Full Judgment Text
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PETITIONER:
GANDHI FAIZEAM COLLEGE SHAHAJAHANPUR
Vs.
RESPONDENT:
UNIVERSITY OF AGRA AND ANOTHER
DATE OF JUDGMENT03/03/1975
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
MATHEW, KUTTYIL KURIEN
GUPTA, A.C.
CITATION:
1975 AIR 1821 1975 SCC (2) 283
CITATOR INFO :
R 1980 SC1042 (2,62,81,99)
ACT:
Staute 14, A of the Agra University--If violative of Art.
30, Constitution of India.
HEADNOTE:
The appellant is a minority College, affiliated to he
respondent-University. In August 1964, the College
management applied to the respondent for permission to start
teaching in certain courses of study. The respondent
insisted, that as a condition of recognition of the
additional subjects, the Managing Committee must be re-
constituted in conformity with statute 14-A by including the
Principal of the College and the senior most member of the
staff in it. The, appellant filed a writ petition in the,
High Court challenging Statute 14-A a,,, violative of Art.
30, but the High Court dismissed the petition.
(Per majority, V.R. Krishna Iyer and A.C. Gupta, JJ.)
The inclusion of the Principal and the senior member of the
staff on the Managing Committee, improves the administration
and does not inhibit its autonomy, and the Statute is
therefore good and valid. [833A]
(1) Abridgement of the right under Art. 30 is as obnoxious
as its annihilation, but the right can be regulated in a
benign manner which neither abridges nor exaggerates
autonomy but promotes better performance. To regulate is
not to restrict, but to facilitate the effective exercise of
the very right regulated. [820B-C; 824D]
(2) The Principal is an invaluable insider-the Management’s
own choice and not an outsider. 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 institutions to achieve a happy
marriage between individuality and excellence. An activist
Principal is an asset in discharging the duties of the
Managing, Committee which are inextricably inter-laced with
academic functions. The senior most teacher is a seasoned
representative of the teachers and is also chosen by the
management itself. His role, though less striking and moire
unobstrusive, is also a useful input into managerial skills.
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[8251-H]
(3) Moreover, the Managing Committee is subject to the
hierarchiral control ofthe Governing Body and General
Council. [825H]
(4) To draw a distinction between creating a managing body,
and regulating the manner of its functioning to obviate
maladministration, and hold that-the former is beyond the
pale of legislative prescription while the latter is
permiSSible as a preservative, is broadly sound; but, as a
rigid logical formula, it breaks down. For example, if the
law says that a person convicted of breach of trust or that
,in undischarged insolvent would be disqualified to be the
treasurer, it affects the structure of the governing body,
but it is indubitably a protection against likely
maladministration. [823E-H]
(5) In the D.A.V. College case (1971) Supp. S.C.R. 688 and
Stat of Kerala v. Very Rev. Mother, Provincial (1971) 1
S.C.R. 734 some provisions relating to the principal of the
institution were struck down, but the real reason for
striking them down was that those provisions and others
deprived the minority of its right to manage its own
institutions. [83ID-832B]
811
Kerala Education Bill Case (1959) S.C.R. 995; St. Xavier’s
College case, (1975) 1. SCR 173; Rev. Fr. W. Proost case
(1969) 2 S.C.R. 73 and Rt. Rev. Bishop Patro’s case (1970)
1 S.C.R. 172, referred to.
(Per K. K. Mathew, I dissenting
The Whole temper and tone of a college do depend upon the
principal and the teachers, but that does not mean that they
should be members of the governing council of a college.
[815F-G]
The matter is concluded by the decision of this Court in
Ahmedabad St. Xavier’s College Society V. State of Gujarat
(1975) 1 S.C.R. 173. This Court held by a majority that s.
33A(1) (a) of the Gujarat University Act, 1949, was
violative of Art. 30(1) because, that provision required the
inclusion, in the: governing body of the College, of persons
whom the religious minority did not want to include. When
the article says that a religious or linguistic minority has
the right to administer educational institutions of its
choice, it means that the right to carry on the
administration of the institution must be left to the
managing body consisting of Persons in whom the religious or
linguistic minority has faith and confidence. The minority
community has the exclusive right to vest the administration
of the College in a body of its own choice and any
compulsion from an outside authority to include any other
person in that body is an abridgement of its fundamental
right to administer the educational institution. The,
determination of the composition of the, body to educational
institution established by a religious minority must
minority as that is the core of the right to administer,
though prevent maladministration by that body are
permissible. But,such regulations can only relate to the
manner of administration after the to administer has come
into being. [812D; 815B-D]
State of Kerala v. Mother Provincial [1971] 1 S.C.R. 734; W.
Proost v. Bihar [1969] 2 SCR 73 and Rev. Bishop S. K. Patro
v. Bihar [1969] 1 SCR 863, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1611 of
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1969.
Appeal by special leave from the Judgment and Order dated
the 25th July, 1967 of the Allahabad High Court in Special
Appeal No. 165 of 1967.
Frank Anthony, K. L. Hathi and P. C. Kapur, for the
appellant.
Santosh Chatterjee and G. S. Chatterjee, for the
respondents.
The Judgment of the Court was delivered by Krishna lyer, J.
K. K., Mathew, J. gave a dissenting opinion.
MATHEW, J. The question is whether Statute 14A framed by the
University of Agra abridges the fundamental right guaranteed
under Article 30(1) of the Constitution of the Muslim
community of Saharanpur, a religious minority, to administer
the Gandhi Faizeam College,. Saharanpur, established by it.
In August, 1964, an application was made on behalf of the
college management to the University for permission to start
teaching in courses of study including Sociology, Sanskrit,
Arabic, Military Studies, Drawing and Painting. The
University insisted that as condition for recognition of
these additional subjects as courses of study, the managing
committee of the college must be reconstituted in conformity
with
812
Statute 14A by including the Principal and the senior-most
member of the staff in it. Statute 14A provides :
"14-A. Each college, already affiliated or
when affiliated, which is not maintained
exclusively by Government must be under the
Management of a regular constituted Governing
Body (which term includes Managing Committee)
on which the staff of the college shall be
represented by the Principal of the College
and at least one representative of the
teachers of the college to be appointed by
rotation in order of seniority determined by
length of service in the college, who shall
hold office for one academic year."
