellor, and three representatives of the teachers of the college and at least one representative each of the members of the non-teaching staff and the students of the college, to be elected respectively from amongst such teachers, members of the non-teaching staff and students; and

(b) that for recruitment of the Principal and members of the teaching staff of a college there is a selection committee of the college which shall include
(1) in the case of recruitment of the Principal, a representative of the University nominated by the Vice-Chancellor, and
(2) in the case of recruitment of a member of the teaching staff of the college, a representative of the University nominated by the Vice-Chancellor and the Head of the Department, if any, concerned with the subject to be taught by such member.

181. We think that the provisions of sub-sections (1)(a) and (1)(b) of Section 33-A abridge the right of the religious minority to administer educational institutions of their choice. The requirement that the college should have a governing body which shall include persons other than those who are members of the governing body of the Society of Jesus would take away the management of the college from the governing body constituted by the Society of Jesus and vest it in a different body. The right to administer the educational institution established by a religious minority is vested in it. It is in the governing body of the Society of Jesus that the religious minority which established the college has vested the right to administer the institution and that body alone has the right to administer the same. The requirement that the college should have a governing body including persons other than those who constitute the governing body of the Society of Jesus has the effect of divesting that body of its exclusive right to manage the educational institution. That it is desirable in the opinion of the legislature to associate the Principal of the college or the other persons referred to in Section 33-A(l)(a) in the management of the college is not a relevant consideration. The question is whether the provision has the effect of divesting the governing body as constituted by the religious minority of its exclusive right to administer the institution. Under the guise of preventing maladministration, the right of the governing body of the college constituted by the religious minority to administer the institution cannot be taken away. The effect of the provision is that the religious minority virtually loses its right to administer the institution it has founded. Administration means management of the affairs of the institution. This management must be free of control so that the founders or their nominees can mould the institution according to their way of thinking and in accordance with their ideas of how the interests of the community in general and the institution in particular will be best served. No part of this management can be taken away and vested in another body without an encroachment upon the guaranteed right.60
Sections 48
and
of the Kerala University Act, 1969, which came up for consideration
in that case
respectively dealt with the governing body for private colleges not under corporate management and the managing council for private colleges under corporate management. Under the provisions of these sections, the educational agency or the corporate management was to establish a governing body or a managing council respectively. The sections provided for the composition of the two bodies. It was held that the sections had the effect of abridging the right to administer the educational institution of the religious minority in question there. One of the grounds given in the judgment for upholding the decision of the High Court striking down the sections is that these bodies had a legal personality distinct from governing bodies set up by the educational agency or the corporate management and that they were not answerable to the founders in the matter of administration of the educational institution.
The Court said that a law which interferes with the composition of the governing body or the managing council as constituted by the religious or linguistic minority is an abridgment of the right of the religious minorities to administer the educational institution established by it [see also
W. Proost v. Bihar
(
pp. 77-78) and Rev. Bishop S.K. Patro v. Bihar
.]

182. It is upon the principal and teachers of a college that the tone and temper of an educational institution depend. On them would depend its reputation, the maintenance of discipline and its efficiency in teaching. The right to choose the principal and to have the teaching conducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important facet of the right to administer an educational institution. We can perceive no reason why a representative of the University nominated by the Vice-Chancellor should be on the Selection Committee for recruiting the Principal or for the insistence of head of the department besides the representative of the University being on the Selection Committee for recruiting the members of the teaching staff. So long as the persons chosen have the qualifications prescribed by the University, the choice must be left to the management. That is part of the fundamental right of the minorities to administer the educational institution established by them.

195. In the result, we hold that the provisions of Section 33-A, Section 40, sub-clauses (1)(b) and (2)(b) of Section 51-A and Section 52-A are violative of
Article 30(1)
of the Constitution and, therefore, they can have no application to educational institutions established and administered by religious or linguistic minorities.

BEG, J. (concurring) The two questions to be answered by us are:

(1) Whether the impact of
Article 30(1)
of the Constitution upon any of the provisions of the Act before us, or, to put it conversely, whether the effect of any of the provisions of the Act upon the fundamental rights guaranteed to minorities by
Article 30(1)
is such as to invalidate these provisions?

(2) Whether the rights guaranteed by
Article 30
are in any way circumscribed by
Article 29?


iii) T.M.A. Pai Foundation and others vs. State of Karnataka and others
(supra)

50. The right to establish and administer broadly comprises the following rights:

(a) to admit students;

(b) to set up a reasonable 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 employees.

54. The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions.

254. The expression to establish means to set up on permanent basis. The expression to administer means to manage or to attend to the running of the affairs. A lucid connotation of this expression was given by Ray, C.J., in St. Xaviers case3 as under: (SCC pp. 745-46, para 19)
The right to administer is said to consist of four principal matters. First is the right to choose its managing or governing body. It is said that the founders of the minority institution have faith and confidence in their own committee or body consisting of persons elected by them. Second is the right to choose its teachers. It is said that minority institutions want teachers to have compatibility with the ideals, aims and aspirations of the institution. Third is the right not to be compelled to refuse admission to students. In other words, the minority institutions want to have the right to admit students of their choice subject to reasonable regulations about academic qualifications. Fourth is the right to use its properties and assets for the benefit of its own institution.

255. In none of the subsequent decisions of this Court, this exposition was departed from.

iv) Sindhi Education Society and another vs. Chief Secretary, Government of NCT of Delhi and others
(supra)
"94. It is also equally true that the right to administer does ot amount to the right to maladminister and the right is not free from regulations. The regulatory measures are necessary for ensuring orderly, efficient and sound administration. The regulatory measures can be
laid down by
the State in the administration of minority institutions. The right of the State is to be exercised primarily to prevent maladministration and such regulations are permissible regulations. These regulations could relate to guidelines for the efficiency and excellence of educational standards, ensuring the security of the services of the teachers or other employees, framing rules and regulations governing the conditions of service of teachers and employees and their pay and allowances and prescribing course of study or syllabi of the nature of books, etc. Some of the impermissible regulations are refusal to affiliation without sufficient reasons, such conditions as would completely destroy the autonomous status of the educational institution, by introduction of outside authority either directly or through its nominees in the governing body or the managing committee of a minority institution to conduct its affairs, etc.

These have been illustrated by this Court in
State of Kerala v. Very Rev.Mother Provincial
, All Saints High School v. Govt. A.P. and T.M.A.Pai Case.

95. Even in Kerala Education Bill, 1957 case, referred for opinion by the President under
Article 143(1)
of the Constitution, this Court while answering question 2 emphasised upon the freedom and extent of protection available to the minorityi institutions. Referring to the fact that
Articles 29
and
are set out in Para III of the Constitution, which guarantees fundamental rights, the text and margin notes of both the articles show that their purpose is to confer those fundamental rights on certain section of community, which constitute minority communities. This Court held that
Article 30(1)
cannot be limited and should equally operate in favour of educational institution, whether established pre or post the commencement of the Constitution. The Bench repelled the contention that by admission of an outsider, the minority institution will lost its character as such, and held: (
Kerala Educational Bill
case, AIR p.978, para 22)
"22...To say that an institution which receives aid on account of its being a minority educational institution must not refuse to admit any member of any other community only on the grounds therein mentioned and then to say that as soon as such institution admits such an outsider it will cease to be a minority institution is tantamount to saying that minority institutions will not, as minority institutions, be entitled to any aid."

