Full Judgment Text
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PETITIONER:
GOVERNING BODY, ST. ANTHONY’S COLLEGE,SHILLONG & ORS.
Vs.
RESPONDENT:
REV. FR. PAUL PETTA OF SHILLONG EASTKHASl HILLS.
DATE OF JUDGMENT18/08/1988
BENCH:
RAY, B.C. (J)
BENCH:
RAY, B.C. (J)
THAKKAR, M.P. (J)
CITATION:
1988 AIR 2005 1988 SCR Supl. (2) 507
1988 SCC Supl. 676 JT 1988 (3) 531
1988 SCALE (2)526
ACT:
St. Anthony’s College-Whether Salesian
Provincial/President of the Governing Body of the College
could order transfer of the Principal of the College or
whether the governing Body could pass such an order of
transfer-Whether an opportunity of hearing was to be given
to the Principal to show cause against the proposed
transfer.
HEADNOTE:
The respondent had been appointed Principal of St.
Anthony’s College by Salesian Provincial and his appointment
had been approved by the Director of Public Instruction
(D.P.I.) on the recommendation of the governing body of the
College. Due to differences between the Principal and the
Church authorities, and particularly, the appellants Nos 2,
3 and 4, i.e. the President and the members of the governing
body of the College, the appellant No. 2, the President of
the governing body and the Salesian Provincial intimated to
the respondent of his transfer from the post of Principal of
the College. The respondent contended that the appellant No.
2 had no authority to appoint or dismiss or transfer the
Principal, as the Principal of the College belonging to
minorities was to be selected by the governing body and to
be approved by the D.P.I. in accordance with the government
instructions contained in its Memo dated December 7, 1979.
But the Salesian Provincial proposed another person as
Principal, to which the governing body agreed and his
appointment was approved by the D.P.I. The respondent filed
a writ petition in the High Court, contending that the
Salesian Provincial had no power to transfer him, as he had
been appointed Principal by the governing body of the
College with the approval of the D.P.I., and so the
Governing Body with the approval1 of the D.P.I. could
transfer him under the statutory rules. and that the order
of transfer, having been passed without giving him any
opportunity to show cause, was arbitrary, illegal and mala
fide and violative of the principle of natural justice. The
High Court held that there was no reason why the
respondent’s removal from the post of Principal should not
PG NO 507
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PG NO 508
have been by the governing Body and subject to the approval
of the D.P.I., and directed inter alia that the impugned
order of transfer be kept in abeyance and that the governing
body would give the respondent an opportunity to show cause
why he should not be transferred as stated in the impugned
transfer order, and decide the matter of transfer after
hearing him. Aggrieved by the order of the High Court, the
governing body and others moved this Court by special leave.
It was contended by the appellants inter alia that the
respondent could not have any grievance against the order of
transfer as he had no statutory right to remain as Principal
and that he, being ordained as priest according to the
Articles of the constitution of the Society of St. Francis
de Sales, the Salesian Provincial could transfer him to
serve in any of the institutions of the Society as his
service was transferable, and he could not question the
transfer.
Dismissing the appeal, the Court,
HElD: The St. Anthony’s College was a minority
institution within the meaning of Article 30 of the
Constitution, and the instructions contained in the
Government Memo dated 7th December, 1979, laying down the
procedure of appointment of Principal, vice-Principal, etc,
in religious minority Colleges in the State would apply to
this Institution. [514E-F]
The impugned order of transfer was passed without asking
the respondent to show cause against the transfer and giving
him an opportunity of hearing. The impugned order purported
to transfer the respondent from the post of Principal of the
College to the post of Teacher in a school. This order of
transfer prejudicially affected the status of the
respondent. [5I5E-F]
The main question for consideration was whether the
Salesian Provincial, appellant No. 2 was competent to
transfer the respondent who had been appointed by the
governing body of the college and approved by the D.P.I. as
per the Government instructions applicable to a minority
college. [515G]
According to the Government instructions aforesaid, the
Principal whose appointment had been approved by the D.P.I.,
could work as Principal in the minority college till the age
of superannuation as determined by the Government. The
impugned order of transfer amounted to removal of the
respondent from the post of Principal. The principles of
natural justice and fair play mandate that in administrative
actions the audi alteram partem rule is applicable; the
person affected by the order had to be given an opportunity
PG NO 509
of hearing against the purported order apart from the
question whether the Assam Aided College Management Rules
and Assam Aided College Employees, Rules are applicable to
minority institutions. [516B-D]
The appellants contended that Salesian Provincial,
appellant No. 2, was the appointing authority of the
respondent and as such he had the right to make the impugned
order of transfer though there was no express provision
conferring such a power. [5l6F]
The question was whether the Salesian Provincial was the
appointing authority of the respondent, or the governing
body of the College appointed the respondent and recommended
his appointment for approval to the D.P.I. The D.P.I. had
approved the appointment of the respondent pursuant to the
recommendation of the governing body. So this question had
to be gone into and determined by the governing body, as had
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been directed by the order of the High Court. In so far as
the respondent was transferred in his capacity as a priest
from one division of the religious order to another, the
matter pertained to the internal management of the religious
order and it was not justiciable, but in so far as the order
of transfer had been made, transferring the respondent from
the post of Principal of the College to the post of Teacher
of a school in another State, the respondent could complain
against it. Since the respondent had not been given an
opportunity of hearing against the purported transfer which
seriously affected his status, judgment of the High Court
which directed the governing body to give the respondent an
opportunity to show cause against the impugned order of
transfer and to give him a hearing and decide the transfer
matter in accordance with law, could not be faulted. [516G-
H; 517A-D]
JUDGMENT:
CIVlL APPELLATE JURISDICTION: CIVIL Appeal No. 3717 of
1986.