In the writ petition filed before the High Court, the
appellant contended that Statute 14A abridged its
fundamental right under Article 30(1). But the High Court
negatived the contention holding that even if Statute 14A is
implemented by the religious minority, the right of the
minority to administer the educational institution would not
be taken away or destroyed and dismissed the writ petition.
I should have thought that the matter was concluded by the
decision of this Court in Ahmedabad St. Xavier’s College
Society v. State of Gujarat(1). Section 33A(1) (a) of the
Gujarat University Act, 1949, which fell for consideration
in that case, among other matters, read
"33A(1) Every college (other than a Government
college or a college maintained by the
Government) affiliated before the commencement
of the Gujarat University (Amendment) Act,.
1972 (hereinafter in this section referred to
as ’such commencement’)-
(a)shall be under the management of a
governing body which shall include amongst its
members the Principal of the College, a
representative of the University nominated by
the Vice Chancellor, and three representatives
of the teachers of the college and at least
one representative each of the members of the
non-teaching staff and the students of the
college, to be elected respectively from
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amongst such teachers, members of the non
teaching staff and students."
This provision was challenged in that case as violating the
fundamental right under Article 30(1) of the minority
community in question there. This Court held by a majority
that the provision was bad as it offended the fundamental
right of the religious minority under Article 30(1) to
administer its educational institution. The reason was that
the provision required the inclusion, in the governing body
of the college, of persons whom the religious minority did
not want to include. When Article 30(1) speaks that a
religious or linguistic minority has the right to administer
educational institutions of its choice, it means that the
fight to carry on the administration of the institution must
be left to the managing body consisting of persons in whom
the religious or linguistic minority has faith and
confidence.
(1) [S.C.C. 717]
813
The learned Chief Justice, speaking for himself and Palekar,
J., after referring to the provisions of s. 33A(1) (a) said
in that case that the right to administer is the right to
conduct and manage the affairs of the institution and that
this right is exercised "through a body of persons in whom
the founders of the institution have faith and confidence,
and who have full autonomy in that sphere". He further said
that the right to administer is subject to permissible
regulatory measures and that permissible regulatory measures
are those which do not restrict the right of administration
but facilitate it and ensure better and more effective
exercise of the right for the benefit of the institution and
through the instrumentality of the management of the
institution and without displacing the management. He was
of the view that if the administration has to be improved,
it should be done through the agency or the instrumentality
of the existing management and not by displacing it. The
learned Chief Justice further observed that autonomy in
administration means right to administer effectively and to
manage and conduct the affairs of the institutions, that the
right of administration means day to day administration and
that the choice in the personnel of management is a part of
the administration. He concluded by saying :
"The provisions contained in Section 33A(1)
(a) of the Act have the effect of displacing
the management and entrusting it to a
different agency. The autonomy in adminis-
tration is lost. New elements in the shape of
representatives of different types are brought
in. The calm waters of an institution will
not only be disturbed but also mixed. These
provisions in Section 33A(1) (a) cannot
therefore apply to minority institutions."
Jaganmohan Reddy. J. speaking for himself and Alagiriswami,
J. agreed with the view expressed by the learned Chief
Justice on the question of the validity of s. 33A(1) (a) in
its application to the minority.
Khanna, J. in his concurring judgment said that the argument
that a law or regulation could not be deemed unreasonable
unless it was totally destructive of the right of the
minority to administer educational institutions was
fallacious and was negatived by this Court by its previous
decisions and that a law which
".....interferes with the minorities choice of a
governing body or management council would be violative of
the right guaranteed by Article 30(1). This view has been
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consistently taken by this Court in the cases of Rt. Rev.
S. K. Patro, Mother Provincial and D. A. V. College
(affiliated to the Guru Nanak University) (supra).
" Section 33-A which provides for a new governing body for
the management of the college and also for selection
committees as well as the constitution thereof would conse-
quently have to be quashed so far as the minority
educational institutions are concerned because of the
contravention of Article 30(1)."
814
On behalf of Chandrachud, J. and myself, I said
"The requirement that the college should have
a governing body which shall include persons
other than those who are members of the
governing body of the Society of Jesus would
take away the management of the college from
the governing body constituted by the Society
of Jesus and vest it in a different body. The
right to administer the educational
institution established by a religious
minority is vested in it. It is in the
governing body of the society of Jesus that
the religious minority which established the
college has vested the right to administer the
institution and that body alone has the right
to administer the same. The requirement that
the college should have a governing body
including persons other than those who
constitute the governing body of the Society
of Jesus has the effect of divesting that body
of its exclusive right to manage the
educational institution. That it is desirable
in the opinion of the legislature to associate
the Principal of the college or-the other
persons referred to in s. 33A(1) (a) in the
management of the college is not a relevant
consideration. The question is whether the
provision has the effect of divesting the
governing body as constituted by the religious
minority of its exclusive right to administer
the institution. Under the guise of
preventing maladministration, the right of the
governing body of the college constituted by
the religious minority to administer the
institution cannot be taken away."
In State of Kerala v. Mother Provincial(1) this Court said
that "Administration means management of the affairs of the
institution, that the management must be free of control so
that the founders or their nominees can mould the
institution according to their way of thinking and in
accordance with their ideas of how the interests of the
community in general and the institution in particular will
be best served and that no part of this management can be
taken away and vested in another body without an
encroachment upon the guaranteed right."Sections 48 and 49
of the Kerala University Act, 1969 which came up for
consideration in that case respectively dealt with the
governing body for private colleges not under corporate
management and the managing council for private colleges
under corporate management. Under the provisions of these
sections, the educational agency or the corporate management
was to establish a governing body or a managing council
respectively. The sections provided for the composition of
the two bodies It was held that the sections had the effect
of abridging the right to administer the educational
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institution of the religious minority in question there.
