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Judgment
N. Paul Vasanthakumar, J.—All the above writ appeals are filed by the management of St. Joseph College, Tiruchirapalli, which is a Private
Religious Minority College.W.A. No. 649 of 2007 is filed against the order passed by the learned singled Judge in W.P.(MD) No. 7188 of 2006
dated 24.9.2007 dismissing the writ petition filed by the Appellant herein (minority college) challenging the Government Order issued in G.O. Ms.
No. 1785 Education H3 Department dated 5.12.1988 insofar as paragraph 4 Clause 7 is concerned (i.e, Seniormost person in the department
shall be designated as Head of the Department in a College).
2.W.A. No. 650 of 2007 is filed by the management against the order passed in W.P(MD) No. 4882 of 2007 dated 24.9.2007, wherein a
direction was issued to the Joint Director of Collegiate Education, Tiruchirapalli, to nominate the first Respondent therein as Head of the
Department of Physics Department from 1.6.2007.
3.W.A. No. 172 of 2008 is also filed by the management of the College challenging the order made in W.P. No. 1989 of 2007 dated 8.10.2007
allowing the writ petition filed by the first Respondent in the writ appeal and to direct the management to designate the first Respondent as Head of
the Department of Commerce.
The brief facts necessary for disposal of these writ appeals are as follows:
(a) St. Joseph College, Trichy (Autonomous) is an Arts and Science College, established in the year 1844 administered by the Society of St.
Joseph College, which is a registered Society bearing registration No. 7 of 1907-08. The College is a minority educational institution coming under
the purview of Article 30 of the Constitution of India. The College is now affiliated to the Bharathidasan University, Tiruchirapalli.
(b) The College is conferred with autonomous status by the University Grants Commission (UGC). The National Assessment and Accreditation
Council (NAAC) had declared the college as ""Accredited at the Five Star Level"" in the year 2004 and UGC has awarded the status of ""Centre for
Potential for Excellence"" (CPE) in 2004.
(c) The College is a Christian Minority College having more than 3,450 students and about 150 teaching staff, apart from non-teaching staff. The
college is conducting UG and PG courses, apart from Research and Doctoral courses. It is having 15 departments and each department has a
head known as ''Head of the Department'' (HOD). According to the management, the HOD will take care of the day-to-day administration of the
department including distribution and allocation of work to the members of the faculty, collection of fees, preparing time tables, organise internal
examinations, etc. The HOD will be the ex-officio Chairman of the Board of Studies and College Academic Council.
(d) The Government of Tamil Nadu issued G.O. Ms. No. 1785 Education (H3) Department, dated 5.12.1988 giving directions to all aided
colleges to designate the senior most person in the department as HOD, irrespective of Ph.D qualification, and that the said designated person will
not get any special pay and allowance to that post. The said Government Order is challenged by the management/Appellant contending that it is an
infringement and interference in the administration of the minority management to run the college with the head and staff of its choice; that it affects
the internal autonomy of the institution; that it gives power to the Director of Collegiate Education to designate the senior most person in the
department as HOD in a minority college is not valid; that the Heads of Department is vested with the administration of the entire department like
the principal of the college; and that, the management is prevented from designating an eminent person of its choice, etc.
(e) Two of the senior most persons viz., the first Respondent in W.A. No. 650 of 2007 and 172 of 2008 have filed the respective writ petitions
complaining that they have not been designated as HOD of Physics and Commerce. Taking note of the said Government Order as well as the
various decisions of this Court and the Honourable Supreme Court, the learned Single Judge allowed the writ petitions filed by the senior most staff
viz., first Respondent in the above writ appeals and dismissed the writ petitions filed by the Appellant challenging the Government Order, against
which these writ appeals are preferred by the management of the College.
Mr. Isaac Mohanlal, learned Counsel for the Appellant College management contended that the Government Order was issued to
nominate/designate the senior most person in the department as HOD in Government Colleges/aided colleges and there is no reference about the
applicability of the same to minority colleges where the appointing authority is the management and the management alone can designate the HOD.