96. While admitting non-members, the institution does not shed its character or ceases to be a minority institution. The freedom of minority institutions was further explained by the Bench in
Kerala Education Bill
case by saying that it is the choice of the minority institution, to establish such educational institutions as will serve both purposes, that of conserving their religion, language or culture and giving a thorough good general education to their children. So, they could even impart education in their own language or in any other language, which choice essentially has to be left to the minority institution. The Constitution itself uses the work "choice" in
Article 30(1)
, which indicates the extent of liberty and freedom the framers of the Constitution intended to grant to the minority community. Thus, there arises no occasion for the Court to read restrictions into such freedom on the ground of policy. It may amount to intrusion into the very minority character and protection available to the community in law. The right to frame regulations, therefore, is not itself an unregulated right. It has its own limitations and sphere within which such regulations would be framed and made operative.

97. It is not necessary for us to examine the extent of power to make regulations, which can be enforced against linguistic minority institutions, as we have already discussed the same in the earlier part of the judgment. No doubt, right conferred on minorities under
Article 30
is only to ensure equality with the majority but, at the same, what protection is available to them and what right is granted to them under
Article 30
of the Constitution cannot be diluted or impaired on the pretext of framing of regulations in exercise of its statutory powers by the State. The permissible regulations, as afore-indiated, can always be framed and where there is a maladministration or even where a minority linguistic or religious school is being run against the public or national interest, appropriate steps can be taken by the authorities including closure but in accordance with law. The minimum qualifications, experience, other criteria for making appointments, etc. are the matters which will fall squarely within the power of the State to frame regulations but power to veto or command that a particular person or class of persons ought to be appointed to the school failing which the grant-in-aid will be withdrawn, will apparently be a subject which would be arbitrary and unforceable."

Learned counsel for the petitioner also placed reliances of the following judgments of this Court.

i) The Madras Christian College Association vs. The University of Madras
in W.P.No.9760 of 2000 dated 20.03.2002, wherein it was held that
"2. The questions that arise for consideration in this writ petition are (1) whether the second petitioner was appointed through direct recruitment or by way of promotion (2) whether the second petitioner is eligible to be considered for the appointment to the post of principal when he does not possess minimum 55% marks in the post graduate degree and (3) whether the first petitioner / a minority institution is empowered to make appointment for the post of principal without there being a representative of the university in the college governing body to serve as a member of the selection committee.

10. An analysis of above laws on the subject would lead to the conclusion that the right of the minority institutions to establish and administer the educational institutions protected and guaranteed under
Article 30(1)
of the Constitution of India cannot be interfered with by the University in the matter of selection of teachers. Moreover, the minority institutions are empowered to form their own methodology for selection to make the appointment to the post of principal. However the University is empowered ensure that only eligible candidates are appointed for the post of principal. On the above settled position of law, let me now consider the other points raised by the learned senior counsel for the petitioners.

15. Coming to the second reason adduced in the impugned order that the college Governing Body has not drawn any charter of scheduled for the selection of the Principal. It is to be again rejected for the simple reason that it is for the Minority Institutions to adopt their own method for selecting the candidates and it is not for the University to insist that the procedure to be followed by the Minority Institution to select the candidates.

16. In regard to the third reason given in the impugned order that the University Nominee serving in the college governing body was not invited to serve as a member of the Selection Committee it is again to be seen that such a reason cannot be insisted upon the minority institutions in view of the categorical pronouncement of the Supreme Court in the judgment reported in AIR 1974 SC 1389. As reference was made by the learned counsel for the respondent that the said condition was imposed only on the basis of one of the conditions of University Grants Commission insisted at the time when the first petitioner college was conferred autonomous status in the year 1978. Whatever be the conditions imposed by the University Grants Commission, the same cannot be insisted against the Minority Institutions in view of the right guaranteed under
Article 30(1)
of the Constitution of India and more particularly in view of the judgment reported in AIR 1963 SC 640. Hence, the said reason cannot also be sustained for rejecting the request of the first petitioner to approve the appointment of the second petitioner as Principal.

ii) Secretary, Nesamony Memorial Christian College, Nagercoil vs. State of Tamil Nadu and others reported in (2007) 1 MLJ 412
"10. The point in issue is whether the fourth respondent is justified in not passing orders on the approval application, on the ground that the Selection Committee was not formed in the petitioner-minority college, as per the University Grants Commission's Regulation.

"12.The contention of the fourth respondent that the Selection Committee was not constituted as per the University Grants Commission, is the reason for not passing orders. In fact, the fourth respondent refused to approve the qualification of the Principals appointed in CSI Annapackiam College, Nallur, Alankulam Taluk, Tirunelveli District and Sara Tucker College, Perumalpuram, Tirunelveli District which are also minority colleges, on the ground that the said principals were not selected by the Selection Committee, as per the University Grants Commission's norms by an order dated 28.08.2006. The said orders of rejection of approval of qualification were challenged by the said two colleges and the concerned Principals before this Court in W.P.Nos.9728 and 9729 of 2006 and I have allowed the writ petitions on 02.11.2006, following the order of this Court made in W.P.No.9760 of 2000, by an order dated 20.03.2002, wherein, the learned single Judge in the said order, considered various decisions of the Hon'ble Supreme Court and the same is extracted hereunder:

"3.The right of the minority institution to administer the educational institutions is protected under
Article 30
of the Constitution of India, wherein, it is stated that all minorities, whether based on the religion or language shall have the right to establish and administer educational institution of their choice. The Hon'ble Supreme Court of India, in more than one case had considered the right of the minority institutions, guaranteed under
Article 30(1)
of the Constitution of India. As early as in the year 1958, a Constitution Bench of the Supreme Court in the judgment reported in Kerala Education Bill, 1957, RE AIR 1959 SC 956, has observed that the right guaranteed under
Article 30(1)
is absolute and any law or executive direction which infringes the substance of that right is void to the extent of infringement. In the judgment in Sindharajbhai vs. State of Gujarat AIR 1963 SC 540, the above law was approved by another Constitution Bench of the Supreme Court, wherein, the Supreme Court has observed as follows:

"The right established by
Article 30(1)
is a Fundamental Right declared in terms of absolute unlike the fundamental freedoms guaranteed by
Article 19
, it is not subject to reasonable restrictions. It is intended to be a real right for the protection to the minorities in the matter of setting up of educational institutions of their own choice. 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 education institution, but of the public or the nation as a whole. 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" as a promise of unreality. Regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to make the institution while retaining its character as a minority institution, effective as an educational institution. 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 make the institution an effective vehicle of education for the minority community or other persons who resort to it."

4. The right of the minority institutions to establish and administer the educational institutions came up for consideration before the Supreme Court in the judgment reported in
St.Xaviers College vs. State of Gujarat
AIR 1974 SC 1389: (1974) 1 SCC 717, wherein, provision contained in
Section 33-A(1)(a)
of the Gujarat University Act (50 of 1949) was considered. In that Act, it was stipulated 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 the teachers, non-teaching staff and students of the college. The Supreme Court ultimately held that the above provision contained in
Section 33-A(1)(b)
of the Act cannot be made applicable to the minority institutions as the recruitment of the Principal and members of the teaching staff of college shall vest with the College Committee formed by the Governing Body of the college for selection of the teachers.

