Full Judgment Text
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PETITIONER:
STATE OF KERALA, ETC.
Vs.
RESPONDENT:
VERY REV. MOTHER PROVINCIAL, ETC.
DATE OF JUDGMENT:
10/08/1970
BENCH:
HIDAYATULLAH, M. (CJ)
BENCH:
HIDAYATULLAH, M. (CJ)
SHAH, J.C.
HEGDE, K.S.
GROVER, A.N.
RAY, A.N.
DUA, I.D.
CITATION:
1970 AIR 2079 1971 SCR (1) 734
1970 SCC (2) 417
CITATOR INFO :
R 1974 SC1389 (18,27,28,41,52,85,101,102,109
RF 1975 SC1821 (23,25,28,29,38,40)
RF 1979 SC 52 (35)
R 1979 SC 83 (5)
RF 1980 SC1042 (2,3,12,36,44,81,95,108)
R 1983 SC 1 (142)
E&R 1987 SC 311 (10,11,17,18)
RF 1987 SC1210 (9)
D 1988 SC 305 (7,16)
R 1990 SC 695 (5,6)
ACT:
Kerala University Act 9 of 1969-Ss. 48, 49, 53, 56, 58 and
63-Constitutional validity of-Constitution of India-Art.
30(1)-Scope of
HEADNOTE:
The Kerala University Act 1969 was passed to reorganise the
University of Kerala with a view to establishing a teaching,
residential and affiliating University for the southern
districts of the State of Kerala. Some of its provisions
affected private colleges, particularly those founded by
minority communities in the State. Their constitutional
validity was challenged by some members of those communities
on various grounds in writ petitions filed in the High
Court.
The provisions challenged were mainly those contained in
Chapters VIII & IX of the Act. By ss. 48 and 49, an
’Educational Agency’ which had established and was
maintaining a private college or a ’corporate management’
which was managing more than one private college, were
required to set up a governing body for a private college or
a managing council for private colleges under one corporate
management. The sections provided for the composition of
the two bodies which were to include the Principals and
managers of the private colleges, and nominees of the
University and Government, as well as elected
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representatives of ,teachers. Sub-section (2) provided, for
the new bodies becoming bodies corporate having perpetual
succession and a common seal. Sub-section (4) provided that
the members would hold office for four years and by sub-
section (5) of each section a duty was cast on the new
governing body or the managing council ’to administer’ the
private college or colleges in accordance with the
provisions of the Act. Sub-section (6) in each section laid
down that the powers and functions of the new bodies, the
removal of members thereof and the procedure to be followed
by them, shall be prescribed by statutes.
The petitioners challenged the provisions of these two
sections as also inter alia those of (a) sub-sections (1),
(2), (3) and (9) of s. 53 which conferred on the Syndicate
of the University the Power to -veto the decisions of the
governing council; and a right of appeal to any person
aggrieved by their action; (b) section 56, which conferred
ultimate power on the University and the Syndicate in
disciplinary matters in respect of teachers: (c) s. 58,
which removed membership of the Legislative Assembly as a
disqualification for teachers; and (d) s.63 (I)-Which
provided that whenever government was satisfied that a grave
situation had arisen in the working of a private college, it
could inter alia, appoint the University to manage the
affairs of such private college for a temporary period. It
was contended that these provisions of the new Act were
violative of Article 30, which protects the rights of the
minorities to establish and administer educational
institutions of their choice as also Articles 19(1) (f), and
14 of the Constitution.
735
The High Court allowed the writ petitions and declared some
of the provisions of the Act invalid. On appeal to this
Court,
HELD: The High Court was right in holding that sub-ss. (2)
and (4) of ss. .48 and 49 are ultra vires Art. 30(1). Sub-
section (6) of each of these two sections are also ultra
vires : they offend more than the other two of which they
are a part and parcel. The High Court was also right in
declaring that sub-ss. (1), (2), (9) and of s. 53, sub-ss.