One of the grounds given in the judgment for upholding the
decision of the High Court striking down the sections is
that these bodies had a legal personality distinct from
governing bodies set up by the educational. agency or the
corporate management and that they were not answerable to
the founders in the matter of administration of the
educational institution. The Court- said that a law which
(1) [1971 1S.C.R. 734.
815
interferes with the composition of the governing body or the
managing council as constituted by the religious or
linguistic minority is an abridgment of the right of the
religious minorities to administer the educational
institution established by it [see also W. Proost v.
Bihar(1) and Rev. Bishop S. K. Patro v. Bihar (2) ].
The determination of the, composition of the body to
administer the educational institution established by a
religious minority must be left to the minority as that is
the core of the right to administer. Regulations to prevent
maladministration by that body are permissible. As the
right to determine the composition of the body which will
administer the educational institution is the very essence
of the right to administer guaranteed to the religious or
linguistic minority under Article 30(1), any interference in
that area by an outside authority cannot be anything but an
abridgment of that right. The religious or linguistic
minority must be given the freedom to constitute the agency
through which it proposes to administer the educational
institution established by it as that is what Article 30(1)
guarantees. The right to shape its creation is one thing :
the right to regulate the manner in which it would function
after it has come into being is another. Regulations are
permissible to prevent maladministration but they can only
relate to the manner of administration after the body which
is to administer has come into being.
The provisions of Statute 14A are in pari materia with those
of s.33A(1)(a) of the Act which fell for consideration in
Ahmedabad St. Xavier’s College case (supra) except that
only the principal and the senior-most member of the staff
alone are required to be included in the managing committee
of the college in question here. But, in principle, that
makes no difference. The principle, as I said, is that the
minority community has the exclusive right to vest the
administration of the college in a body of its own choice,
and any compulsion from an outside authority to include any
other person in that body is an abridgment of its
fundamental right to administer the educational institution.
It is, no doubt, true that it is upon the principal and the
teachers that the whole temper and the tone of a college
depend. But that does not mean that the principal and the
teachers should be members of the governing council of a
college. It was only in the context of the right of the
religious or linguistic minority to appoint the principal
and teachers of the college established by it that we said
in Amendabad St. Xavier’s College case (supra)
"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
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most important
(1) [1969] 2 S.C.R. 73 at 77-78.
(2) [1969] 1 S.C.C. 863.
816
facet of the right to administer an
educational institution. We cart perceive no
reason why a representative of the University
nominated by the Vice Chancellor should be on
the Selection Committee for recruiting the
Principal or for the insistence of head of the
department besides the representative of the
University being on the Selection Committee
for recruiting the members of the teaching
staff. So_long as the persons chosen have the
qualifications prescribed by the University,
the choice must be left to the management.
That is part of the fundamental right of the
minorities to administer the educational
institution established by them."
While affirming the correctness of the observation in the
context in which it was made, I think it necessary to
repudiate its relevance and application here.
I would, therefore, allow the appeal without any order as to
costs.
KRISHNA IYER, J.--Our essay in this appeal is to interpret
and apply Art. 30 of the Constitution, illumined by the
ratio of the recent leading case on the constitutional
rights of minorities vis-a-vis educational institutions
where a Bench of 11 Judges handed down six opinions on the
thorny issue. As we proceed to Judgment, we are reminded of
two famous American observations. Chief Justice Marshall,
while deciding the celebrated McColloch v. Maryland Case(1)
made the pregnant remark : ’We must never forget that it is
the constitution we are expounding’. Governor Hughes, soon
to ascend the U.S. Supreme Court, said : ’We are under a
Constitution, but the Constitution is what the Judges say it
is.’ Reverentially guided and bound by great precedents but
mindful of the luminous texts and goals of the Constitution
itself, we have to attempt the task.
The facts of the present case are virtually admitted, the
precedent that binds us is of fresh vintage but the legal
test when applied to this concrete case-situation is fine,
if not baffling. of course, the only area for judicial
exploration is decoct the rule from the ruling and fit it to
the admitted facts.
The appellant is a registered society formed by the members
of the Muslim community at Shahjehanpur. Indubitably, the
community ranks as minority in the country and the
educational institution run by it has been found to be what
may loosely be called a ’minority institution, within the
constitutional compass of Art. 30. The earlier history of
the institution need not detain us and a rapid glance at its
evolution is enough. The A. V. Middle School was the off-
spring of the effort of the Muslim minority resident in
Shahjehanpur District. It later became a High School and
afterwards attained the status of an Intermediate College.
Eventually it blossomed into a degree college affiliated to
(1) 4 Wheaton 316, 407.
817
the University of Agra. In 1948, on the assassination of
the Father of the Nation, this college was commemoratively
renamed as Gandhi Faiz-e-am College. In August 1964, an
application was made on behalf of the college management to
the University for permission to start teaching in courses
of study including Sociology, Sanskrit, Arabic, military
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studies, drawing and painting. The University entertained
the thought that a new organisational discipline must be
brought into the institution and insisted, as a condition of
recognition of these, additional subjects as course of
study, on certain mutations in the administrative body of
the college. The bone of contention before us, as was
before the High Court, is that this prescription by the
University\,, in tune with Statute 14-A framed by it, is an
invasion of the fundamental right guaranteed to the minority
community under Art. 30 of the Constitution of India. The
High Court has negatived the plea of the management and the
appeal issues from that decision.
,"’hat is the core of the restriction clamped down by
Statute 14-A What is the conscience and tongue of Art. 30 ?
If the former is incongruous with the latter, it withers as
void; otherwise, it prevails and binds. That is the crux of
the controversy.
The minority college is administered by a three-tier body
organised intramurally by the Society. No outsider has
entered the precincts of management which has all along
remained with the members only. The General Council with
plenary powers, the Governing body more circumscribed yet
effective as policy-maker and the Managing Committee, the
day-to-day administrative sub-agency-these are the organs
vested with controlling power, under the relevant rules of
the Society. The essential point is that the Society is
that the Society is autonomous and its organs administer the
institution,
The University directive, backed by Statute 14-A, it is
contended, forces two persons on the area of administration.