5. In the judgment of the Supreme Court in State of Kerals vs. Mother Provincial AIR 1970 SC 2079: (1970) 2 SCC 417, it was observed:

"
Article 30(1)
contemplates two rights which are separated in point of time. The first right is the initial right to establish institutions of minority's choice. It is irrelevant that in addition to the minority community, others from other minority communities or even from the majority community can take advantage of these institution. The next part of the right relates to the Administration of such institutions which means "management of the affairs" for the institutions. The is management must be free of control so that the founders or their nominees can mould the institutions as they think fit and in accordance with their ideas of how the interests of the community in general and the institutions in particular will be best served. There is, however, an exception that the standards of education are not a part of management as such. 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."

6. In N.Ammad vs.Manager, Emjay High School and others AIR 1999 SC 50: (1998) 6 SCC 674: 1999-III(Suppl)-LLJ-1470 also considering the right under
Article 30(1)
of the Constitution of India, guaranteed to the minorities' institutions, the Supreme Court approved the mode of selection adopted by a minority institution, running a college on the following observation:

"18. Selection and appointment of Head Master in a school (or Principal of a college) are of prime importance in administration of that educational institution. The Head Master is the key post in the running of the school. He is the hub on which all the spokes o the school are set around whom they rotate to generate result. A school is personified through its Headmaster and he is the focal point on which outsiders look at the school. A bad Headmaster can spoil the entire institution, an efficient and honest Headmaster can improve it by leaps and bounds. The functional efficacy of a school very much depends upon the efficiency and dedication of its Headmaster. This pristine precept remains unchanged despite many changes taking place in the structural patterns of education over the years."

7. The Supreme Court had in fact taken note of the observations made in the judgment
Aldo Maria Patroni vs. E.C.Kesavan
AIR 1965 Ker.75, wherein, it is stated:

"The Post of the Headmaster is of pivotal importance in the life of a school. Around him wheels the tone and temper of the institution; on him depends the continuity of its tradition, the maintenance of discipline and the efficiency of its teaching. The right to choose the Headmaster is perhaps the most important facet of the right to administer a school, and we must hold that the imposition of any trammel thereon, except to the extent of prescribing the requisite qualifications and experience cannot but be considered as a violation of the rights guaranteed by
Article 30(1)
of the Constitution. To hold otherwise will be to make the right "a teasing illusion, a promise of unreality."

8. A division Bench of this Court reported in Jawahar College Staff Association etc. vs. University of Madras and others 1994 WLR 84: (1994) 1 MLJ 376 while considering the provisions of
Tamil Nadu Private Colleges (Regulation) Act, 1976
, and considering the right of the minority institutions to fill up the vacancy in the post of lecturers has held that the University is not a Selecting Authority. The authority of the University is only to ensure that the selection of the lecturers is made in accordance with Rules governing the selection and appointment and the candidates selected and are eligible according to the qualifications prescribed by the University.

9. Recently, a Division Bench of this Court in the judgment in
Hepsy Bell Mohan vs. State of Tamil Nadu
other others (2000) 3 MLJ 397, while considering the right of the minority institutions to make appointment to the post of Principal after placing reliance upon the judgement of the Hon'ble Supreme Court in
N.Ammad vs. Manager, Emjay High School
AIR 1999 SC 50: (1998) 6 SCC 674: 1999-III (Suppl)-LLJ-1470 has observed as follows:

"It is now a settled position in law, in view of the Apex Court's judgment that the minority school would be entitled to appoint a principal of their own choice considering the importance of the post of the Principal, even ignoring the seniority of the staff who are working. However, such appointment would have to be of only a person who holds adequate qualifications. That appears to be the only rider in the aforementioned decision cited supra."

10. An analysis of the above decisions on the subject would lead to the conclusion that the right of the minority institutions to establish and administer the educational institutions are protected and guaranteed under
Article 30(1)
of the Constitution of India, cannot be interfered with by the University in the matter of selection of teachers. Moreover, the minority institutions are empowered, to form their own methodology for selection to make the appointment to the post of Principal. However, the University is empowered to ensure that only eligible candidates are appointed for the post of Principal. On the above settled position of law, let me now consider the other points raised by the learned senior counsel for the petitioners."

13. The learned Judge ultimately allowed the writ petition and upheld the right of the minority management.

iii) Eka Ratchagar Sabai Higher Secondary School vs. K.Sumathi and another
reported in (2008) 1 MLJ 322
"12.Even though the aforesaid decision was relating to appointment of Principal, it is evident that same logic and ratio would be applicable to the appointment of teachers.

As a matter of fact, in
Ahmedabad St.Xavier's College Society v. State of Gujarat
(supra), while considering the right of the minority institution to appoint its own teachers, it was observed:

"103. Another conclusion which follows from what has been discussed above is that a law which interferes with a minority's choice of qualified teachers or its disciplinary control over teachers and other members of the staff of the institution is void as being violative of
Article 30(1).
It is, of course, permissible for the State and its educational authorities to prescribe the qualifications of teachers, but once the teachers possessing the requisite qualifications are selected by the minorities for their educational institutions, the State would have no right to veto the selection of those teachers. The selection and appointment of teachers for an educational institution is one of the essential ingredients of the right to manage an educational institution and the minorities can plainly be not denied such right of selection and appointment without infringing
Article 30(1).

13. The aforesaid observation was cited with approval in
TMA Pai Foundation
's case (supra). In para 161 of the aforesaid decision, it was observed:

"161.... A. So far as the statutory provisions regulation the facets 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 condition of recognition as well as the condition of affiliation to an 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 control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself.

-------

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 institutions.

Regulations can be framed governing service conditions for teaching and other staff for which aid is provided by the State, without interfering with the overall administrative control of the management over the staff."

14. As observed in
TMA Pai Foundation
's case (supra), essential ingredients of the management including admission of students and recruitment of staff, cannot be regulated.

It is of course true that the earlier decision of the Single Judge in
M.Chelladorai vs. Joint Director of School Education (Higher Secondary) Chennai
(supra), which we have already noticed, also purported to rely upon the observations made in
TMA Pai Foundation
's case.
However, now that the matter has been decided by the Supreme Court in (2007) 1 SCC 386 (supra) after referring to other earlier decisions, we do not think that the interpretation given earlier by different learned Single Judgesof this Court can hold good. The necessary conclusion, therefore, is that the discretion of the Management to appoint teacher of its own choice (of course a teacher who is otherwise qualified and eligible as per the prescribed regulations) cannot be curtailed through the process of rules, regulations or other executive instructions as such rules, regulations or executive instructions would violate the right of the minority institution under
Article 30(1)
of the Constitution"

iv) A. Belavendran vs. The Joint Director of School Education, Nungambakkam reported in (2010) 1 CWC 343
"19.
Therefore, our decision will have to be in line with
Secretary, Malankara Syrian Catholic College vs. T.Jose and others
, 2007 (1) SCC 386, dealt with appointment of Principal under the
Kerala University Act
, which reads as follows:

"27. It is thus clear that the freedom to choose the person to be appointed as Principal has always been recognised as a vital facet of the right to administer the educational institution. This has not been, in any way, diluted or altered by TMA Pai. Having regard to the key role played by the Principal in the management and administration of the educational institution, there can be no doubt that the right to choose the Principal is an important part of the right of administration and even if the institution is aided, there can be no interference with the said right. The fact that the post of the Principal / Headmaster is also covered by the State aide, will make no difference.