The learned Counsel also submitted that HOD post is like the post of the Principal of the College, having administrative responsibility and the
choice of designation should be left with the management. By the impugned Government Order the said right of the management is taken away
which is an interference in the right of the administration, guaranteed under Article 30(1) of the Constitution of India. The learned Counsel also
submitted that even though the Division Bench of this Court earlier upheld the claim of a seniormost lecturer to be designated as HOD, the
Government Order was not challenged in that writ petition and therefore the said judgment cannot be applied to these cases, as virus of the
Government Order is challenged by the management in this matter. The learned Counsel also relied on the judgment of the Division Bench reported
in 2011 (1) CTC 162 (The Forum of Minority Institutions and Associations v. The State of Tamil Nadu) and contended that in the said decision
the University Grants Commission''s direction to constitute a Committee to select staff of the minority colleges has been set aside by this Court and
the principle behind the said judgment is equally applicable to the facts of the case as HOD nomination/designation is the issue in these writ
appeals.
Mr. K. Vellaisamy and Mr. M. Saravanan. learned Counsels for the first Respondent in W.A. Nos. 650/2007 and 172/2008 on the other hand
submitted that the seniormost lecturers were also initially selected by the minority management and they are continuously employed in the college
without any blemish and so long as their performance is found good by the minority management, they are to be designated as HOD which will
confer some status, though not with additional emolument or allowance and it is one of the conditions of service. The impugned order nowhere
restricts the right of the management in the administration and it is only a regulation to designate the seniormost person as HOD. The learned
Counsels also submitted that conditions of service can also be fixed by the Government as the Appellant College is getting cent percentage aid
from the Government and therefore the regulations issued by the Government is bound to be followed by the minority management also. The
learned Counsels also submitted that the admission of students, appointment of Lecturer, selection of the principal are vested with the management
and insofar as the designation of HOD is concerned, it is only designation and no selection process arises to exercise the discretion of the minority
management and therefore the right of administration is not at all affected and as such the Government Order is not in violation of the Article 30(1)
of the constitution of India. The learned Counsels heavily relied on the judgment of the Division Bench reported in 2001 (2) CTC 84 (The Principal
and Secretary Madras Christian College v. Dr. M. Shams and another) where similar issue regarding the designation of seniormost person as
HOD arose and this Court held that even in minority colleges seniormost person should be designated as HOD. The learned Counsel ultimately
submitted that the order of the learned single Judge is legal and no interference is called for.
We have also heard the learned Special Government Pleader for Respondents 1 to 3 in W.A. No. 649 of 2007.
We have considered the rival submissions made by the respective counsels.
The point for consideration in these writ appeals are whether the impugned Government order is affecting the rights of the Appellant minority
management in any manner.
The Appellant College is governed under the Tamil Nadu Private Colleges Regulation Act, 1976, except certain provisions which are
specifically held not applicable. Under the said Act, minority religious college is also covered. Section 15 of the Act states that the University may
make regulation, statute or ordinance specifying qualification required for appointment of teachers in any private college and as per Section 15(2),
the Government may make rule specifying the qualifications required for appointment to any post other than teachers in any private college. Section
17 empowers the Government to make rules regarding conditions of service. Tamil Nadu Private College Regulation Rules, 1976 was framed u/s
Rule 7 provides for payment of grant and Rule 11 deals with conditions of service etc., of Teachers and others in college.
The Government Order issued which was impugned in the writ petition filed by the management is based on the Government of India, Ministry
of Human Resources Development instructions issued on 17.6.1987, 7.9.1987, 22.7.1988 and 20.9.1988. The relevant clause in the Government
order reads as follows:
The Seniormost person in the department of college irrespective of his Ph.D qualification will be nominated and designated as Senior
Lecturer/Selection Grade Lecturer/ Reader/ Head of the Department, by the Director of Collegiate Education and that no special pay will be
allowed to that post.