This is argued to be a serious erosion of the great right
guaranteed to cultural and religious minorities. Statute
14-A, may at the outset, be reproduced
"14-A. Each college, already affiliated or
when affiliated, which is not maintained
exclusively by Government must be tinder the
Management of a regular constituted Governing
body (which term includes Managing Committee)
on which the staff of the college shall be
represented by the Principal of the college
and at least one representative of the
teachers of the college to be appointed by
rotation in order of seniority determined by
length of service in the college, who shall
hold office for one academic year."
Emboldened by this provision, the Registrar of the Agra
University has made the impugned demand which runs thus
818
Agra University
From
Sri R. N. Pathak,
Asst. Registrar (Affiliation),
Agra University, Agra.
To
The Principal,
G. F. College,
Shahjahanpur.
No. Aff/7965 Dated Agra, 24 Apr. 1965
Sir,
With reference to your application dated December 1, 1964
recognition in certain subjects upto the B. A. standard, I
am to inform you that the Executive Council at its meeting
held on April 10, 1965 after considering the report of the
Inspectors on the inspection of your college and the
recommendations of, the relevant committee thereon decided
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that recognition applied for upto the B. A. Standard be not
granted to the college unless provision is made in the
constitution for representation of the Principal and one
Head of Department to be chosen in order of seniority every
year on the Managing Committee (A the college and other
conditions have been fulfilled. I am therefore to request
you to take immediate steps to implement the aforesaid
decision of the Council and let me know that you have done
so. On receipt of your reply the matter will be further
considered.
Yours faithfully,
Sd/- R. N. Pathak Asst. Registrar (Affl)"
Maybe, we may as well mention the stand taken by the Manage-
ment of the College in the correspondence with the
Registrar. In one reply it was represented
"From
The President,-
Managing Committee,
G.F. College,
Shabjahanpur.
To
The Deputy Registrar (AM),
Agra University.
No. 660 Dated,
Shahjahanpur,
Nov. 22, 1965
819
Sir.
With reference to your letter no. Affl /1336, dated August
31, 1965 and subsequent reminder dated October 20, 1965, 1
have the honour to say that we are very grateful to the
University for its acceptance of the minority status of our
college.
While mentioning that the University has no legal power to
interfere in our right to administer the institution, we are
willing, to make the inclusion of the Principal and one Head
of Department by rotation obligatory in the Governing Body
as proposed in the written legal opinion of our counsel,
(relevant extract of which has been forwarded to us along
with your letter under reference), simply for the reason
that we are very anxious to keep up smooth and cordial
relations with the University.
The learned Vice-Chancellor is, therefore, requested to
grant us affiliation in all the new subjects in respect of
which our applications are pending at a very early date, to
en-able us to make the necessary preparations, which are
likely to take sufficient time, to start the classes in
those subjects from the beginning of the next session.
We undertake to amend our constitution suitably to give the
proposal a practical shape within three months after the
receipt of your kind reply.
An early disposal of this letter is solicited.
Yours faithfully,
Sd/-. .
President,
Managing Committee, G. F. College,
Shahjahanpur."
This concession was retracted allegedly because the
University took no steps accepting it and a writ petition
was filed challenging the vires of the Statute 14-A and
legality of the directive.
If reliance had been placed by the University on this
concession of the Management as amounting to a waiver of the
fundamental right, thereby making short shrift of the
dispute, it would have been difficult for us to accede, to
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the plea. Indeed, wisely no plea of waiver of the
Fundamental right has been put forward and perhaps none can
be, in this branch of constitutional jurisprudence. We are
therefore concerned with discerning the parameter of
’minority’ right in Art. 30.
A stream of Supreme Court rulings commencing with the Kerala
Education Bill Case (1) and climaxed by St. Xavier’s College
Case(2) has settled the law for the present, and the last
refers to the procedential past. We will confine ourselves
largely to the currently final pronouncement; but where did
the Court draw the delicate line between unconstitutional
conditions and constitutional-regulations ? A certain
thread of unanimity exists among the many opinions and that
common ground-not individual deviations and different must
be the basis of our judgment. Right at the beginning we
must observe.
(1) [1959] S.C.R. 995.
(2) A.I.R. [1974] S.C. 1389.
8 20
that the whole edifice of case law on Art. 30 has been bed-
rocked on the Kerala Education Bill Case (supra),
’The greatest common measure of agreement among the various
opinions in St. Xavier’s College case (supra) will have to
be ascertained. Ray, C.J., following Das C.J. (in the first
Kerala Case), has taken middle view, if one may say so with
great respect. ’Hands-off Administration altogether’ is a
tall call to day; but ’hand-cuff managements into uniformity
is also not the correct rule. A benignantly regulated
liberty which neither abridges nor exaggerates autonomy but
promotes better performance is the right construction of the
constitutional provision. Such an approach enables the
fundamental right meaningfully to fulfill its tryst with the
minorities’ destiny in a pluralist polity. That is the
authentic voice of Indian democracy. To regulate, be it
noted, is not to restrict. but to facilitate effective
exercise of the very right. The constitutional estate of
the minorities should not be, encroached upon, neither
allowed to be neglected nor maladministered. This
quintessence of the decision may now be aptly home out by
pertinent excerpts from the various judgments.
"The right to administer is to be tempered
with regulatory measures to facilitate smooth
administration. The best administration will
reveal no trace or colour of minority. A
minority institution should shine in exemplary
clectricism in the administration of the
institution" (at P. 1398) "Regulations which
will serve the interests of the students,
regulations which will serve the interest of
the teachers are of paramount importance in
good administration. Regulations in the
interest of efficiency of teachers, discipline
and fairness in administration are necessary
for preserving harmony among affiliated
institutions." (at p. 1398) "Autonomy in
administration means right to administer
effectively and to manage and conduct the
affairs of the institutions...... The
University will always have a right to see
that there is no maladministration. If there
is mat-administration, the university will
take steps to ewe the same. There may be
control. and check on administration in order
to find on,, whether the minority inst
itutions
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are engaged in activities which are not
conducive to the interest of the minority or
to the requirements of the teachers and the
students." (at p. 1399).