20.
In
T.M.A.Pai Foundation vs. State of Karnataka
, 2002 (5) CTC 201 (SC), in paragraph 161, the second part of the answer to question 5(c) applicable to aided minority institutions runs thus:

"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 for teaching and other staff for whom aid is provided by the State, without interfering with the overall administrative control of the management over the staff."

21. The general principles relating to establishment/administration of education institution by minorities as reiterated in
P.A.Inamdar
's case are as follows:

"19(i)--------

(a)To Choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution.

(b)To appoint teaching staff (Teachers/Lecturers and Head-Masters/Principals) as also non-teaching staff, and to take action if there is dereliction of duty on the part of any of its employees;

(c)To admit eligible students of their choice and to set up a reasonable fee structure."

22. We are concerned only with principle (b
)
referred above
, which deals with their right to appoint teaching staff including teachers and lecturers.

Though the learned counsel appearing for the petitioner submitted that the right of the minority institutions is secured only with reference to appointment of the Principal of their choice, the general principles crystallized above regarding the establishment and administration of education institution would show clearly that the right of the institution to establish and administer the educational institutions by minorities, includes the appointment of teaching staff also and in
Paragraph 21 of Secretary, Malankara Syrian Catholic College vs. T.Jose and others
, 2007 (1) SCC 386, the Supreme Court has held as follows:

"21. We may also recapitulate the extent of regulation by the State, permissible in respect of employees of minority educational institutions receiving aid from the State, as clarified and crystallised in TMA Pai. The State can prescribe:

(i) the minimum qualifications, experience and other criteria being on merit, for making appointments;

(ii) the service conditions of employees without interfering with the overall administrative control by the Management over the staff;

(iii) a mechanism for redressal of the grievances of the employees;

iv) the conditions for the proper utilisation of the aid by the educational institutions, without abridging or diluting the right to establish and administer educational institutions;

In other words, all laws made by the State to regulate the administration of educational institutions, and grant of aid, will apply to minority educational institutions also. But if any such regulations interfere with the overall administrative control by the Management over the staff, or abridges/dilutes, in any other manner, the right to establish and administer educational institutions, such regulations, to that extent will be inapplicable to minority institution."

23.
In
Eka Ratchagar Sabai Higher Secondary School and another vs. K.Sumathi and another
, 2007 (4) LW 617, which is almost identical to the present case, the Division Bench dealt with each of the judgments that have been cited before us. The minority institutions' right of appointment of Principals/Headmasters and Teachers of their choice have been protected under
Article 30(1)
of the Constitution of India
in
the above case
.

As observed by the Supreme Court in
St. Xavier
's case, the Division Bench held that though it relates to appointment of Principal, the same logic and ratio would be applicable to the appointment of teachers also and the Division
Bench further held
that since the matter has been decided by the Supreme Court in the decision in
Secretary, Malankara Syrian Catholic College vs. T.Jose and others
, 2007 (1) SCC 386, the interpretation given earlier by different judges of this Court cannot hold good and therefore the necessary conclusion is that the discretion of the Management to appoint teachers of its own choice (of course a Teacher, who is otherwise qualified and eligible as per the prescribed regulations) cannot be curtailed through the process of Rules, Regulations or other executive instructions.

24. We see no reason to differ from the view of the Division Bench of this Court since it is in line with the Supreme Court's pronouncement. Further, we need not go into the applicability of Rule 15(4) of the Rules, since the Supreme Court has observed that all enactments must be brought in line with the
T.M.A.Pai Foundation
's case.

The principles
laid down in

T.M.A. Pai Foundation
's case have been crystallised in
P.A.Inamdar
's case, which is again reiterated in
Secretary, Malankara Syrian Catholic College
's case. In such circumstances, the Writ Appeal is dismissed. No costs."

28. It is contended by the learned counsel for the petitioner, that inclusion of outsiders into the administration of minority colleges directly or indirectly in selection and appointment of teaching staff would amount to interference with the right of the management to administer and thus would violate the fundamental rights guaranteed under
Article 30(1)
of the Constitution of India.

29. It was also the contention of the learned counsel for the petitioner that the right to administer institutions by appointing persons as per the prescribed qualification cannot be said to be in violation of national interest, nor the use of word 'national interest' can authorize the Commission or university to interfere with the fundamental right guaranteed to the minority institutions under
Article 30(1)
of the Constitution of India.

30. The contention of the learned counsel for the petitioner was that it has been authoritatively
laid down by
the Hon'ble Supreme Court that national interest relates only to regulating good infrastructure, healthy atmosphere, good academic standards, general laws like taxation, sanitation, social welfare, public order and morality, building regulations, municipal laws, civil and criminal laws etc, which, by no stretch of imagination would cover the constitution of selection committee.

31. The final contention of the learned counsel for the petitioner was that
Article 30
of the Constitution is required a liberal, generous and sympathetic approach as it forms a basic structure of the Constitution and is un-amendable and inalienable.

32. In support of the plea, reliance was placed by the learned counsel for the petitioner on the following judgment of the Hon'ble Supreme Court

i) Kesavananda Bharati v. State of Kerala
reported in (1973) 4 SCC 225

168. I may mention that the aforesaid provisions in the Indian Independence Act were enacted in line with the Cabinet statement, dated May 16, 1947 and the position of the Congress Party. para 2025 of the Statement by the Cabinet Mission provided:

The Advisory Committee on the rights of citizens, minorities, and tribal and excluded areas should contain full representation of the interests affected, and their function will be to report to the Union Constituent Assembly upon the list of fundamental rights, the clauses for the protection of minorities, and a scheme for the administration of the tribal and excluded areas, and to advise whether these rights should be incorporated in the Provincial, Group, or Union Constitution.

178. The above brief summary of the work of the Advisory Committee and the Minorities Sub-committee shows that no one ever contemplated that fundamental rights appertaining to the minorities would be liable to be abrogated by an amendment of the Constitution. The same is true about the proceedings in the Constituent Assembly. There is no hint anywhere that abrogation of minorities rights was ever in the contemplation of the important members of the Constituent Assembly. It seems to me that in the context of the British plan, the setting up of Minorities Sub-committee, the Advisory Committee and the proceedings of these Committees, as well as the proceedings in the Constituent Assembly mentioned above, it is impossible to read the expression Amendment of the Constitution as empowering Parliament to abrogate the rights of minorities.

ii) T.M.A. Pai Foundation v. State of Karnataka
reported in (2002) 8 SCC 481

380. The proponents of the argument that
Article 29(2)
overrides
Article 30(1)
have referred to excerpts from the speeches made by Members of the Constituent Assembly which have been quoted in support of their view. Apart from the doubtfulness as to the admissibility of the speeches,65 in my opinion, there is nothing in the speeches which shows an intention on the part of the Constituent Assembly to abridge in any way the special protection afforded to minorities under
Article 30(1).
The intention indicated in the speeches relating to the framing of
Article 29(2)
appears to be an extension of the right of non-discrimination to members of the non-minority in respect of State-aided or State-maintained educational institutions. It is difficult to find in the speeches any unambiguous statement which points to a determination on the part of the Constituent Assembly to curtail the special rights of the minorities under
Article 30(1).
Indeed if one scrutinises the broad historical context and the sequence of events preceding the drafting of the Constitution, it is clear that one of the primary objectives of the Constitution was to preserve, protect and guarantee the rights of the minorities unchanged by any rule or regulation that may be enacted by Parliament or any State Legislature.