From the Judgment and Order dated 12.9.1986 of the
Gauhati High Court in Civil Rule No. 428 of 1986.
Ms. Lira Goswami and D.N. Mishra for the Appellant.
Shankar Ghosh, S.K. Hom Choudhary and S.K. Nandy for the
Respondent.
The Judgment of the Court was delivered by
PG NO 510
RAY, J. The respondent, Rev. Fr. Paul Petta was
appointed as Principal of St. Anthony’s’ College by Salesian
Provincial on April 16, 1982 and on the recommendation of
the Governing Body of the College, the Director of Public
Instruction, Meghalaya, Shillong accorded approval to his
appointment with effect from 1st May, 1982. St. Anthony’s
College was established by Salesian Congregation, a Catholic
religious Society of imparting general education. It is a
religious minority institution under Article 30 of the
Constitution of India and it is receiving Government grants-
in-aid since the scheme of deficit grant-in-aid colleges was
intoduce by the government of Assam in 1959. After creation
of Meghalaya it has been grants-in-aid under the same system
as adopted by th Government of Meghalaya. By Memo No. EDN.
75/74/280 dated 4th November, 1976 the Government of
Meghalaya, Education Department conveyed to the Director of
Public Instucion, the sanction of the Government of
Meghalaya to the implementation of the Instruction. scales
of pay, as indicated thereunder to all the deficit college
teachers including the Principals, Professors in the State
with effect from 1st April, 1975. By Memo No. EDN> 75/74/51
dated December 7, 1979 the Government of Meghalaya laid down
the procedure for appointment of Principals, Vice-Principals
and Lectuers and other staff in Religious Minority Colleges
in the State with refernce to Article 30 of the
Constitution. Paragraph 1 which is relevant is quoted below:
"In the matter of appointment of Principals and Vice-
Principals in the colleges belonging to th religious
minorities, the governing Body of the College concerned
shall select a Principal and Vice-Principal from a panel of
names submitted by th sponsoring Church Organisation
concerned subjects to th condition that the educational
qualifications of the persons selected shall be in
accordance with the conditions laid down in the Government’s
letter No. EDN/75/74/280 dated 4.11.76. Other conditions in
respect of age of super-annuation etc. shall be as
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prescribed by the State Government from time to time."
The respondent after his appointment had been working as
Principal of the College. While working as such, differences
arose between him and the church authorities more
particularly the appellant Nos. 2,3 and 4 i.e. the President
and the members of the Government Body of the College
regarding certain matters relating to the management of the
college.
PG NO 511
On December 14, 1985, Fr. John Kalapura, SDB, the
Appellant No. 2, President, Governing Body of St. Anthony’s
College and Salesian Provincial sent a letter to the
respondent intimating him of his transfer from the power of
Principal of the College. The letter states :
"After due consultation with the Provincial Council I am
transferring you from the post of Principal of St. Anthony’s
College, Shillong and am appointing Rev. Fr. J. Kenny as
Acting Principal of the same college with effect from 2 f.
12. 85.
Kindly hand over the charge to Rev. Fr. J. Kenny by 21st
Dec. 1985."