(2) and (4) of s. 56, are ultra vires as they fall within
ss. 48 and 49; that s. 58 (in so far as it removes
disqualification which the founders may not like to agree
to, and s. 63 are ultra vires Art. 30(1) in respect of the
minority institutions. [746 E]
It is obvious that after the erection of the governing body
or the managing council the founders or even the minority
community had no hand in the administration. The two bodies
are vested with the complete administration of the
institutions and were not answerable to the founders in this
respect. Sub-sections(2), (4), (5) and (6) of ss. 48 and 49
clearly vest the management and administration in the hands
of the two bodies with mandates from the University. [743 Al
Coupled with this is the power of the Vice-Chancellor and
the Syndicate under subsections (2) and (4) of s. 56 to have
the final say in respect of disciplinary proceedings against
teachers. [744 B]
Furthermore, the provisions of s.58 granting special
privileges to teachers who happened to be members of the
Legislative Assembly enabled political parties to come into
the picture of administration of minority institutions, and
coupled with the choice of nominated members left to
Government and the University under ss. 48 and 49, it was
clear there was much room for interference by persons other
than those in whom the founding community would have
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confidence. [745 A]
The provisions of s. 63 laid down elaborate procedure for
management of the private colleges in which the governing
body or managing Council would have no say. Further more
sub-section 63 (I) involved 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 Art. 31(2)
and (2A). To be effective the, section required the assent
of the President under sub-s. (3) and it was not obtained.
Therefore the saving in Art 31A (1)(b) was not
available.[746 A]
[The Court expressed no opinion regarding sub. ss. (1), (2),
(3) and (9) of s. 53 and sub.-ss. (2) and (4) of s. 56
vis-a-vis Art. 30. The court did not go into the question
of invalidity of the provisions under Art. 19(1) (f)]. [746
F]
Propositions established in the following cases referred to
and applied
State of Bombay v. Bombay Education Society. [1955] I S.C.R.
568;The State of Madras V. S. C. Dorairajan [1951] S.C.R.
525; Sidharajbhal v. State of Gujarati [1963] 3 S.C.R. 837;
Katra Education Society v. State of U.P. and Ors, [1966]
3.S.C.R. ’ 328; In re the,Kerala Education Bill [1959] S.C
R. 995; Gujarat University Ahmedabad v. Krishna Ranganath
Mudhotkar and others [1963] Supp. I S.C. R. 112; Rev.
Father ’W.’ Proost and Ors. v. State of Bihar, [1969] 2-
S.C.R. 73, referred to.
736
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 259 to
2600 of 1969 and 21 to 53, 155 to 190, 199, 200 to 203, 273
-and 324 of 1970.
Appeals from the judgment and order dated September 19, 1969
of the Kerala High Court in O.P. 1450 of 1969 etc.
Mohan Kumaramangalam, K. S. Paripooram, R. K. Garg, .S. C.
Agarwala and M R. K. Pillai, for the appellant (in C.As.
Nos. 2598 to 2600 of 1969 and 21 to 53 of 1970).
Mohan Kumaramangalam, K. S. Paripoornam and M. R. K. Pillai
for the respondent (in C.A. Nos. 155 to 190, 199, 200 to
203, 273 and 324 of 1970).
A. K. Sen, P. C. Chandi, Joseph Vithayathil, Bhuvanesh
Kumari, R. N. Banerjee, J. B. Dadachanji, O. C. Mathur- and
Ravinder Kumar, for the appellant (in, C.As. Nos. 200 to 202
of 1970), respondent no. 1 (C.A. Nos. 2598 to 2600 of 1969),
respondent no. 1 (in C.A. No. 21, 22, 26, 31, 32, 36, 37,
39, 43, 52, 156 to 158, 187, 160 to 164, 167, 168, 172, 173,
170, 165 to 181, 1839 186 and 189 of 1970).
Frank Anthony, P. C. Chandi, Joseph Vithayathil, E.
C.Agarwal, Bhuvanesh Kumari, R. N. Banerjee, J. B.
Dadachanji, ,O. C. Mathur and Ravinder Narain, for the
appellant (in C.A. No. 203 of 1970) and respondent no. 1 (in
C.A. Nos. 48 and 184 of 1970).
Frank Anthony, P. C. Chandi, A. T. M. Sampath, S. R. Agar-
wala and E. C. Agarwala, for respondent No. 1 (in C. A. Nos.
23 & 159 of 1970).
M. C. Setalvad, V. A. S. Muhammad, and A.S. Nambiar, for
the appellant (in C.A. No. 199 of 1970) and respondent No. 1
(in C.A. No. 174 and 185 of 1970).
M. C. Setalvad and A. Sreedharan Nambiar, for the appellant
-(in C.A. No. 273 of 1970).
A. Sreedharan Nambiar, for respondent No. 1 (in, C.A. No. 38
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-of 1970).
R. Gopalakrishnan, for the appellant (in C.A. No. 324 of
1970) and respondent no. I (in C.A. No. 33 of 1970).
M. K. Nambyar, N. A. Subramanian and P. K. Pillai, for the
appellant (in C.As. Nos. 155 to 190 and 199 of 1970) and the
respondent (in C.A. Nos. 2598 to 2600 of 1969 and 21 to 53,
200 to 203, 273 and 324 of 1970).