This is the only clause challenged by the Appellant management. From the perusal of the above clause in the Government Order, it is evident that it
is only designation of status as HOD and no selection is involved. The learned Counsel for the Appellant also submitted that for designating
seniormost person as HOD, no selection procedure is contemplated and the only objection is that discretion of the management to designate any
person in the department as HOD, is taken away. Admittedly senior most person to be designated as HOD is also selected and appointed by the
management of the minority College initially and his continuance in the college without giving room for any complaint by observing the rules and
regulations of the College is not disputed. If any person is unfit to continue as a Lecturer/Senior Lecturer/Reader, he will not be in a position to
continue in the college as disciplinary power is vested with the management. Thus, on any account, a person serving in the minority college alone is
to be nominated/designated as HOD.
(a) In the decision reported in The Ahmedabad St. Xavier''s College Society and Another Vs. State of Gujarat and Another, the Supreme
Court listed out the ambit of right to administration in paragraph 19, which reads thus,
...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.
(b) In the decision reported in Islamic Academy of Education and Another Vs. State of Karnataka and Others, the Supreme Court held that
reasonable regulations can be laid down by the State Government. Paragraphs 121 reads as follows:
The right to administer does not amount to the right to maladminister and the right is not free from regulation. 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.
In paragraph 123, the Supreme Court broadly categorised the permissible regulations, which reads thus, ""123. Some of the permissible
regulations/restrictions governing enjoyment of Article 30(1) of the Constitution are:
(i) Guidelines for the efficiency and excellence of educational standards (see Sidhajbhai v. State of Gujarat (AIR 1963 SC 540) State of Kerala,
etc. Vs. Very Rev. Mother Provincial, etc., , and All Saints High School, Hyderabad and Others Vs. Government of Andhra Pradesh and Others,
.
(ii) Regulations ensuring the security of the services of the teachers or other employees (see Kerala Education Bill, 1957, Re (AIR 1958 SC 956)
and All Saints High School, Hyderabad and Others Vs. Government of Andhra Pradesh and Others, .
(iii) Introduction of an outside authority or controlling voice in the matter of service conditions of employees (see All Saints High School,
Hyderabad and Others Vs. Government of Andhra Pradesh and Others, .
(iv) Framing rules and regulations governing the conditions of service of teachers and employees and their pay and allowances (see State of
Kerala, etc. Vs. Very Rev. Mother Provincial, etc., and All Saints High School, Hyderabad and Others Vs. Government of Andhra Pradesh and
Others, .
(v) Appointing a high official with authority and guidance to oversee that rules regarding conditions of service are not violated, but, however, such
an authority should not be given blanket, unanalyzed and arbitrary powers (see All Saints High School, Hyderabad and Others Vs. Government of
Andhra Pradesh and Others, .
(vi) Prescribing courses of study or syllabi or the nature of books (see State of Kerala, etc. Vs. Very Rev. Mother Provincial, etc., and All Saints
High School, Hyderabad and Others Vs. Government of Andhra Pradesh and Others, .
(vii) Regulation in the interest of efficiency of instruction, discipline, health, sanitation, morality, public order and the like (see Sidhajbhai v. State of
Gujarat (AIR 1963 SC 540).
(c) In the decision reported in Lily Kurian Vs. Sr. Lewina and Others, in paragraph 36 the Supreme Court held as follows:
Protection of the minorities is an article of faith in the Constitution of India. The right to the administration of institutions of minority''s choice
enshrined in Article 30(1) means ''management of the affairs'' of the institution. That right is, however, subject to the regulatory power of the State.
Article 30(1) is not a charter for maladministration; regulation, so that the right to administer may be better exercised for the benefit of the
institution, is permissible; but the moment one goes beyond that and imposes, what is in truth, not a mere regulation but an impairment of the right
to administer, the Article comes into play and the interference cannot be justified by pleading the interests of the general public; the interests
justifying interference can only be the interests of the minority concerned.