The ’inner voice’ of the whole pronouncement should not be
muffled while reading the particular result in the case and
that it happily expressed thus
"The right conferred on the religious and
linguistic minorities to administer
educational institutions of their choice is
not an absolute right. This right is not free
from regulation. Just as regulatory measures
are necessary for maintaining the educational
character and contest of minority institutions
similarly regulatory measures are necessary
for
821
ensuring orderly, efficient and sound
administration. Das, C.J., in the Kerala
Education Bill Case (supra) summed up in one
sentence the true meaning of the right to
administer by saying that the right to
administer is not the right to maladminister."
(at p. 1396) Mr. Justice Jaganmohan Reddy
summed up the law at the threshold
"The right of a linguistic or religious
minority to administer education-at
institutions of their choice, though couched
in absolute, terms had been held by this Court
to be subject to regulatory measures which the
State might impose for furthering the
excellence of the standards of education." (at
p. 1401)
Mr. Justice Khanna stressed what is sometimes
ill-remembered
"The idea of giving some special rights to the
minorities is not to have a kind of a
privileged or pampered section of the
population but to give the minorities a sense
of security and a feeling of confidence." (at
p. 1415).’
The learned Judge-, after visualising the abundant
catholicity of the guarantee in favour of minorities in our
multi-cultural country, insisted that regulations for the
welfare of the institution were not constitutional anathema:
"It is, in my opinion, permissible to make
regulations for ensuring the regular payment
of salaries before a particular date of the
month. Regulations may well provide that the
funds of the institution should be spent for
the purposes of education or for the
betterment of the institution and not for
extraneous purposes." (at p. 1422)
And, after itemising, illustratively other permissible
constraints, observed :
"A regulation which is designed to prevent
maladministration of an educational
institution cannot be said to offend clause
(1) of Article 30. At the same time it has to
be ensured that under the power of making
regulations nothing is done as would detract
from the character of the institution as a
minority educational institution or which
would impinge upon the rights of the
minorities to establish and administer
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educational institutions of their choice." (at
p. 1422)
"As observed by this Court in the case of Rev.
Sidhrajbhai Sabhai (1963 3 SCR 837),
regulations which may lawfully be imposed
either by legislative or executive action as a
condition of receiving grant or of recognition
must be directed to making the institution
while retaining its character as minority
institution effective as an educational
institution. Such regulation must satisfy a
dual test-the test of reasonableness, and the
test that it is regulative of the
8 22
educational character of the institution and
is conducive to making the institution an
effective vehicle of education for the
minority community or other persons who resort
to it." (at p. 1422)
In the context of affiliation of colleges, the
learned Judge concreteness the law thus :
"The said authority can always prescribe
regulations and insist that they should be
complied with before it would grant
affiliation or recognition to an educational
institution. To deny the power of making
regulations to the authority concerned would
result in robbing the concept of affiliation
or recognition of its real essence." (at p.
1423)
"It would be wrong to assume that an
unrestricted right as in Article 30 postulates
absence of regulations. Regulations can be
prescribed in spite of the unrestricted nature
of the right." (at p. 1423)
In short, the view which appealed to Khanna J., shows that
the law, to be constitutional, should not impair the
minorities’ right but may, be promotional in the sense of
making the purpose of the institution more productive.
One of us, sitting on that Bench (Mr. Justice Mathew) has
illumined the amplitude of the right under Art. 30 but has
not dissented from the validity of putting on that right
regulatory harness. In a pithy statement, this point has
been made by the learned Judge: ’No right, however absolute,
can be free from regulation’ (at p. 1441). The spiritual
seed of this thought is found in the Holmesian observation
extracted by him :
"All rights tend to declare themselves
absolute to their logical extreme. Yet all in
fact are limited by the neighbourhood of
principles of policy which are other than
those on which the particular right is
founded, and which become strong enough to
hold their own when a certain point is
reached." (at p. 1441)
With specific reference to ’affiliation’ these
guidelines fell from the learned Judge :
"Recognition or affiliation creates an
interest in the university to ensure that the
educational institution is maintained for the
purpose intended and any regulation which will
subserve or advance that purpose will be
reasonable and no educational institution
established and administered by a religious or
linguistic minority can claim recognition or
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affiliation without submitting to those
regulations. That is the price of recognition
or affiliation.. . . In other words, recog-
nition or affiliation is a facility which the
university grants to an educational
institution." (at p. 1442)
Justices Beg and Dwivedi have stretched the regulatory power
further than the majority, holding that it is an illusion
for a minority
8 23
to claim absolute immunity. The thrust of the case is that
real regulations are desirable, necessary and constitutional
but, when they operate on the ’administration’ part of the
right, must be confined to chiselling into shape, not
cutting down out of shape, the individual personality of the
minority.
The discussion throws us back to a closer study of Statute
14-A to see if it cuts into the flesh of the Managements’
right or merely tones up its health and habits. The two
requirements the University asks for are that the Managing
Body (whatever its name) must take in (a) the Principal of
the College; (b) its senior-most teacher. Is this
desideratum dismissible as biting into the autonomy of
management or tenable as ensuring the excellence of the
institution without injuring the essence of the right ? On a
careful reflection and conscious of the constitutional
dilemma, we are inclined to the view that this case Ms on
the valid side of the delicate line. Regulation which
restricts is bad; but regulation which facilitates is good.
Where does this fine distinction lie ? No rigid formula is
possible but a flexible test is feasible. Where the object
and effect is to improve the tone and temper of the
administration without forcing on it a stranger, however
superb his virtues be, where the directive is not to
restructure the governing body but to better its performance
by a marginal catalytic induction, where no external
authority’s fiat or approval or outside nominee is made
compulsory to validate the Management Board but inclusion of
an internal key functionary appointed by the autonomous
Management alone is asked for, the provision is salutary and
saved, being not a diktat eroding the freedom of the free-
dom.