737
A. S. R. Chari, N. Sudhakaran and K. M. K. Nair, for the
intervener (in C.As. No. 199 to 203 of 1970).
The Judgment of the Court was delivered by
Hidayatullah, C.J. These appeals by certificates granted by
the High Court of Kerala under Arts. 132(1) and 13.3(1)(c)
of the Constitution are directed against a common judgment,
September 19, 1969, declaring certain provisions of the
Kerala University Act, 1969 (Act 9 of 1969) to be ultra
vires the Constitution of India while upholding the
remaining Act as valid. They were heard together. This
judgment will dispose of all of them-. ’The validity of the
Act was challenged in the High Court by diverse petitioners
in 36 petitions under Art 226 of the Constitution. Some
parts of the Act were declared ultra vires the Constitution
As a result there are cross appeals. 36 appeals have been
filed against the several petitioners by the State of
Kerala. Another 36 appeals have been filed by the
University of Kerala which made common cause with the
Government of Kerala. 7 appeals have been preferred by seven
original petitioners, who seek a declaration that some other
provisions of the Act, upheld by the High Court as valid,
are also void.
The Kerala University Act 1969 (which repealed and replaced
the Kerala University Act 1957 (Act 14 of 1957) was passed
to reorganise the University of Kerala with a view to
establishing a teaching, residential and affiliating
University for the southern districts of the State of
Kerala. Some of its provisions affected private colleges,
particularly those founded by minority communities in the
State. They ’were consequently challenged of various
grounds. The petitions were consolidated in the High Court
and were decided by the judgment and order under appeal.
Before we begin to discuss these appeals we may say a few
words about them. 33 petitioners belong to different
denominations of the Christian community; 8 are Superiors of
different Catholic Religious Congregations; 8 are Catholic
Bishops representing their dioceses; 3 are Vicars of
Catholic parishes; 5 are Boards of Associations constituted
by different Catholic denominations for establishing
colleges and other educational institutions and 3 are
Bishops of the Malankara Orthodox Church. 4 petitions have
been filed by the Metropolitan of the Marthoma Syrian Church
and 2 by the Madhya Kerala Diocese of the Church of South
India. The remaining 3 petitions are respectively by pri-
vate colleges founded and administered by Sri Sankara
College Association Kalady, Sree Narayana Trusts Ouilon and
the Nair Service Society Changan nacherry. The petitioners
in the 33 petitions specially invoke-the provisions of Art.
30 of the Constitution which protects the right of the
minorities to establish and adminis-
9SupCI(P)/71-3
738
ter educational institutions of their choice. All the 3 6
petitions invoke Arts. 19(1)(f), 31 and 14 of the
Constitution.
The impugned Act consists of 78 sections divided into 9
chapters. The main attack in the petitions is against
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Chapter VIII headed ’private colleges’ consisting of ss. 47
to 61 and some provisions of Chapter IX particularly s. 63.
The High Court has declared that sub-ss. (2) and (4) of s.
48, Sub-ss. (2) and (4) of s. 49, sub-ss. (1), (2), (3) and
(9) of s. 53, sub-ss. (2) and (4) of s. 56, s. 58 (except to
some extent) are offensive of Art. 19(1) in so far as
citizen petitioners are concerned and additionally, in so
far as the minority institutions are concerned, offensive to
Art. 30(1), and therefore void. The petitions were,
therefore, allowed except two petitions (O.t.S. No. 2339 and
2796 of 1969) filed by Sree Sankara College Association and
the Nair Service Society since the petitioners were
companies and were not entitled to the benefit of Art. 30(1)
not being minority institutions and not entitled to Art.
19(1)(f) not being citizens. Section 63 was, however, held
to offend Art. 31(2) and not saved by Art. 3 1 A(1)(b) and
this declaration was in favour of all the petitioners. It
was also declared void as offending Art. 30(1) in so far as
the minority institutions were concerned. The rest of the
Act was declared to be valid and the challenge to it was
’rejected. There was no order about costs.
The State of Kerala and the University challenge the judg-
ment in so far as it declares the provisions of the Act to
be void and the petitioners in the 7 counter appeals
challenge the judgment in so far as it has rejected the
attack on some other provisions. We shall deal first with
the contentions urged on behalf of the State of Kerala and
the University of Kerala and then deal with the contentions
of the majority institutions and the challenge to the sur-
viving portions of the impugned Act by the appealing
original petitioners.
in the matter of the minorities the main attack comes from
Art. 30(1) of the Constitution. This clause reads :
"30. Right of minorities to establish and
administer educational institutions.