381. The history which preluded the independence of this country and the framing of the Constitution highlights the political context in which the Constitution was framed and the political content of the special rights given to minorities. I do not intend to burden this judgment with a detailed reference to the historical run-up to the Constitution as ultimately adopted by the Constituent Assembly vis-`-vis the rights of the minorities and the importance that was placed on enacting effective and adequate constitutional provisions to safeguard their interests. This has been adequately done by Sikri, C.J. in
Kesavananda Bharati v. State of Kerala727
on the basis of which the learned Judge came to the conclusion that the rights of the minorities under the Constitution formed part of the basic structure of the Constitution and were unamendable and inalienable.

iii) Ahmedabad St. Xavier's College Society v. State of Gujarat
(supra)

12. The real reason embodied in
Article 30(1)
of the Constitution is the conscience of the nation that the minorities, religious as well as linguistic, are not prohibited from establishing and administering educational institutions of their choice for the purpose of giving their children the best general education to make them complete men and women of the country. The minorities are given this protection under
Article 30
in order to preserve and strengthen the integrity and unity of the country. The sphere of general secular education is intended to develop the commonness of boys and girls of our country. This is in the true spirit of liberty, equality and fraternity through the medium of education. If religious or linguistic minorities are not given protection under
Article 30
to establish and administer educational institutions of their choice, they will feel isolated and separate. General secular education will open doors of perception and act as the natural light of mind for our countrymen to live in the whole.

iv) T.M.A. Pai Foundation v. State of Karnataka
reported in (2002) 8 SCC 481

349. On a plain reading of the provisions of the article, all minorities based on religion or language, shall have the right to (1) establish, and (2) administer educational institutions of their choice. The emphasized words unambiguously and in mandatory terms grant the right to all minorities to establish and administer educational institutions. I would have thought that it is self-evident and in any event, well settled by a series of decisions of this Court that
Article 30(1)
creates a special class in the field of educational institutions  a class which is entitled to special protection in the matters of setting up and administering educational institutions of their choice. This has been affirmed in the decisions of this Court where the right has been variously described as a sacred obligation2, an absolute right616, a special right717, a guaranteed right818, the conscience of the nation3, a befitting pledge57, a special right58 and an article of faith919.

v) Ahmedabad St. Xavier's College Society v. State of Gujarat
as stated supra

89. A liberal, generous and sympathetic approach is reflected in the Constitution in the matter of the preservation of the right of minorities so far as their educational institutions are concerned. Although attempts have been made in the past to whittle down the rights of the minorities in this respect, the vigilant sections of the minorities have resisted such attempts. Disputes have consequently arisen and come up before this Court for determining whether the impugned measures violate the provisions of the Constitution embodied in
Articles 29
and
30.
This Court has consistently upheld the rights of the minorities embodied in those articles and has ensured that the ambit and scope of the minority rights is not narrowed down. The broad approach has been to see that nothing is done to impair the rights of the minorities in the matter of their educational institutions and that the width and scope of the provisions of the Constitution dealing with those rights are not circumscribed. The principle which can be discerned in the various decisions of this Court is that the catholic approach which led to the drafting of the provisions relating to minority rights should not be set at naught by narrow judicial interpretation. The minorities are as much children of the soil as the majority and the approach has been to ensure that nothing should be done as might deprive the minorities of a sense of belonging, of a feeling of security, of a consciousness of equality and of the awareness that the conservation of their religion, culture, language and script as also the protection of their educational institutions is a fundamental right enshrined in the Constitution. The same generous, liberal and sympathetic approach should weigh with the courts in construing
Articles 29
and
as marked the deliberations of the Constitution-makers in drafting those articles and making them part of the fundamental rights. The safeguarding of the interest of the minorities amongst sections of population is as important as the protection of the interest amongst individuals of persons who are below the age of majority or are otherwise suffering from some kind of infirmity. The Constitution and the laws made by civilised nations, therefore, generally contain provisions for the protection of those interests. It can, indeed, be said to be an index of the level of civilisation and catholicity of a nation as to how far their minorities feel secure and are not subject to any discrimination or suppression.

vi) T.M.A. Pai Foundation and others vs. State of Karnataka and others
(supra)

121. While advocating that provisions of the Constitution should be construed according to the liberal, generous and sympathetic approach, and after considering the principles which could be discerned by him from the earlier decisions of this Court, Khanna, J., observed at SCR p. 234, as follows: (SCC p. 781, para 89)
The minorities are as much children of the soil as the majority and the approach has been to ensure that nothing should be done as might deprive the minorities of a sense of belonging, of a feeling of security, of a consciousness of equality and of the awareness that the conservation of their religion, culture, language and script as also the protection of their educational institutions is a fundamental right enshrined in the Constitution. The same generous, liberal and sympathetic approach should weigh with the courts in construing
Articles 29
and
as marked the deliberations of the Constitution-makers in drafting those articles and making them part of the fundamental rights. The safeguarding of the interest of the minorities amongst sections of population is as important as the protection of the interest amongst individuals of persons who are below the age of majority or are otherwise suffering from some kind of infirmity. The Constitution and the laws made by civilized nations, therefore, generally contain provisions for the protection of those interests. It can, indeed, be said to be an index of the level of civilization and catholicity of a nation as to how far their minorities feel secure and are not subject to any discrimination or suppression.

33. Learned counsel appearing on behalf of the University Grants Commission contended that the regulations framed in the year 2000 has been superseded by the regulations framed in the year 2010, wherein, it has now been provided as under:

The committee shall consist of

A) Chairperson of the governing body or his nominee among the members of the governing body  chairperson

B) Principal of the college

C) Head of the Department of the concerned subject in the college

D) Two nominees of the chairperson from out of a panel of 5 names preferably minority community recommended by the VC of the affiliating University from the list of experts suggested by the relevant statutory body of the college.

E) Two subject experts not connected with the University to be nominated by the chairperson from out of a panel of 5 names preferably minority communities recommended by the VC of the affiliating University from the list of experts suggested by the relevant statutory body of the college.

F) An academician representing ST/St/OBC/Minority/Women/Differently abed, if any of the candidates belonging to the above category to be nominated by the VC if the selection committee formed from above clause A to E do not belong to that particular category. Eg. If a woman candidate had applied and there is a woman member in the selection committee then there is no necessity for invocation of this clause by the VC."

A reading of the regulations now in force therefore would show that there is no outside authority or its nominees in the committee so as to make in-road in the management of the affairs of the minority educational institutions, as all the members of the selection committee are persons belonging to the minority community.