A dichotomy is sometimes drawn in this branch of juridical
discussion. More plainly,. the difference drawn is between
creating a Managing body by the minority community and
regulation of the manner of its functioning to obviate
maladministration. The former is ordinarily beyond the pale
of legislative prescription while the latter is permissible
as a preservative. Broadly, this is sound, but as a rigid
logical formula it breaks down. For, some regulations may
impinge marginally upon the composition of the
administrative organ though manifestly meant to save the
institution from mismanagement. Just one or two examples.
If the law says that a person that a person sentenced for
a prescribed period of imprisonment for breach of trust or
an undischarged insolvent would be disqualified to be the
treasurer or one who has been removed from public office for
moral delinquency or has been punished for outraging the
religious feelings of the very minority under s.295-A,
I.P.C. should not hold office on the govern my body, such a
regulation affects the structure of the governing body but
is indubitably a protection against likely
maladministration. Likewise, supposing the management has
to award scholarships to students of merit, decide on
courses of study to be undertaken, regulate teacher-students
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committee and discipline, who but the Principal chosen by
the minority itself will be better on the Committee to guide
it in these vital affairs. These fine but real lines cannot
be obfuscated by excessive emphasis on the character of the
organ as against its method of working. Men matter in
extreme situations.
824
This perspective helps us discern the points made by either
side.
The pith of Shri Frank Anthony’s submission is that the
command of the University to include even the Principal, the
head appointed by that very Management to be in plenary
charge of the education imparted in the college, is an
invasion of the minority right. Freedom from any form of
external pressure, however well-meant and beneficent, is the
soul of the right to administer, if one may paraphrase his
contention. This is simply countered by the words of Khanna
J :
"It would be wrong to assume that an
unrestricted right as in Article 30 postulates
absence of regulations. Regulations can be
prescribed in spirt of the unrestricted nature
of the right." (at p. 1423)
All the other learned Judges who are party to St. Xavier
(supra) and all the earlier rulings have negatived the
untouchable absoluteness urged by the managements. Equally
fallacious is the simplistic submission which appears to
have appealed to the High Court that Art. 30 is disturbed
only when the right is destroyed, not when it is damaged.
St. Xavier (supra) has dispelled doubts in this behalf :
Abridgement of the constitutional right is as obnoxious as
annihilation. To cripple is to kill.
Steering clear of these unconstitutional shoals let us again
feel our way through the controversy. First, the principal.
In the eloquent words of one of the learned Judges (Mathew,
J.) in St. Xavier’s case (supra) :
"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."
(emphasis ours)
This strategic appointee must be chosen by the management
with sedulos care and his choice should not be
’externalised’ by regulations. All right. But for the
excellent reason that the principal is the vital, vibrant
and luscent presence within the educational campus, no ad-
ministration can bring out its best in the service of the
institution sans the principal. To alienate him is- to
self-inflict wounds; to associate him is to integrate the
academic head into the administrative body for the obvious
betterment of managerial insight and proficiency. He is no
stranger to the college but the commander appointed by the
management itself. A regulation which requires his
inclusion in the Governing Council imposes no external
element nor exposes the college to the espionage of one with
dual loyalties. His membership on the Board is a blessing
in many ways and not a curse in any conceivable
825
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way. After all the functions of the Managing Committee, as
set down in bye law 15, are :
"15. The Managing Committee shall-
(a) Dispose of applications for scholarships and concession
etc., received by the Secretary or any other person.
(b) Check and pass account kept by the treasurer, Secretary
or Principal.
(c) Have powers to appoint, suspend, remove or otherwise
punish or dismiss any servant of the school or college or
give them promotion or make reductions in their salaries and
grant them leave in accordance with the Agra University
rules as the case may be.
Provided that in case of dismissal or removal or fine
exceeding one month’s pay or suspension for a period exceed-
ing one month, an appeal shall lie to the Governing Body
whose decision shall be final. The period for filing the
appeal shall be 15 days from the receipt of the order
against which the appeal is to be preferred.
(d)See that the property of the institution, whether movable
or immovable, is properly managed and kept.
(e) Generally supervise the work of all the Office bearers.
(f) To pass the annual budget, annual report and dispose of
the audit note.
(g) To sanction expenditure upto Rs. 25,000/- in the course
of one year, irrespective of the budget provisions.
(h) To acquire by purchase, mortgage or otherwise
immovable or movable property for the institution and to
sell or otherwise dispose of movable property."
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. And the role of the
senior-most teacher, less striking maybe and more
unobtrusive, is a useful input into managerial skills,
representing as he does the teachers and being only a
seasoned minion chosen by the management itself. After all,
two creatures of the Society on a 16member Managing
Committee can bring light, not tilt scales. Moreover, the
Managing Committee itself is subject to the hierarchical
control of the Governing Body, and the General Council.
We see no force in the objection to the two innocuous
insiders being seated on the Managing Committee.
826
The various decisions of this Court where legislative
fetters have been struck down are cases in contrast. There,
the rules maim; here they improve. There the input upsets
the balance; here the addition is minimal and strengthens
from within. There, are external mandates to approve; here
an internal principal is proposed to be dovetailed to make
administration more proficient without injury to independent
action. In the Kerala University Act Case(1) the vice of
ss. 48 and summarised by Ray C.J., in St. Xavier (supra) was
stated thus
"Those sections were found by this Court to
have effect of displacing the administration
of the college and giving it to a distinct
corporate body which was in no way answerable
to the institution. The minority community
was found to lose the right to administer the
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institution it founded. The governing body
contemplated in those sections was to ad-
minister the colleges in accordance with the
provisions of the Act, statutes, ordinances,
regulations, bye-laws and orders made
thereunder. The powers and functions of the
governing body, the removal of the members and
the procedure to be followed by it were all to
be prescribed by the statutes. These
provisions amounted to vesting the management
and administration of the institution in the
hands of bodies with mandates from the
University." (at p. 1397)
Likewise in Rev. Fr. W. Proost(3) the mischief was summed
up in the St. Xavier Case by Ray C.J.., in these words :
"This Court in Rev. Fr. W. Proost Case(2)
held that s.48-A of the Bihar Universities Act
which came into force from 1st March 1962,
completely took away the autonomy of the
governing body of St. Xavier’s College
established by the Jesuits of Ranchi. Section
48-A of the said Act provided inter alia that
appointments, dismissals, removals,
termination of service by the governing body
of the College were to be made on the
recommendation of the University Service
Commission and subject to the approval of the
University. There were other provisions in
that section, viz., that the Commission would
recommend to the governing body names of
persons in order of preference and in no case
could the governing body appoint a person who
was not recommended by the University Service
Commission." (at p. 1397)
Again, the same judgment pinpoints in these brief words, the
unconstitutional sting in the Bihar Case viz. Rt. Rev
Bishop Patro(3) :
"In Rt. Rev. Bishop S. K. Patro v. State of
Bihar(3) the State of Bihar requested the
Church Missionary Society School, Bhagalpur to
constitute a managing committee of the
(1) State of Kerala v. Very, Rev,. Mother
Provincial; [1971] 1 S.C.R. 734.