(1) All minorities, whether based on religions
or language, shall have the right to establish
and administer educational institutions of
their choice.
It declares it to be a fundamental right of the minorities,
whether based on religion or language, to establish and
administer educational institutions of their choice. It is
conceded by the petitioners
739
representing minority communities before us (and indeed they
could not gainsay this in the face, of authorities of this
Court) that the State or the University to which these
institutions are affiliated may prescribe standards of
teaching and the scholastic efficiency expected from
colleges. They concede also that to a certain extent
conditions of employment of teachers, hygiene and physical
training of students can be regulated. ’. What they
contended is that here there is an attempt to interfere with
the administration of these institutions and this is an
invasion of the fundamental right. The minority communities
further claim protection for their property rights in
institutions under Arts. 31 and 19(1)(f) and the right to
practice any profession or to, carry on any occupation trade
or business guaranteed by sub-cl(g) of the latter ’article.
The majority community which is also the founder of private
colleges (of which three instances are before, us) do not
claim the right stemming from Art. 30(1),but they claim the
other rights mentioned above and further seek protections of
equality in law with the minority institutions and thus
freedom in the establishment and administration of their
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institutions.
The claim of the majority community institutions to equality
with minority communities in the matter of the establishment
and administration of their institutions leads to the
consideration whether the equality clause can at all give
protection, when the Constitution itself classifies the
’minority communities into a separate entity for special
protection which. is denied. to the majority community.
This is not a case of giving some’ benefits to minority
communities which in reason must ,also go to the majority
community institutions but a special kind of protection for
which the Constitution singles out the minority communities.
This question, however, does not fall within. out purview as
the State, at the hearing announced that it was not intended
to enforce the provisions of the -law relating, to
administration against the majority institutions only, if
they could. not be enforced against the minority
institutions. Therefore, we,, have’, to consider, the
disputed provisions primarily under Art. 30(1) and
secondarily under Arts. 31 and 19 where applicable.
Article 30(1) has been construed before by this Court.
Without referring to those cases it is sufficient to say
that the clause contemplates two rights which are separated
in point of time. The first right is the initial right to
establish institutions of the minority’s choice.
Establishment here means the bringing into being of an
institution and it must be, by a minority community. It
matters not if a single philanthropic individual with his
own means, founds the institution or the community at large
contributes-the funds. The position in law is the same and
the intention in either case must be to found an institution
for the benefit of a minority community by a member of that
community. It is equally irrelevant
740
that in addition to the minority community others from other
minority communities- or even from the majority community
can take advantage of these institutions. Such other
communities bring in income and they do not have to be
turned away to enjoy the protection.
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 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
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management, to decline to follow the general pattern. While
the management must be left to them, they may be compelled
to keep in step with others. These propositions have been
firmly established in the State of Bombay v. Bombay
Education Society(’), The State of Madras v. S. C.
Dorairajan (2 ), In re the Kerala Education Bill 1957 (3),
Sidharajbhai v. State of Gujarat (4), Katra Education
Society v. State of U.P. & Ors.(5), Gujarat university,
Ahmedabad v. Krishna Ranganath Mudholkar and Ors. (6) and
Rev. Father W. Proost & Ors. v. State of Bihar(7) In the
last case it was said that the right need not be enlarged
nor whittled down. The Constitution speaks of
administration and that must fairly be left to the minority
institutions and no more. Applying these principles we now
consider the provisions of the Act.
The Act as stated already consists of 78 sections. arranged
under 9 Chapters. Chapter VIII is headed ’Private Colleges’
and
(1) [1955] 1 S. C. R. 568.
(3) [1959] S. C. R. 995.
(5) [1966] 3 S.C.R. 128.
(7) [1969] 2 S.C.R. 73
(2) [1951] S.C.R. 525.
(4) [1963] 3 S. C. R. 837
(6) [1963] Supp 1 S. C. R. 112.
741
Chapter IX ’Miscellaneous’. Chapter I contains the short
title and commencement (s. 1) and definitions (s. 2). We
are concerned with some definitions in s. 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 Courtin its judgment has
carefully summarized 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
affiflated to the University. I ’Principal means the head
of a college. By ’teacher’ as used in the Act is meant a
Principal,Prof Assistant-Professor, Reader. ’Lecturer,
Instructor or such other person imparting instruction or
supervising 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 hasbeen approved by the University.There is much
overlapbetween ’college, -teacher’ and ’recognised teacher’
but thereis no antinomical contusion which might have
otherwise resulted. These definitions by themselves are not
questionable but in thecontext 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 embracesss. 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 goveming body for
private Colleges not under corporate management and (b) with
managing council for private colleges under corporate
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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 but
one institution and in the other more than one. Both
consist of 7 sub-sections. Under these provisions the
educational aeency or the corporate management has I to
establish a governing body or a managine council
respectively. The sections give the compositions of the two
bodies. The governing body set up by the educational agency
is to consist. of I I members and the
742
managing council of 21, member The 1 1 members of the govem-
ing 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 com-
position 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.
