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Judgment
D. Murugesan, J.—Both the above appeals arise out of a common order of the learned single Judge dated 6.1.92 made in W.P.Nos.11762
of 1989 and 6693 of 1990. The unsuccessful petitioner in W.P.No.11762 of 1989 and the fourth respondent in W.P.No.6693 of 1990, filed by
the management of the minority institution, has filed the present writ appeals. For the sake of convenience, the parties are referred to as in
W.A.No.972 of 1992.
In both the writ appeals, the following points arise for our consideration.
(1) Whether Rule 11(4)(i) and (ii) of the Tamil Nadu Private Colleges (Regulation) Rules, 1976 framed u/s 53 of the Tamil Nadu Private Colleges
(Regulation) Act, 1976 is ultra vires of the Constitution of India inasmuch as the said rule is also made applicable to the minority educational
institutions?
(2) Having framed the said Rule, whether the State Government is empowered to relax the same?
The factual matrix that gives rise to the filing of the writ appeals are as follows. The appellant was appointed as a Typist in the year 1979 in
St.Jude''s College, Thoothur, Kanyakumari District, namely the fourth respondent. She had also passed the Accounts Test for Subordinate
Officers (Part-I) and was fully qualified to hold the post of Assistant. She was eligible to be considered for promotion to the said post under Rule
11(4)(i) of the Rules as she was the senior most non-teaching staff. Sometime during the year 1987, a post of Assistant fell vacant and the
Secretary of the minority institution decided to fill up the said post by appointing one K.Damy, the fifth respondent by direct recruitment and
forwarded the proposals to the Deputy Director of Collegiate Education, Tirunelveli Region, the third respondent for approval. On coming to
know of the same, the appellant made a representation to the third respondent on 23.4.87. The third respondent in his communication dated
8.6.87 refused to approve the appointment of the fifth respondent with a further direction that the appellant should be promoted in accordance with
seniority. Though such a direction was issued, the fourth respondent did not promote the appellant and hence, the appellant once again made a
complaint to the Director of Collegiate Education, the second respondent as to the inaction on the part of the fourth respondent institution to
promote the appellant to the post of Assistant. The appellant in the meantime, came to know of the relaxation of the rules granted by the
Government, the first respondent, for the appointment of the fifth respondent directly to the post of Assistant. A further representation was made
by the appellant on 23.3.89 expressing her grievance over the appointment of the fifth respondent directly to the post of Assistant as well as the
relaxation given to his appointment. Since no action was taken, the appellant filed W.P.No.11762 of 1989 for a direction to the fourth respondent
to promote her to the post of Assistant with a further prayer for payment of arrears of salary. While the said writ petition was pending, the fourth
respondent viz., the minority institution filed W.P.No.6693 of 1990 for a writ of declaration declaring Rule 11(4)(i) and (ii) of the Rules as ultra
vires of the Constitution of India, illegal and void. Both the writ petitions were heard together by the learned single Judge and by common order
dated 6.1.92, the learned Judge dismissed W.P.No.11762 of 1989 and allowed W.P.No.6693 of 1990 by striking down the rule on the ground
that the said rule offends Article 30(1) of the Constitution of India. Aggrieved by the said common order, the present writ appeals have been filed.
We heard Mr.K.Chandru, learned senior counsel appearing for the appellant, Mr.A.L.Somayaji, learned senior counsel appearing for the fourth
respondent institution, Mr.V.Raghupathi, learned Government Advocate appearing for the respondents 1 to 3 and Mr.C.Jagadeesh Chandran
appearing for the fifth respondent.
Before we embark upon in to the consideration of the points raised in the writ appeals, it would be appropriate to refer to the provisions relating
to the source of powers for the Government to frame rules in regard to the service conditions of the non-teaching staff of private colleges. The
object of the Act is to regulate the conditions of service of teachers in the private colleges and also the rules relating to managing bodies and
payment of grants to private colleges to have a statutory force. Though the said Act was enacted in respect of all private colleges, taking into
consideration of the protection guaranteed under Article 30(1) of the Constitution of India in respect of the minority institutions, some of the
provisions of the Act were made inapplicable to minority institutions. Though permission of the Government to start a private college is mandatory
u/s 5, any minority institution whether based on religion or language is exempted from such permission u/s 8 of the Act, as it may establish and
administer any private college without permission. Though every private college shall have a college committee u/s 11 of the Act, such a
constitution of the college committee is not insisted upon in respect of a minority college. However, under Chapter IV of the Act, terms and
conditions of service of teachers and other persons employed in private colleges have been prescribed. Section 15 relates to qualifications of
teachers and other persons employed in private colleges. Section 16 relates to the appointment of teachers and other persons in private colleges.