The purport of the impugned order is to designate the seniormost Lecturer/Selection Grade Lecturer/Reader as HOD as no
selection/appointment is involved for designation of the seniormost person as the right of the management to administer the college without
interference, which is guaranteed right under Article 30(1) of the Constitution of India, is not affected. It is only a regulatory measure taken by the
Government to give weight age to the seniority at least at the HOD level. If the seniormost person, who is designated as HOD is not performing his
duties and if any dereliction of duty is noticed, it is upto the management to take action against such person and the same is also not curtailed in any
manner. Conditions of service to a person in service with some status after a long number of years of service based on seniority is a legitimate
expectation and the same is only recognized by the Government Order which is not in any way affecting the rights of the minority management.
Seniority plays a vital role in Employee''s service career, which has to be recognized. The Supreme Court in the decision reported in AIR 2010
SCW 2116 (H.S. Vankani v. State of Gujarat) considered the said issue and in paragraph 25 held thus,
Seniority is a civil right which has an important and vital role to play in one''s service career. Future promotion of a Government servant
depends either on strict seniority or on the basis of seniority-cum-merit or merit-cum-seniority etc. Seniority once settled is decisive in the upward
march in one''s chosen work or calling and gives certainty and assurance and boosts the morale to do quality work. It instills confidence, spreads
harmony and commands respect among colleagues which is a paramount factor for good and sound administration. If the settled seniority at the
instance of one''s junior in service is unsettled, it may generate bitterness, resentment, hostility among the Government servants and the enthusiasm
to do quality work might be lost....
Thus, the contention raised by the learned Counsel for the Appellant that the impugned Government Order, particularly Clause 7 is in violation of
Article 30(1) of the Constitution of India and such regulation will infringe the right of the management is unsustainable.
(a) Similar issue regarding the right of a Teacher, who is attaining the age of superannuation during the middle of the academic year in a
minority school, can claim the right of re-employment as a matter of right was considered by the Division Bench of this Court in W.A. No. 1179,
1242, 1243/1993, 132/1994 AND 14226/1993 and the Division Bench of this Court in the decision dated 6.9.1994. The Division Bench held
that the teachers attaining the age of superannuation during the middle of the academic year are entitled to claim re-employment even in minority
schools, if they are satisfying the general conditions viz., they are physically fit, and their character and conduct are good. The Division Bench in its
decision relied on the judgment of the Supreme Court reported in The Ahmedabad St. Xavier''s College Society and Another Vs. State of Gujarat
and Another, to come to the above conclusion. In the above Supreme Court judgment it is held that minority institutions under the guise of their
right guaranteed under Article 30 of the Constitution cannot claim total immunity from the regulations and laws of the University, if they want
affiliation or recognition, but the character of permissible regulation must depend upon their purpose. The Division Bench pointed out that the
purpose of the Government Order permitting re-employment is not to impose a new teacher upon the minority institutions receiving aid and it is the
very same teacher who has been selected by the private management and continued in their service upto the age of superannuation and has been
found fit for further continuation, is directed to be re-employed in order to ensure that the benefit of the service is available to students during the
rest of the academic year. The Division Bench ultimately held that the Government order regarding re-employment was reasonable and was merely
regulatory in nature. A professor, who worked in a minority college is entitled to demand re-employment till the end of the academic year was
considered by this Court in the decision reported in 1996 WLR 259 (C. Davidthampi Dhas v. The Governing Body of N.M. Christian College,
Marthandam and Ors.), wherein this Court held that re-employment can be claimed as per the Government Order, though the management is a
minority college.