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 success in and a common
seal. The manager of the college or colleges, as the case
may be is the, Chairman in either case [sub-s. (3)] Sub-
section (4) then says that the member shall hold office for
a period of 4 years from the date of its constitution.
Sub-section(5) then says as follows;
"It shall be the duty of the Government
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 underlined words are to be omitted and the sub-
section read with the words in brackets.)
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.
These sections were partly declared ultra vires of Art.
30(1) :by the High Court as they took away from the founders
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the right
743
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.
In attempting to save these provisions Mr. Mohan Kumaraman-
galam 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 ss. 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-ss. (2), (4) and (6) of ss. 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, Reguula-
tions, Rules. Bye-laws and Orders can also be examined in
the light of Art. 30(1) but the blanket Dower 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.
Section 53-, sub-ss. (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-s. (4) fakes
away from the educational agency or the corporate management
the right to select the teachers. The insistence on merit
in sub-s.(4) or on seniorty cum fitness in sub (7)does not
save the situation. The power is exercised not by
744
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-s. (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 tills’ is the power of Vice-
Chancellor and the Syndicate in sub-ss. (2) and (4) of s.
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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 s. 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 inter-
745
ference. When this is coupled with the choice of nominated
members left to Government and the University by sub-s.
(1)(d) of ss. 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.
To crown all there is the provision of s.
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
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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 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 college temporarily
for a period not exceeding two years;
Provided that in cases where action is taken
under this sub-section otherwise than on a
report from the University, it shall be
consulted before taking such action.
The remaining provisions of this section lay down an elabo-
rate procedure for management in which even the governing
body or the managing council have no say. Sub-section 63(1)
involves
746
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 Art. 31(2) and (2A). To be effective the
section required the assert of the President under sub-s.
(3) and it ’was not obtained. Therefore the saving in Art.
31A(1)(b) is not available.
Mr. Mohan Kumarmangalam brought to our notice passages from
the Report of the Education Commission in which the Com-
mission had made suggestions regarding the conditions is 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.
The-result of the above analysis of the provisions which
have been successfully challenged discloses that High Court
was right in its appreciation of the true position in the
light of the Constitution. We agree with the High Court
that sub-ss. (2) and (4) of ss. 48 and 49 are ultra vires
Art. 30(1). Indeed we think that sub-ss. (6) of these two
sections are also ultra vires. They offend more than the
other two of which they are a part and parcel. We also
agree that sub-ss. (1), (2), (3) and (9) of s. 53, sub-ss.
(2) and (4) of s. 56 are ultra vires as they fail with ss.
48 and 49. We express no opinion regarding these sub-
sections vis-a-vis Art. 30(1). We also agree that Section
58 (in so far as it removes disqualification which the
founders may not like to agree to) and Sec. 63 are ultra
vires Articles 30(1) in respect of the minority
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institutions.
The High Court has held that the provisions (Except s. 63)
are also offensive to Art. 19(1)(f) in so far as the
petitioners are citizens of India both in respect of
majority as well as minority institutions. This was at
first debated at least in so far as majority institutions
were concerned. The majority institutions invoked Art. 14
and complained of discrimination. However, at a later stage
of proceedings Mr. Mohan Kumaramangalam stated that he had
instructions to say that any provision held inapplicable to
minority institutions would not be enforced against the
majority institutions also. Hence it relives us of file
task of considering the matter under Art. 19(1)(f) not only
in respect of minority institutions
747
but in respect of majority institutions also. The
provisions of s. 63 affect both kinds of institutions alike
and must be declared ultra vires in respect of both.
The result is that the Judgment under appeal is upheld. The
appeals of the State Government of Kerala and of the
University are dismissed with costs. One set of hearing
fees. For the reasons given by the High Court we do not
accept the contentions of the seven appellants who have
challenged some of the other provisions of the Act except
ss. 48 (6) and 49(6) and do not consider it necessary to
repeat what is said by the High Court. These appeals are
dismissed except as to those sections but without costs.
R.K.P.S. Appeals dismissed.
748