On receiving the said letter the respondent on that very
day sent a letter to the appellant No. 2 stating that he had
no authority to appoint or dismiss or transfer the Principal
of the College as the Principal and Vice-Principal in the
College belonging to the minorities are to be selected by
the Governing Body and to be approved by the Director of
Public Institution in accordance with Government
instructions mentioned in its letter dated December 7, 1979.
The respondent sent a letter to the Director of Public
Instruction (in short D.P.l.) intimating that he had been
removed from the Principalship of St. Anthony’s College by
the appellant No. 2, the Salesian Provincial of Cauhati
Province and Rev. Fr. Kenny had been appointed as the Acting
Principal and requested him to intimate if the Government
has given any power to Sponsoring Authority for St.
Anthony’s College in contravention of the Memo dated
December 7, 1976. The D.P.I. has informed the respondent by
his letter dated 23rd December, L985 that "this office is
not aware of any such power given to the Church Authority
concerned". The Salesian Provincial by its letter dated
March 7, 1986, proposed the name of Fr. Stiphen Mavely as
Principal of the said College. The Governing Body at its
meeting held on 17th March, 1986 resolved that Fr. Stephen
Mavely be appointed Principal-cum-Secretary of St. Anthony’s
College with effect from March 10, 1986. The said
appointment was approved by D.P.l., Meghalaya with effect
from 10th March, 1986.
The respondent filed a suit being T.S. No. l (T) of L986
in the Court of the Assistant District Commissioner with a
prayer for temporary injunction. An interim order of
maintaining status quo was obtained. But as in the meantime
the office of the Principal was and taken possession of, the
suit was withdrawn and a writ petition being Civil Rule No.
PG NO 512
428 of 1986 was filed challenging that Salesian Provincial
has no power to transfer the respondent, viz. the Principal
of the College to Don Bosco Technical School, Maligaon,
Gauhati. The respondent was appointed as Principal of the
said College by the Governing Body of the College with the
approval of D.P.I. and so the Governing Body with the
approval of D.P.I. can transfer him under the statutory
rules. It was also contended that the respondent acquired a
satutory right to hold the post of Principal till his
attaining the age of super-annuation. The purported order of
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transfer is illegal and without jurisdiction It has also
been contended that the purported order of transfer
tantamounts to removal of the respondent from the post of
Principal and the said order being issued without recording
any reason and without giving any opportunity to show cause
to him is arbitrary, illegal and mala fide. The purported
order of transfer is thus violative of principles of natural
justice and as such it is liable to be quashed.
An affidavit in opposition was filed on behalf of
appellant Nos. 2, 3 and 4 denying that the administration
and management of the said college including the
appointment, discipline etc. are governed by the Assam Aided
College Management Rules. 1965, Assam Aided College
Employees’ Rules, 1960 for appointment of Principals and
Vice-Principals and conditions of grants-in-aid aided
colleges in 1956. It has been stated that St. Anthony’s
College is a minority institution and the Salesians
Provincial is the only Competent Authority to make any
appointment to the rank of Principal in the said College and
no advertisement before making any appointment is necessary.
This relaxation of restriction in regard to Minority College
availing of deficit grants-in-aid has been made by Memo
dated December 7, 1979. The petitioner is a member of the
Salesian of Don Bosco and his appointment to the said post
of Principal could never have been permanent. As a priest he
is transferable from time to time different institutions of
the Society. The Constitution of the Salesians of Don Bosco
provides that such transfer is binding on the petitioner as
a priest and a member of the Salesian Don Bosco. The
transfer of the petitioner and other priests are matters of
normal routine as members of Salesian Society. It has also
been stated that any money drawn by a priest has to be given
to the order of Salesian of Don bosco and no priest
maintains any private fund. It is the responsibility of the
Salesian Society to look after the needs and requirements of
any member of the community and is responsible for the
upkeep of such members. The petitioner has taken a vow of
obedience when he was ordained as a priest and was admitted
as a member of Don bosco. The petition is liable to be
dismissed as no statutory right of the petitioner has been
violated.
PG NO 513
After hearing the learned counsels for the parties as
well as considering the facts and circumstances the High
Court held that the Governing Body of the College was not a
Statutory Body. The Court further held that:
"To our mind there is violation of the principles of
natural justice in dislodging the petitioner from his post
of Principal without hearing him."
The High Court further held that:
"So long as the members of the Salesian Body obeyed the
rules and regulation of the Body, accepted transfers in good
spirit this Court would have nothing to do. But if the
petitioner having been appointed as Principal feels
aggrieved that his transfer is not in accordance with the
rules of the body and comes to the Court, this Court has to
look and listen to him. By appointing the petitioner as
Principal of the College, the organisation has exposed the
petitioner to the judicial gaze of the Court and if the
petitioner makes grievances, it is for the Court to redress
it."