(2) [19691 2 S.C. R. 73.
(3) [19701 1 S.C.R. 172.
827
school in accordance with an order of the
State. This Court held that the State
authorities could not require the school to
constitute a managing committee in accordance
with their order." (at p. 1397)
The Gujarat Case of St. Xavier (supra) is a study in
contrast, as stated earlier. Sections 40 and 41 and s. 38
shackled the management, trenching seriously upon the right
to administer. The law, as now expounded, regards this
excess as unconstitutional.
In all these cases administrative autonomy is imperilled
transgressing purely regulatory limits. In our case
autonomy is virtually left intact and refurbishing, not
restructuring, is prescribed. The core of the right is not
gouged out at all and the regulation is at once reasonable
and calculated to promote excellence of the institution--a
text book instance of constitutional conditions.
To project in bold relief the intrusion into the
administration of the provisions in the 2nd Kerala Case
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(supra), the D.A.V. College Case(1) and St. Xavier’s Case
(supra) as against the innocuous prescriptions bearing on
management in the present case, we may make a vivid
comparison of the clauses. A chart may speak with eloquent
clarity
(1) 119711 Sup. S.C.R. 688.
828
-----------------------------------------------------------
Kerala University Act Guru Nanak University
Statutes (D.A.V. College)
----------------------------------------------------------
(1) (2)
---------------------------------------------------------
S.48-Governing body for Statue 2(1) (a)
private college not under
corporate management- A college applying for adm-
(1) The educational agency ission to the privileges of
of a private college,other the University shall send a
than a private college un- letter of application to
der a corporate management the Register and shall
shall constitute in accor- satisfy the Senate :
dance with the provisions
of the statutes a governing
body consisting of following
members namely : (a) That the College shall
(a) the principal of the have a regularly constitu-
private college; ted governing body consist-
(b the manager of the ing of not more than 20 per
Private college; sons approved by the senate
(c) a person nominated by and including among others,
the university on accorda- 2 representatives of the
nce with the provisions University and the Princi-
in that behalf contained ple of the college ex-off-
in the states; icio.
(d) a person nominated by the
Government;
(e) a Person elected in
accordance with such procedure as
may be prescribed by the
Statutes from among themselves
by the permanent teachers of the
private college; and
(f) not more than six
persons nominated by the educational
agency.
(2) The governing body shall be a
body corporate having perpetual
succession and a common seal.
(3) The manager of the private
college shall be the Chairman of the
governing body.
(4) A member of the governing body
shall hold office for a period of four
years from the date of its constitution.
(5) It shall be the duty of the
governing body to administer the
private college in accordance with the
provisions of this Act and the
Statutes, Ordinances Regulations
rules, Bye-laws and Orders made thereunder,
829
----------------------------------------------------------
Gujarat University Act Statue 14-A
(St. Xavier’s College case) (impugned in the instant case)
----------------------------------------------------------
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3 4
----------------------------------------------------------
33-A.(1) Every college (other 14.A,Each college,already
than a Government college or affiliated or when affiliat-
college maintained by the ed which is not maintained
Government) affiliated before exclusively by Government
the commencement of the Guja- must be under the Management
rat University (Amendment) of a regulat constituted Gov-
Act, 1972 (hereinafter in this erning body (which term incl-
section referred to as such udes Managing Committee) on
commencement’)- which the staff of the college
shall be represented by the
(a)shall be under the priciple of the college and
at
management of a governing least one representative of
the
body which shall include teachers of the college to be
amongst its members the Pri- appointed by rotation in order
ncipal of the college, a of of seniority determined by len-
seniority representative of th of service in the college
the University nominated by who shall hold office for one
the Vice-Chancellor and three academic year.
representatives of the tea-
chers of the College and at least one representative each of
the
members of the non-teaching staff
and the students of the college,
to be elected respectively from
amongst such teachers members of the
non-teaching staff and students; and
(b) that for recruitment of the
Principal and members of the teaching
staff of a college there is a selection
committee of the college which shall
it)clude-(1) in the case of recruitment
of the Principal, a representative
of the University nominated by the Vice-
Chancellor, and (2)in the case of
recruitment of it member of the
teaching staff of the college, a
representative of the University
nominated by the Vice-Chancellor
and the Head of the Department, if any,
concerned with the subject to be taught
by such member.
(2) Every college referred to in sub-
section (1) shall,--
(a) within a period of six months after
such commencement, constitute or
reconstitute , its governing body in
conformity with subsection(1) , and (b) as
and when occasion first arises after such com-
mencement for recruitment of the
Principal and teachers of the college,
constitute or reconstitute its selection
committee so as to be in conformity with
sub-section (1).
(3)The provisions of subsection (1)
shall be deemed to be a condition of
affiliation of every college to in
sub-section (1).
830
-----------------------------------------------------------
(1) (2)
-----------------------------------------------------------
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(6) The powers and functions
of the governing body, 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,
(7) Notwithstanding anything
contained in sub-section (6),
decisions of the governing body
shall be taken at meetings on
the basis of simple majority
of the members present and voting.