34. It is also the contention of the learned counsel for the respondent that the composition of the committee is based on the national policy for uniformity in the process selection of candidates, lecturers / teaching staff to the colleges concerned for effective maintenance of educational standards in the colleges concerned which cannot be said to be violative of
Article 30
of the Constitution.

35. It is also the contention of the learned counsel for the respondent that
Article 30
of the Constitution provides for protection of the minorities in establishment and administration of educational institutions. However, the rights of minorities in establishments and administration of educational institutions are subject to the regulations framed by the State or concerned statutory authorities without interference with the right of the minority, in the establishment and administration of the said educational institutions.

36. In support of the contention that the right of minority to administer the educational institutions of their choice is not an absolute right, which is not free from regulation and that the measure, which regulates the course of study, qualification and appointment of teachers etc. will serve the interest of students and teachers, which is of paramount importance for good administration. The only restriction is that the regulation cannot impose outsiders into the body of selection process, in which the founders have no say so as to displace all the rights of administration. The reliance was placed on the judgement in the case of
Ahmedabad St.Xavier's College Society vs. State of Gujarat and another
(supra), wherein, the Hon'ble Supreme Court was pleased to lay down as under:

18. This Court in
State of Kerala v. Very Rev. Mother Provincial,3
explained the necessity and importance of regulatory measures of system and standard of education in the interest of the country and the people. When a minority institution applies for affiliation, it agrees to follow the uniform courses of study. Affiliation is regulating the educational character and content of the minority institutions. These regulations are not only reasonable in the interest of general secular education but also conduce to the improvement in the stature and strength of the minority institutions. All institutions of general secular education whether established by the minorities or the non-minorities must impart to the students education not only for their intellectual attainment but also for pursuit of careers. Affiliation of minority institutions is intended to ensure the growth and excellence of their children and other students in the academic field. Affiliation mainly pertains to the academic and educational character of the institution. Therefore, measures which will regulate the courses of study, the qualifications and appointment of teachers, the conditions of employment of teachers, the health and hygiene of students, facilities for libraries and laboratories are all comprised in matters germane to affiliation of minority institutions. These regulatory measures for affiliation are for uniformity, efficiency and excellence in educational courses and do not violate any fundamental right of the minority institutions under
Article 30.

19. The entire controversy centres round the extent of the right of the religious and linguistic minorities to administer their educational institutions. The right to administer is said to consist of four principal matters. First is the right to choose its managing or governing body. It is said that the founders of the minority institution have faith and confidence in their own committee or body consisting of persons elected by them. Second is the right to choose its teachers. It is said that minority institutions want teachers to have compatibility with the ideals, aims and aspirations of the institution. Third is the right not to be compelled to refuse admission to students. In other words, the minority institutions want to have the right to admit students of their choice subject to reasonable regulations about academic qualifications. Fourth is the right to use its properties and assets for the benefit of its own institution.

20. The right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right. This right is not free from regulation. Just as regulatory measures are necessary for maintaining the educational character and content of minority institutions similarly regulatory measures are necessary for ensuring orderly, efficient and sound administration. Das, C.J., in the
Kerala Education Bill
case summed up in one sentence the true meaning of the right to administer by saying that the right to administer is not the right to mal-administer.

31. Regulations which will serve the interests of the students, regulations which will serve the interests of the teachers are of paramount importance in good administration. Regulations in the interest of efficiency of teachers, discipline and fairness in administration are necessary for preserving harmony among affiliated institutions.

41. Autonomy in administration means right to administer effectively and to manage and conduct the affairs of the institutions. The distinction is between a restriction on the right of administration and a regulation prescribing the manner of administration. The right of administration is day to day administration. The choice in the personnel of management is a part of the administration. The university will always have a right to see that there is no mal-administration. If there is mal-administration, the university will take steps to cure the same. There may be control and check on administration in order to find out whether the minority institutions are engaged in activities which are not conducive to the interest of the minority or to the requirements of the teachers and the students.
In
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 effect 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.

37. On the basis of observations
referred to above
, it was vehemently contended that regulations now in force do not induct any outsider in the selection committee, as all the members of the selection committee would be from the panel of the names suggested by the concerned minority institutions. The regulations now in force do no take away the rights of administration of institutions.

38. It was also the contention of the learned counsel for the respondent that the regulatory measures which are designed towards the achievement of the goal of making minority educational institutions as effective instruments for imparting education, cannot be considered to infringe the right guaranteed under
Article 30
of the Constitution of India.

39.
In support of this contention, a reliance was placed by the learned counsel for the respondent on the judgement of the Hon'ble Supreme Court in the case of
Frank Anthony Public School Employees' Association vs. Union of India and others
(AIR 1987 Supreme Court 311 laid down that:

13. Thus, there now appears to be a general and broad consensus about the content and dimension of the Fundamental Right guaranteed by
Article 30(1)
of the Constitution. The right guaranteed to religious and linguistic minorities by
Article 30(1)
is twofold, to establish and to administer educational institutions of their choice. The key to the article lies in the words of their own choice. These words indicate that the extent of the right is to be determined, not with reference to any concept of State necessity and general societal interest but with reference to the educational institutions themselves, that is, with reference to the goal of making the institutions effective vehicles of education for the minority community or other persons who resort to them. It follows that regulatory measures which are designed towards the achievement of the goal of making the minority educational institutions effective instruments for imparting education cannot be considered to impinge upon the right guaranteed by
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 substantial measure. The provisions embodied in
Sections 8
to
of the Delhi School Education Act may now be measured alongside the Fundamental Right guaranteed by
Article 30(1)
of the Constitution to determine whether any of them impinges on that fundamental right. Some like or analogous provisions have been considered in the cases to which we have referred. Where a provision has been considered by the nine-Judge Bench in
Ahmedabad St. Xaviers College v. State of Gujarat,4
we will naturally adopt what has been said therein and where the nine-Judge Bench is silent we will have recourse to the other decisions.

40. It is also the contention of the learned counsel for the respondent that the minority institutions are bound by the regulations which will serve the interest of students and teachers and to prove uniformity in standards of education.
In support of this contention, a reliance was placed on the judgment of the Hon'ble Supreme Court in the case of
St. Stephen's College vs. University of Delhi
reported in (1992) 1 SCC 558 as under:

54. The minorities whether based on religion or language have the right to establish and administer educational institutions of their choice. The administration of educational institutions of their choice under
Article 30(1)
means management of the affairs of the institution. This management must be free from control so that the founder 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. But the standards of education are not a part of the management as such. The standard concerns the body politic and is governed by considerations of the advancement of the country and its people. Such regulations do not bear directly upon management although they may indirectly affect it. The State, therefore has the right to regulate the standard of education and allied matters. Minority institutions cannot be permitted to fall below the standards of excellence expected of educational institutions.
They cannot decline to follow the general pattern of education under the guise of exclusive right of management. While the management must be left to them, they may be compelled to keep in step with others. There is a wealth of authority on these principles. See:
State of Bombay v. Bombay Education Society1
; Kerala Education Bill, 1957, Re11;
Sidhajbhai Sabhai v. State of Bombay2
;
Rev. Father Proost v. State of Bihar3
; and
State of Kerala v. Mother Provincial12
.