Section 17 relates to the conditions of service, etc. of teachers and other persons employed in private colleges. Section 18 relates to the code of
conduct of teachers and other persons employed in private colleges. Section 19 relates to the dismissal, removal or reduction in rank or suspension
of teachers or other persons employed in private colleges. Sections 20 and 21 relate to the appeal and second appeal against the orders of
dismissal, removal or reduction in rank, etc. However, u/s 24(3) of the Act, the provisions of sub-section (2) of Section 18 and of Sections 19 to
22 or any rule providing for all or any of the matters specified therein or any order made in relation to any such matter shall not apply to a minority
college. The said Section however, does not exempt the applicability of the provisions of Section 15, 16 and 17 of the Act in respect of both
teaching and non-teaching staff of the minority institutions. Section 17 of the Act reads as under:-
Conditions of service, etc. of teachers and other persons employed in private colleges.-The Government may make rules in consultation with the
University regulating the number and conditions of service (including promotion, pay, allowances, leave, pension, provident fund, insurance and age
of retirement and rights as respects disciplinary matters but excluding qualifications) of the teachers and other persons employed in any private
college.
Under Section 53 of the Act, the Government is also empowered to frame rules to carry out the purposes of the Act. Hence, the source of power
for the Government to frame rules in respect of the service conditions of both the teaching and non-teaching staff of all private colleges including
those established and administered by minorities can be traced to Section 17 read with Section 53 of the Act. In exercise of the said powers, the
Government framed the Tamil Nadu Private Colleges (Regulation) Rules 1976, by G.O.Ms.No.1285, Education dated 22.6.76. By a subsequent
G.O.Ms.No.60, Education (RD) dated 20.1.86, clause (i) of sub-rule (4) of Rule 11 was substituted and by G.O.Ms.No.1690, Education dated
21.10.86, clause (ii) of sub-rule (4) of Rule 11 was substituted. The said clauses read as under:-
4(i) Promotions in respect of teaching staff shall be made on ground of merit and ability, seniority being considered only where merit and ability
are approximately equal, and in respect of non-teaching staff promotions shall be made on seniority basis, provided other conditions regarding
qualification are satisfied.
(ii) The committee shall fill up the posts by promotion or by direct recruitment. The committee shall, while making promotion, consider the claims of
all the qualified teachers in that college. If, however, none of the qualified teachers in the college is found suitable for promotion, the vacancy shall
be filled up by direct recruitment by calling for applications from qualified persons through the Press or by calling for a list of candidates from the
Employment Exchange by following the rule of reservation ordered by the Government from time to time for direct recruitment.
The challenge to the above rule is basically on the ground that it offends the right conferred on the minorities under Article 30(1) of the
Constitution of India. Article 30(1) of the Constitution of India reads thus:-
All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
The said Article came up for consideration before a Constitution Bench of the Supreme Court as early as in the year 1962. In Re. Kerala
Education Bill AIR 1958 S.C. 956 the Supreme Court observed as under:-
The right guaranteed under Article 39 is a right that is absolute and any law or executive direction which infringes the substance of that right is void
to the extent of infringement. But, the absolute character of the right will not preclude making of regulations in the true interests of efficiency or
instruction, discipline, health, sanitation, morality, public order and the like, as such regulations are not restrictions on the substance of the right
guaranteed by the Constitution"".
In the judgment in REV.SIDHRAJBHAI SABBAJ AND OTHERS v. STATE OF GUJARAT AND ANOTHER AIR 1963 SC 540 and the
Supreme Court in paragraph 10 of the judgment observed thus:-
Article 30(1) provides that all minorities have the right to establish and administer educational institutions of their choice, and Art. 30(2) enjoins the
State, in granting aid to educational institutions not to discriminate against any educational institution on the ground that it is under the management
of a minority, whether based on religion or language. Clause(2) is only a phase of the non-discrimination clause of the Constitution and does not
derogate from the provisions made in clause (1). The clause is moulded in terms negative; the State is thereby enjoined not to discriminate in
granting aid to educational institutions on the ground that the management of the institution is in the hands of a minority, religious or linguistic, but the
form is not susceptible of the inference that the State competent otherwise to discriminate so as to impose restrictions upon the substance of the
right to establish and administer educational institutions by minorities, religious or linguistic. Unlike Art. 19, the fundamental freedom under clause
(1) of Art. 30, is absolute in terms; it is not made subject to any reasonable restrictions of the nature the fundamental freedoms enunciated in Art.
19 may be subjected to. All minorities, linguistic or religious have by Art. 30(1) an absolute right to establish and administer educational institutions
of their choice; and any law or executive direction which seeks to infringe the substance of that right under Art. 30(1) would to that extent be void.