"..... The petitioner was appointed by the Governing Body
and that was subject to the approval of the D.P.I. There is
no reason as to why his removal from the post of the
Principal should not have been made by the Governing Body
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and subject to the approval of the D.P.l. However, the
College Governing Body has got no control over the School
whereto the petitioner has been transferred."
The High Court therefore made the rule absolute to the
extent indicated in the directions quoted below:
"We accordingly keep the impugned order in abeyance
forthwith and direct the Governing Body of the College to
give the petitioner an opportunity to show cause as to why
he should not be transferred as stated in the impugned
transfer order dated 14.12..1985 (Annexure-10) and after
hearing the petitioner on the cause shown, shall decide the
matter of transfer within one month from receipt of this
order, and act according to the decision so taken and in
PG NO 514
conformity with the Government instructions (Annexure-8). If
the impugned order is revoked, the petitioner shall
automatically be reinstated in his post of principal of the
College, and shall be given all the emoluments and benefits
thereof. The Respondent No. 11 shall correspondingly cease
to be Principal of the College, but shall not be disentitled
to the pay and allowances for the services already rendered
by him to the College prior to this date. In case the
Governing Body decides to give effect to the impugned
transfer order it shall revive and the petitioner shall be
free to pursue his remedies under the law. In the interest
of fair hearing and reasonable opportunity, we direct the
Governing Body to make available to the petitioner all the
records which he may need for the purpose of his defence;
the petitioner shall, not, however function as Principal
during the period of one month pending decision. The
decision shall be taken within a month from today."
Aggrieved by the said order made in Civil Rule No. 428
of 1986, a special leave petition has been filed by the
Governing Body and some of the members of the Governing Body
of the College. After hearing the learned counsel for the
parties special leave was granted.
The St. Anthony’s College is admittedly a minority
institution within the meaning of Article 30 of the
Constitution and as such the Salesian Don Bosco Society is
competent to administer the said college. This College is
getting deficit grants-in-aid from the Government of
Meghalaya and the instructions contained in Memo No. EDN.
75/74/S1 issued by the Government of Meghalaya on 7th
December, 1979 laying down the procedure of appointment of
Principal, Vice-Principal, Lecturers and other staff in
religious minority colleges in the State will apply to this
Institution. The respondent who was a lecturer of St.
Anthony’s College was sponsored by Salesian Provincial, the
appellant No. 2 for appointment of Principal of the College
and the Governing Body of the College recommended the same
to the Director of Public Instruction, Meghalaya for
approval as required under the above instructions. The
D.P.I. duly approved the appointment of the respondent, Rev.
Fr. Paul Petta as Principal of the College with effect from
May 1, 1982. The appellant worked as Principal of St.
Anthony’s College since the date of his appointment till the
impugned order of transfer made by the appellant No. 2 Rev.
Fr. John Kalapura as Salesian-Provincial from the post of
Principal of the said College to the post of Teacher, Don
Bosco Technical School, Maligaon, Gauhati on December 21,
PG NO 515
1985 without asking him to show cause against the order of
transfer and without giving him any opportunity of hearing.
It has been urged that the respondent being ordained as a
priest of the society has taken vow of servie to any post
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where he will be asked by the Society to work. As a priest
he was sponsored by the Church Authority for appointment as
Principal and the Governing Body of the College also
recommended his appointment as made by Salesian Provincial
for approval. The petitioner cannot have any grievance
against the order of transfer as he has no statutory right
to remain as Principal of the College. It has also been
contended by refering to certain Articles of Constitution of
the Society of St. Francis de Sales that the respondent
being ordained as priest of the Society took the vow of
service and the Salesian Provincial can transfer him to
serve in any of institutions of the Society as his service
is transferable. It has also been submitted that as a priest
the respondent cannot keep any money with him and whatever
salary he gets will have to be given to the Society which
will look after him and meet his needs. The respondent
question the order of transfer. The respondent so long as he
to the order of transfer and complies with it, the court has
nothing to do. But if he does not comply with it and
questions it before the Court, the Court will have to
consider his grievances and to decide if the impugned order
of transfer is legal and valid.
The respondent was appointed as Principal of St.