59. The need for a detailed study on this aspect is indeed not necessary. The right to minorities whether religious or linguistic, to administer educational institutions and the power of the State to regulate academic matters and management is now fairly well settled. The right to administer does not include the right to maladminister. The State being the controlling authority has right and duty to regulate all academic matters. Regulations which will serve the interests of students and teachers, and to preserve the uniformity in standards of education among the affiliated institutions could be made. The minority institutions cannot claim immunity against such general pattern and standard or against general laws such as laws relating to law and order, health, hygiene, labour relations, social welfare legislations, contracts, torts etc. which are applicable to all communities. So long as the basic right of minorities to manage educational institution is not taken away, the State is competent to make regulatory legislation. Regulations, however, shall not have the effect of depriving the right of minorities to educate their children in their own institution. That is a privilege which is implied in the right conferred by
Article 30(1).

41. It is the further contention of the learned counsel for the respondent that even in
T.M.A. Pai Foundation and others vs. State of Karnataka and others
and P.A.Inamdar, it was held that the rights of minorities are subject to reasonable restrictions.

42. Learned counsel for the respondent also contended that even in the case of
Secretary, Malankara Syrian Catholic College vs T.Jose and others
reported in (2007) 1 SCC 386, the Hon'ble Supreme Court, while accepting the plea of minority institutions to appoint the Principal of its choice was pleased to uphold the following principles, i.e.,

19. The general principles relating to establishment and administration of educational institution by minorities may be summarised thus:

(i) The right of minorities to establish and administer educational institutions of their choice comprises the following rights:

(a) to choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution;

(b) to appoint teaching staff (teachers/lecturers and Headmasters/ Principals) as also non-teaching staff, and to take action if there is dereliction of duty on the part of any of its employees;

(c) to admit eligible students of their choice and to set up a reasonable fee structure;

(d) to use its properties and assets for the benefit of the institution.

(ii) The right conferred on minorities under
Article 30
is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-`-vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation, etc. applicable to all, will equally apply to minority institutions also.

(iii) The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under
Article 30(1).

(iv) Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/lecturers by adopting any rational procedure of selection.

(v) Extension of aid by the State does not alter the nature and character of the minority educational institution. Conditions can be imposed by the State to ensure proper utilisation of the aid, without however diluting or abridging the right under
Article 30(1).

20. Aided institutions give instruction either in secular education or professional education. Religious education is barred in educational institutions maintained out of the State funds. These aided educational minority institutions providing secular education or professional education should necessarily have standards comparable with non-minority educational institutions. Such standards can be attained and maintained only by having well-qualified professional teachers. An institution can have the services of good qualified professional teachers only if the conditions of service ensure security, contentment and decent living standards. That is why the State can regulate the service conditions of the employees of the minority educational institutions to ensure quality of education. Consequently, any law intended to regulate the service conditions of employees of educational institutions will apply to minority institutions also, provided that such law does not interfere with the overall administrative control of the management over the staff.

21. We may also recapitulate the extent of regulation by the State, permissible in respect of employees of minority educational institutions receiving aid from the State, as clarified and crystallised in T.M.A. Pai1. The State can prescribe:

(i) the minimum qualifications, experience and other criteria bearing on merit, for making appointments,

(ii) the service conditions of employees without interfering with the overall administrative control by the management over the staff,

(iii) a mechanism for redressal of the grievances of the employees,

(iv) the conditions for the proper utilisation of the aid by the educational institutions, without abridging or diluting the right to establish and administer educational institutions.

In other words, all laws made by the State to regulate the administration of educational institutions and grant of aid will apply to minority educational institutions also. But if any such regulations interfere with the overall administrative control by the management over the staff, or abridges/dilutes, in any other manner, the right to establish and administer educational institutions, such regulations, to that extent, will be inapplicable to minority institutions.

The contention of the learned counsel for the respondent therefore was that the regulations now in force do not even touch upon the rights of the minority institutions, but only envisages / guides the colleges to form a selection committee as it is not within the realm of the governing council to have knowledge of the concerned subject to which appointments were made.

43. The constitution of Selection Committee as per the regulations would be interest of students, who would have guidance from a better recruited teacher and also achieve the object of the
UGC Act
, which has been established for the purposes of maintaining standards and excellence in higher education.

44. Finally reliance was placed on the judgement passed by the Hon'ble Division Bench of this Court in the case of
Secretary, Kamaraj College, Thoothukudi vs. D.S.Arulmani, Reader & Head of Department of Tamil Kamaraj College, Thoothukudi
reported in (2008) 2 MLJ 593, wherein, the Hon'ble Division Bench upheld the regulations regarding the selection committee. Thus, on the basis of the submissions
referred to above
, it was pleaded that the writ petitions be dismissed.

45. Learned counsel for the respondent No.8, on the other hand, contended that process of selection would include right to prescribe qualification, and therefore, traceable to
Section 26(1)(3)
of the University Grants Commission Act. The regulations under challenge would be covered by Entry 66 List I of the Constitution of India. The regulations under challenge have been framed in exercise of statutory duty cast upon the Commission, to take all steps as it may think fit for the determination and maintenance of standards of teaching.

46. This would result in checking the mal administration by the minority institutions.

47. The contention of the learned counsel for the respondent No.8 therefore was that the educational institution belonging to minority institutions cannot be allowed to run with incompetent teachers, to maintain bad standard of teaching, which will be against the welfare of the students.

48. The regulations under challenge are mainly to ensure the excellence of educational institutions.

49. Reliance in support was placed on a judgment of the Hon'ble Supreme Court in the case of
P.A.Inamdar
,(supra) wherein, it was held by the Hon'ble Supreme Court that regulations can be framed to prevent mal administration, as also to lay down standard of education and teaching etc.

50. The contention of the learned counsel for the respondent No.8 was that these regulations do not interfere the right of administration. It was also vehemently contended that the Selection committee, which does not have an expert of the subject has necessarily to take assistance of an outside expert to appoint teachers with high caliber, who alone would ensure the co-ordination and determination of standard of higher education, to achieve objects of the
UGC Act
.

51. It was prayed that the writ petitions be dismissed by holding that the regulations under challenge would apply with full force to all institutions including the minority institutions.

52. The question as to whether the statutory provisions, which regulate the facet of administration like controlling, educational agencies, governing bodies, conditions of affiliation including recognition/withdrawals thereof, and appointment of staff, employees, teachers and Principals including their service conditions and regulations of fees etc interfere with the right of administration of minority institutions, came up for consideration before the Hon'ble Supreme Court in the case of
T.M.A. Pai Foundation and others vs. State of Karnataka and others
(supra)wherein the question was answered as under:

"So far as the statutory provisions regulating the facets 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 conditions of affiliation to a university or board have to be complied with, but in the matter of day-to-day management, like appointment of staff, teaching and non-teaching and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for selection of teaching staff and for taking disciplinary action has to be evolved by the management itself. For redressing the grievances of such employees 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 tribunal 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 qualifications, salaries, experience and other conditions bearing on the merit of an individual for being appointed as a teacher of an educational institution.

Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the state without interfering with overall administrative control of management over the staff, government/university representative can be associated with the Selection Committee and the guidelines for selection can be laid down. In regard to unaided minority educational institutions such regulations, which will ensure a check over unfair practices and general welfare of teachers could be framed.

There could be appropriate mechanism to ensure that no capitation fee is charged and profiteering is not resorted to.