This, however, is not to say that it is not open to the State to impose regulations upon the exercise of this right. The fundamental freedom is to
establish and to administer educational institutions; it is a right to establish and administer what are in truth educational institutions - institutions
which cater to the educational needs of the citizens, or sections thereof. Regulation made in the true interests of efficiency of instruction discipline,
health, sanitation, morality, public order and the like may undoubtedly be imposed. Such regulations are not restrictions on the substances of the
right which is guaranteed; they secure the proper functioning of the institutions, in matters educational.
A Constitution Bench of the Supreme Court in State of Kerala, etc. Vs. Very Rev. Mother Provincial, etc., while considering the right of a
minority to establish and administer educational institution guaranteed under Article 30(1) of the Constitution of India, has held as follows:-
The next part of the right relates to the administration of such institutions. 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 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. No part of this management can be taken
away and vested in another body without an encroachment upon the guaranteed right.
There is, however, an exception to this and it is that the standards of education are not a part of management as such. These standards concern the
body politic and are dictated by considerations of the advancement of the country and its people. Therefore, if Universities establish the syllabi for
examinations, they must be followed subject, however, to special subjects which the institutions may seek to teach, and to a certain extent the State
may also regulate the conditions of employment of teachers and the health and hygiene of students. Such regulations do not bear directly upon
management as such although they may indirectly affect it. Yet the right of the State to regulate education, educational standards and allied matters
cannot be denied. 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.
While considering the validity of some of the provisions of Andhra Pradesh Recognised Private Educational Institutions Control Act, 1975 with
reference to Article 30(1) of the Constitution of India, the Supreme Court in All Saints High School, Hyderabad and Others Vs. Government of
Andhra Pradesh and Others, has held thus:-
It is, therefore, open to the Government or the University to frame rules and regulations governing the conditions of service of teachers in order to
secure their tenure of service and to appoint a high authority armed with sufficient guidance to see that the said rules are not violated or the
members of the staff are not arbitrarily treated or innocently victimized. In such a case the purpose is not to interfere with the internal administration
or autonomy of the institution but it is merely to improve the excellence and efficiency of the education because a really good education can be
received only if the tone and temper of the teachers are so framed as to make them teach the students with devotion and dedication and put them
above all controversy.
In yet another judgment in Frank Anthony Public School Employees'' Association Vs. Union of India (UOI) and Others, while considering the
right of a minority to establish and administer educational institution under Article 30(1) of the Constitution of India, the Supreme Court has held as
follows:-
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 Art. 30(1) is two fold, 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.
Holding so, the Apex Court held that the provisions relating to prior approval by the educational authorities is necessarily to be followed even in
the case of action taken by minority institutions against its teachers.
An analysis of the above judgments would indicate that the right of a minority to establish and administer educational institution guaranteed
under Article 30(1) of the Constitution of India is a fundamental right declared in terms absolute. Though the said Article is couched in absolute
terms, it does not follow that the right guaranteed is not subject to regulatory laws which would not amount to its abridgement. In the words of
Justice Mathew of the Supreme Court speaking for himself and Justice Chandrachud in The Ahmedabad St. Xavier''s College Society and
Another Vs. State of Gujarat and Another, the right guaranteed under Article 30(1) of the Constitution of India has been observed as follows:-
In considering the question whether a regulation imposing a condition subserves the purpose for which recognition or affiliation is granted, it is
necessary to have regard to what regulation the appropriate authority may make and impose in respect of an educational institution established and
administered by a religious minority and receiving to recognition or aid. Such an institution will, of course, be subject to the general laws of the land
like the law of taxation, law relating to sanitation, transfer of property, or registration of documents, etc., because they are laws affecting not only
educational institutions established by religious minorities but also all other persons and institutions. It cannot be said that by these general laws, the
State in any way takes away or abridges the right guaranteed under Article 30(1). Because article 30(1) is couched in absolute terms, it does not
follow that the right guaranteed is not subject to regulatory laws which would not amount to its abridgement. It is a total misconception to say that
because the right is couched in absolute terms, the exercise of the right cannot be regulated or that every regulation of that right would be an
abridgement of the right.
It is further manifestly clear that in the matters of maintaining a uniform standard in education, the State can regulate the conditions of employment
of teachers and other staff of the private aided colleges including the minority institutions. Conditions of service of both teaching and non-teaching
staff of the private colleges as found in Sections 15,16 and 17 of ""the Act"" are not excluded by the provisions of Section 24(3) of the Act.
Regulating conditions of service by both the teaching and non-teaching staff cannot be in any way termed as infringing Article 39(1) of the
Constitution of India. Hence, we do not find any infringement of the right conferred on a minority under Article 30(1) of the Constitution of India
while the State Government framed the rules, more particularly, Rule 11(4)(i) and (ii) of the rules requiring the minority institutions to consider the
promotion in the case of non-teaching staff only on the basis of seniority, more so, there is no challenge to Section 17 of the Act which enables the
Government to make rules prescribing the conditions of service for both teachers and other staff namely non-teaching staff.