S.49 Managing council for private
colleges under corporate management-
(a) one principal by rotation in
such manner as may be prescribed by
the Statutes;
(b) the manager of the private college;
(c) a person nominated by the University
in accordance with the provisons in that
behalf contained in the statute,,
(d) a person nominated by the Government;
(e) two persons elected in accordance
with such procedure as may be prescribed
by the Statutes from among themselves
by the permanent teachers of all the private
colleges; and
(f) not more than fifteen persons
nominated by the educational agency.
(2) The managing council shall be a
body corporate having perpetual
succession and a common seal.
(3) The manager of the private
colleges shall be the chairman of
the managing council.
(4) A member of the managing council
shall hold office for a period of
four years from the date of the
Constitution.
(5) it shall be the duty of the
managing Council to administer 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.
831
-----------------------------------------------------------
1 2
-----------------------------------------------------------
(6) The powers and functions
of 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.
(7) Notwithstanding anything
contained in sub-section (6),
decisions of the managing council
shall be taken at meetings on the
basis of simple majority of the
members present and voting,
S.63-Power to regulate the management
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of private colleges :-
(4) If the governing body or managing
council, as the case may be,
disapproves any decision taken
by the University in connection
with the management of the private
college the matter shall be
referred by the governing body
or managing council, as the case
may be, to the Government, within
one month of the date of receipt
of the report under subsection (3)
who shall there upon pass such order
there on as they think fit and
communicate the same to the
governing body or managing
council and also to the University.
(6) The manager appointed under
sub-section (1) of section 50 shall be
bound to give effect to the decisions
of the University and if at any
time, it appears to the University
that the manager is not carrying
out its decisions, it may, for
reasons to be recorded in
writing and after giving the
manager an opportunity of being
heard, by order remove him from
office and appoint another person
to be the manager after consulting
the educational agency.
-----------------------------------------------------------
In the chart aforesaid, we have confined our attention to
the ’management’ facet of the case but may mention that
while in the earlier cases even the power to appoint the
principal and staff was controlled, in the instant case it
is a refreshing contrast.
First the D.A.V. College. He who runs and reads will
discover that Statute 2(1) (a) insists upon (a) a limit to
the strength of the governing body; (b) the approval of the
Senate of the University for the constitution of the
governing body; and (c) the inclusion of two representatives
of the University as also the Principal of the college ex-
officio. To legislate for the governing body a rigid
restriction on its members is to deprive the minority of its
free play in organising its management. To compel approval
by the Senate-an outside instrumentality-before the
governing body can have legal status, is a violent violation
of Art. 30. To foist two representatives of the
832
University--rank outsiders-is again an infringement of the
autonomy of the minority institution. The Court, in D.A. V.
College case (sup) upheld the complaint of the college
authorities thus
"In our view there is no possible
justification for the provisions contained in
Clauses 2(1)(a) and 17 or Chap. V of the
statutes which decidedly interfere with the
rights of management of the Petitioners
Colleges. These provisions cannot therefore
be made as conditions of affiliation, the non-
compliance of which would involve
disaffiliation and consequently they will have
to be struck down as offending Article 30(1)."
It is impossible to predicate from the above observations
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that tills Court regarded as obnoxious the inclusion of the
Principal of the very college. On the other hand, the more
serious encroachment which caved into the independent
management of the College consists in the first three
provisions which are deprivation in character. The present
case is a graphic contrast. No ceiling on membership; no
unbidden guests, nominees of the University fobbed off- on
the Managing Committee. The solitary but inconsequential
similarity of circumstance that there is reference to the
Principal, there and here, cannot approximate the two cases
from the constitutional angle at all, what with complete
hold on staff appointment in the former and non,- in
the latter.
The Kerala Case (supra), as the table above shows, insists
oil the appointment of the Principal himself being
controlled, displaces the minority’s Managing Committee by
imposing an admixed governing agency of statutory concoction
wresting authority from the minority.A different entity with
legislatively limited functions robs the religious group of
its right of administration. The distance between the
Kerala University Act provisions and those of the Agra
University Act is considerable and the constitutional import
too obvious to]. argument.
The manacle regulations of the Gujarat University Act are
also tell-tale. Its metamorphic impact is best summed up in
the terse words of Ray, C.J. The minority character of the
college is lost. Ministry institutions became part and
parcel of the University. Why Because:
The provisions contained in section 33-A(1)
(a) of the Act state that every college shall
be under the management of a governing body
which shall include amongst its members, a
representative of the University nominated by
the Vice-Chancellor and representatives of
teachers, non-teaching staff and students of
the college
833
"In (1971) 1 SCR 734 (State of Kerala v. Very
Rev. Mother Provincial) this Court said that
if the administration goes to a body in the
selection of whom the founders have no say,
the administration would be displaced. This
Court also said that situations might be
conceived when they might have a
preponderating voice. That would also affect
the autonomy in administration. The
provisions contained in section 33-A(1) (a) of
the Act have the effect of displacing the
management and entrusting it to a different
agency. The autonomy in administration is
lost. New elements in the shape of
representatives of different types are brought
in. The calm waters of an institution will not
only be disturbed but also mixed. These
provisions in Section 33-A(1) (a) cannot
therefore apply to minority institutions."
(at p. 1399)
The features of the Agra University Act vis-a-vis the
minority institutions are conspicuously different and leave
almost unaffected the total integrity of the administration
by the religious group, save in the minimal inclusion of two
internal entities namely the principal of their own choice
and the senior-most lecturer independently appointed by
them.
We are satisfied that the regulatory clauses challenged
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before us improve the administration and do not inhibit its
autonomy and are therefore good and valid.
We therefore hold that the statute impugned is not
vulnerable nor void. The appeal has to be and is dismissed,
but without costs in the circumstances of this case.
ORDER
In accordance with the opinion of the majority, the appeal
is dismissed without any order as to costs.
V.P.S. Appeal dismissed.
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