The extent of regulations will not be the same for aided and unaided institutions."

53. Thereafter, the Hon'ble Supreme Court in the case of
Secretary, Malankara Syrian Catholic College vs T.Jose and others
(supra), while considering the right of minority institutions to administer the education institutions had summarised the general principles that subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/lecturers by adopting any rational procedure of selection.

54. The Hon'ble Supreme
Court further held
that extension of aid by the State does not alter the nature and character of the minority educational institution.

55.
In view of the fact that in
T.M.A. Pai Foundation and others vs. State of Karnataka and others
case (supra), it was made clear by the constitutional Bench of Supreme Court that the minority institutions would not cease to be so merely on receipt of aid from the State or its agencies.

56. It has also been held by the Hon'ble Supreme Court that under
Article 30(1)
, any grant given by the State to the minority institutions cannot have condition attached to it, which will in any way dilute and abridge the right of minority institutions to establish and administer the educational institutions.

57. The Hon'ble Supreme Court was further pleased to lay down that extension of regulations by the state, permissible in respect of employees of minority educational institutions receiving aid from the State could only be to:

(i) the minimum qualifications, experience and other criteria bearing on merit, for making appointments,

(ii) the service conditions of employees without interfering with the overall administrative control by the management over the staff,

(iii) a mechanism for redressal of the grievances of the employees,

(iv) the conditions for the proper utilisation of the aid by the educational institutions, without abridging or diluting the right to establish and administer educational institutions.

All laws made by the State to regulate the administration of educational institutions and grant of aid will apply to minority educational institutions also. But if any such regulations interfere with the overall administrative control by the management over the staff, or abridges/dilutes, in any other manner, the right to establish and administer educational institutions, such regulations, to that extent, will be inapplicable to minority institutions."

58. The Hon'ble Supreme Court in the case of
Brahmo Samaj Education Society vs. State of West Bengal
reported in (2004) 6 SCC 224 again considered the right of minority institutions with regard to appointment of teachers amongst qualified teachers and held that selection and appointment of teachers from amongst the qualified teachers is exclusively the right of educational institutions. It cannot be restricted by the State merely because institutions receive aid from the State. The question was answered as under:

"7.But that control cannot extend to the day-to-day administration of the institution. It is categorically stated in T.M.A.Pai (SCC at p.551, para 72) that the State can regulate the method of selection and appointment of teachers after prescribing requisite qualification for teh same. Independence for the selection of teachers among the qualified candidates is fundamental to the maintenance of the academic and administrative autonomy of an aided institution. The State can very well provide the basic qualification for teachers.
Under the University Grants Commission Act, 1956
, the University Grants Commission (UGC) had laid down qualifications to a teaching post in a university by passing Regulations. As per these Regulations UGC conducts National Eligibility Test (SLET). Only a person who has qualified NET or SLET will be eligible for appointment as a teacher in an aided institution. This is the required basic qualification for a teacher. The petitioners' right to administer includes the right to appoint teachers of their choice among the NET-/SLET-qualified candidates.

8. Argument on behalf of the State that the appointment through the College Service Commission is to maintain the equal standard of education all throughout the State of West Bengal, does not impress us. The equal standard of teachers are already maintained by NET/SLET. Similarly, receiving aid from State coffers can also not be treated as a justification for imposition of any restrictions that cannot be imposed otherwise."

59. Thus, a reading of these judgments would show that right of minority institutions to select candidates of their own choice by regulating their process of selection is upheld by the Hon'ble Supreme Court.

60. In view of the settled proposition of law, the contention of learned counsel for the University Grants Commission that by way of amendment of regulations, independence has been given to the minority institutions to select their own people without outside interference, as the right of appointment of teachers out of qualified teachers is to be left to the minority institutions alone cannot be accepted, as the process of selection of teachers cannot regulated, as it would amount to interference in administration of minority institutions.

61. The contention of the learned counsel for the respondents that regulations are in public interest to maintain standard of education also cannot be accepted as the appointment of qualified teachers as per the qualification prescribed by the University Grants Commission by the minority institutions cannot be said to violate the public interest, nor it can be said that the educational standard would not be maintained.

62. The right of minority institutions under Section 30 is absolute right being basis structure of the Constitution and therefore, any regulation interfering with the right of administration would not be applicable to the minority institutions, being violative of
Article 30(1)
of the Constitution.

63. The contention that right to administer does not include right to maladministration also cannot be accepted as the minority institutions would be bound by qualification laid down for appointment of teachers and also would be bound to follow other statutory laws necessary for running their institutions to maintain educational standard. The only restriction placed is with regard to the right to interfere in the selection of staff of the minority institutions.

64. Once the right of appointment of teachers is taken to be the right of administration, which is not even disputed by the respondents, no other conclusion than the one that the impugned regulations would not apply to minority institutions can be arrived at.

65. This Court is bound by the law
laid down by
the Hon'ble Supreme Court even in case where the question is referred to Constitutional Bench as in the case of State of Rajasthan vs. M/s.R.S.Sharma and Co. reported in (1988) 4 SCC 353, the Hon'ble Supreme Court was pleased to consider question with regard to the applicability of law when the matter stood referred to the Constitutional Bench and it was held as under:

"7. It was contended before us that the question whether on the ground of absence of reasons, the award is bad per se, is pending consideration by a Constitution Bench of this Court in C.A.Nos.3137-39 of 1985, 3145 of 1985 
Jaipur Development Authority v. Firm Chhokhamal Contractor
. It was, hence, urged that this should await adjudication on this point by the Constitution Bench. We are unable to accept this contention. In our opinion pendency of this question should not postpone all decision by this Court. One of the cardinal principles of the administration of justice is to ensure quick disposal of disputes in accordance with law, justice and equity. In the instant case the proceedings have been long procrastinated. Indeed, the learned Judge of the High Court, after narrating the incidents from 1975 to 1985, concluded in his judgment in March 1988 that was the end of the journey. He was wrong. That was only the end of a chapter in the journey and the appellant wants to begin another chapter in the journey on the plea that the award is not a reasoned one. The bargaining between the parties was entered into in 1974-75 but the award was made on December 8, 1985 i.e. a decade after the beginning of the transaction.

For the reasons stated, the writ petitions are allowed, and declaration is issued, that the impugned regulations for constitution of selection committee shall not be applicable to the minority institutions. Consequently, Writ in nature of Mandamus is issued directing the respondents to approve the selection made by the minority institutions without reference to Clause 3 of annexure to UGC Regulations 2000, subject to the selected candidates fulfilling other qualifications, experience etc. No costs. Consequently, all the connected miscellaneous petitions are closed.

ar

1. The Joint Director of Collegiate Education
The State of Tamil Nadu,
Chennai  600 006.

2. The Registrar
The University of Madras,
Centenary Building,
Chepauk, Chennai-600 005.

3. The Registrar
Thiruvalluvar University,
Fort Campus, Vellore  636 004.

4. The Manonmaniam Sundaranar University,
Abishekapatti, Tirunelveli-627 012.

5. Bharathiar University,
Coimbatore  641 046.

6. The Registrar
The Madurai Kamaraj University,
Madurai

7. The Secretary
The University Grants Commission,
New Delhi 110 002