Much reliance was placed by Mr.A.L.Somayaji, learned senior counsel appearing for the fourth respondent institution on the judgment of the
Supreme Court in N. Ammad Vs. The Manager, Emjay High School and Others, In that case, the Supreme Court was considering the right of the
management of a aided minority school regarding appointment of a Headmaster. The Supreme Court finally held that the minority institution has
absolute right to select and appoint a person of its choice for the post of Headmaster. What weighed Their Lordships of the Supreme Court to
declare so was that the post of Headmaster is a prime important in administration of the educational institution. In fact, the Supreme Court referred
to the emphasize of such importance of a Headmaster of a school made by a Full Bench of the Kerala High Court in Aldo Maria Patroni and
Another Vs. E.C. Kesavan and Others, which reads thus:-
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 traditions, 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 right guaranteed by Article 30(1) of
the Constitution. To hold otherwise will be to make the right ''a teasing illusion, a promise of unreality''.
The Supreme Court also took note of the judgment of a nine Judge Bench in the matter of The Ahmedabad St. Xavier''s College Society and
Another Vs. State of Gujarat and Another, which highlighted the role of the Principal of the college in the administration of the college. The relevant
paragraph of the observation of the Supreme Court reads thus:-
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.
The Supreme Court also took note of the observation of Justice Krishna Iyer in the judgment in The Gandhi Faiz-E-Am College, Shahjahanpur
Vs. University of Agra and Another, as to the importance of the post of Principal in the following words:-
An activist principal is an asset in discharging these duties which are inextricably interlaced with academic functions. The principal is an invaluable
insider-the Management''s own choice-not an outsider answerable to the Vice-Chancellor. He brings into the work of the Managing Committee
that intimate acquaintance with educational operations and that necessary expression of student-teacher aspirations and complaints which are so
essential for the minority institution to achieve a happy marriage between individuality and excellence.
Only in the said context, the Supreme Court held that the minority institution should be left to choose the Headmaster of its choice and negatived
the contention for promotion of a senior most teacher to the post of Headmaster. However, in the case on hand, the post of Assistant cannot be in
any way said to be that much important to play a role in the administration of an institution compared to the importance and the role of a Principal
to administer the institution in the capacity of a head of the institution. Therefore, we are of the view that the above judgment relied upon by the
learned senior counsel for the fourth respondent institution is not applicable to the facts of this case. Equally, the Division Bench judgment of this
Court relied upon by the learned senior counsel for the appellant in ""L.PAULRAJ v. THE DISTRICT EDUCATIONAL OFFICER, TANJORE
AND THREE OTHERS 1991 W.L.R. 501 also relates to a case of appointment of a Headmaster in a minority institution. For the above reasons,
we hold that Rule 11(4)(i) and (ii) is valid and cannot be in any way said that it either offends or infringes the right guaranteed to the minorities
under Article 30(1) of the Constitution of India to establish and administer educational institutions. In view of our conclusion, we are unable to
sustain the order of the learned single Judge holding the said Rule infringes Article 30(1) of the Constitution of India. Accordingly, we answer the
first point in the negative.
Coming to the second point, we have already held that the Government is empowered to make rules relating to the conditions of service and
other persons employed in private colleges by virtue of the powers conferred u/s 17 read with Section 53 of the Act. When once such rules are
made, the private colleges are bound to follow the same. It is not the case of the respondents that the State Government is empowered either
under the Act or under the Rules to exempt any of the provisions of the Rules. In the absence of such power, the State Government cannot permit
any relaxation of the rules. A similar view had been taken by a learned single of this Court in the judgment in W.P.Nos.6607 of 1991, 17963 and
18718 of 1992 dated 5.9.95. In yet another judgment in ""RAJENDRAN v. STATE 1991 W.L.R. 694 this Court also had taken a similar view. In
that view of the matter, we do not find any justification on the part of the Government in relaxing the rule impugned in the writ petition to enable the
college to appoint the fifth respondent as an Assistant. A contention was also raised that in the absence of challenge to the Government Order
made in G.O.Ms.No.1051, Education dated 11.8.89 approving the appointment of the fifth respondent by relaxing the rules, no direction could be
given at the instance of the appellant without there being any challenge to the Government Order. We do not find any force in the said contention
as the said Government Order is ex facie illegal and was passed without any power of relaxation. In our considered view, the appellant can
maintain the writ petition for a direction to promote her to the post of Assistant even without there being a challenge to the said Government Order.
For the foregoing reasons, we do not agree with the views taken by the learned single Judge in both the writ petitions. Accordingly, the
common order of the learned single Judge dated 6.1.92 is set aside and both the writ appeals are allowed. Consequently, W.P.No.11762 of 1989
is allowed and W.P.No.6693 of 1990 is dismissed. No costs.