Anthony’s College by the Governing Body of the College and
the same was duly approved by the Director of Public
Instruction, Meghalaya in accordance with the procedure laid
down in the Government’s letter dated December 7, 1979. The
impugned order of transfer purports to transfer the
respondent from the post of Principal of the College to the
post Teacher in the Don Bosco Technical School at Maligaon
within the State of Gauhati over which the Governing Body of
St. Anthony College has no control. This order of transfer
has prejudicially affected the status of the respondent as
Principal of St. Anthony’s College. The main question that
arises for consideration in this appeal is whether the
Salesian Provincial, the appellant No. 2, is competent to
transfer the petitioner who has been appointed as Principal
of the College by the Governing Body of the College and
approved by the D.P.I. as per Government instructions
applicable to minority college. There is no dispute that the
respondent is a member of Salesian Don Bosco Society as a
priest. It is also not in dispute that as a priest of the
society h was sponsored by the Church Authorities for the
post of Principal of th College and the Governing Body of
the College recommended to the D.P.I. for approval of his
appointment as Principal of the College. In such
PG NO 516
circumstances it is required to be considered whether the
Salesian Provincial has power to transfer him from the post
of Principal of the College to the post of Teacher in a
Technical School of the Society. It is apparent from the
aforesaid Government instructions that the Principal whose
appointment has been duly approved by the D.P.I. can work as
Principal in the minority college till he attains the age of
super-annuation as determined by the Government. The
impugned order of transfer in substance amounts to removal
of the respondent from the post of Principal of the College.
It has been held by the High Court that the respondent has
been condemned unheard as he was not given any opportunity
to show cause for the purported order of transfer whih
seriously prejudiced him. The principles of natural justice
and fair play mandate that in administrative actions the
audi alterum partem rule is applicable and the person
affected by the order to be given an opportunity of hearing
against the purported order apart from the question whether
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the Assam Aided College Management Rules, l965 and Assam
Aided College Employees’ Rules. 1965 are applicable to
minority institutions. We do not consider it necessary for
the purposes of this appeal to make any observations on the
question whether the Assam Aided College Management Rules,
1965 and Assam Aided College Employees’ Rules, 1960 are
applicable to minority institutions or to consider the
question whether the rules concerning the terms and
conditions of appointment as well as prescribing
qualification for appointment the post of lecturers and
principals as well as prescribing condition for service are
regulatory in nature and they do not contravene the
fundamental right guaranteed under Article 31 of the
Constitution to the minority institutions at has been
observed in the case of Frank Anthony Public School
Employees Association v. Union of India & Ors., [1987] I SCR
238. It has been contended on behalf of the learned counsel
for the appellants that the appellant No. 2, Salesian
Provincial is the appointing authority of the respondent and
as such he has the right to make the impugned order of
transfer though there is nc, express provision conferring
such power. The case of Kutoor Vengayil Rayarappan Nayanar
v. Kutoor Vengayil Valia Madhavi Amma and Ors., AIR 1950
(Federal Court) 140 has been cited at the bar for the
proposition that the power to terminate flows naturally and
as a necessary sequence from the power to create. This
proposition is a well established proposition but the
question is whether the Salesian Provincial is the
appointing authority of the respondent or the Governing
8body of the said College appointed the respondent and
recommended his appointment for approval to the D.P.I. As
stated earlier D.P.I. pursuant to the recommendation of the
Governing Body approved the appointment of the respondent as
PG NO 517
Principal of the said College. So this question has to be
gone into and determined by the Governing Body as has been
directed by the order of the High Court. It has been
contended that the impugned order of transfer has seriously
affected the status of the respondent as Principal of the
College and this has been made by the appellant No. 2,
Salesian Provincial without giving him any opportunity of
hearing. Now in so far as the Respondent is transferred in
his capacity as priest from one division of the religious
order to another the matter pertains to the internal
management of the religious order and it is not justiciable.
However, in so far as the order of transfer has been made by
the Governing Body of the St. Anthony’s College transferring
the respondent from the post of Principal of the College to
the post of Teacher of Don Bosco Technical School which is
in another State the respondent can complain against it.
Since the respondent has not been given any opportunity of
hearing against the purported order of transfer outside the
State which seriously affected his status, the High Court,
in the facts and circumstances of the case has directed the
Governing Body of the College to give the respondent an
opportunity to show cause against the impugned order of
transfer dated 14. 13. 1985 and to give him a hearing and
decide the transfer matter in accordance with law. The
judgment and order passed by the High Court in the
circumstances of the case cannot be faulted.
We therefore, uphold the order passed by the High Court
and the appeal is dismissed with costs quantified at Ks.
5,000.
S.L. Appeal dismissed.
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