(b) In the decision reported in Frank Anthony Public School Employees'' Association Vs. Union of India (UOI) and Others, the Supreme Court
held thus:
The excellence of the instruction provided by an institution would depend directly on the excellence of the teaching staff and in turn, that would
depend on the quality and the contentment of the teachers. Conditions of service pertaining to minimum qualifications of teachers, their salaries,
allowances and other conditions of service which ensure security, contentment and decent living standards to teachers and which will consequently
enable them to render better service to the institution and the pupils cannot surely be said to be violative of the fundamental right guaranteed by
Article 30(1) of the Constitution. The management of minority Educational Institution cannot be permitted under the guise of the fundamental right
guaranteed by Article 30(1) of the Constitution to oppress or exploit its employees any more than any other private employee. Oppression or
exploitation of the teaching staff of an educational institution is bound to lead, inevitably, to discontent and deterioration of the standard of
instruction imparted in the institution affecting adversely the object of making the institution an effective vehicle of education for the minority
community or other persons who resort to it. The management of minority institution cannot complain of invasion of the fundamental right to
administer the institution when it denies the members of its staff the opportunity to achieve the very object of Article 30(1) which is to make the
institution an effective vehicle of education.
(c) In St. Stephen''s College etc., etc. Vs. The University of Delhi Etc., Etc., the Supreme Court held that,
...the regulations which may lawfully be imposed as a condition of receiving grant must be directed in making the institution an effective minority
institution. The regulation cannot change the character of the minority 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. It must be conducive to making the institution an effective vehicle of
education for the minority community or other persons who resort to it. It is thus evident that the rights under Article 30(1) remain unaffected even
after securing financial assistance from the Government.
(d) In T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others, , the Supreme Court held that the right conferred on minority
institutions under Article 30 is only to ensure quality and there can be regulatory measures for ensuring educational character and standards and
maintaining academic excellence. There can be checks of administration as are necessary to ensure that the administration is efficient and sound so
as to serve the academic needs of the institution.
(e) Any regulation issued without affecting the right of the management to select a candidate for appointment is upheld by this Court as well as the
Honourable Supreme Court in the decisions reported in N. Ammad Vs. The Manager, Emjay High School and Others, ; The Secretary,
Malankara Syrian Catholic College Vs. T. Jose and Others, . In the latter case in paragraph 21 by following the earlier decisions the Supreme
Court held that 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. It is also made
clear, 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, such regulations to that extent will be inapplicable to minority institutions. The said cases dealt with selection of Principal or
Headmaster of an institution and the Supreme Court held that such power is vested with the management as the Principal/Headmaster post is of
primary importance, who will be the head of the institution responsible for the functional efficiency as well as the quality of education and discipline
in the institution. He is also responsible for maintaining philosophy and objects of the institution.
In this case, as noticed by us, the impugned Government Order is recognising the right of a seniormost person in the department to be
nominated and designated as Seniormost Lecturer/Selection Grade Lecturer/Reader/Head of the Department. It is undoubtedly a condition of
service to persons, who are in service in the minority college and in other words, it is recognition of right to the staff serving in the very same
minority college to enjoy certain status without any monitory benefit. The impugned order was issued by the Government to prevent
maladministration and it is intended to promote the excellence of education of the minority college itself. Therefore, it is only regulatory in nature
and not in any way interference with the rights of the minority management.
The learned Counsel for the Appellant submitted that the HOD is to be involved in academic matters including decision making. Merely
because the seniormost person is designated as HOD/Seniormost Lecturer/Selection Grade Lecturer/Reader, the management is not prevented
from getting the views of other staff members regarding any aspect including academic matters and the collective view of the staff shall be taken
into consideration without depending upon the view expressed by the HOD/Seniormost person. Hence the contention raised by the learned
Counsel for the Appellant in that respect has no substance.
The learned single Judge considered all these aspects and dismissed the writ petitions filed by the management and allowed the writ petition
filed by the seniormost lecturers for designation. We do not find any reason to interfere with the said findings given by the learned single Judge.
In the result, the writ appeals are dismissed and the order of the learned single Judge are confirmed. There is no order as to costs. Connected
miscellaneous petitions are also dismissed.