MANAGER, LOYOLA COLLEGE v. UNIVERSITY OF KERALA — 1988 DIGILAW 613 (KER)

JUDGMENT : Regulations of the University of Kerala, made under S.38 of the Kerala University Act, 1974, prescribe both educational qualifications as well as experience for appointment as Principals of Colleges affiliated to the University. So far as degree or post-graduate colleges are concerned, apart from the educational qualifications, 10 years teaching experience in a college/University after acquiring the prescribed qualification (of which at least two years should be at the degree level) was required for being appointed as Principal. This is the qualification prescribed in the Calicut University, and till recently, in the Mahatma Gandhi University also. The University of Kerala amended its Regulations by Ext. P1 dated December 1, 1986 stipulating inter alia that a teacher must have at least 25 years of service in a college or university before he could be appointed as the Principal of a degree or post graduate College. 2. The first petitioner is the Manager of a Post graduate college namely the Loyola College of Social Sciences, Trivandrum. This college is stated to have been “established by Rev. Fathers belonging to the congregation of Jesuits founded by St. Loyola”, Members of the said congregation are Catholics who form a minority community in India as well as in Kerala. The second petitioner is a teacher in the college appointed in the year 1976, and functioning as “teacher in charge” since March 31, 1985, when the post of Principal became vacant. 3. Art.30(1) of the Constitution guarantees to all minorities, whether based on religion or language, the right to establish and administer educational institutions of their choice. Petitioners challenge Ext. P1, in so far as it prescribes a minimum of 25 years service as qualification for appointment as Principal in a degree or post graduate college; as making an inroad into the rights of the minority community guaranteed under Art.30(1) of the Constitution. It is stated that the prescription of 25 years service narrows down the available field of choice of teachers for the appointment as principals. It is arbitrary and meant only to “choke or cripple” the right of the minority community to select the person of their choice as Principal. 4. I must point out even at the outset that the petitioners have no grievance about the length of experience (of ten years) prescribed previously, i.e. before the amendment by Ext. P1. It is arbitrary and meant only to “choke or cripple” the right of the minority community to select the person of their choice as Principal. 4. I must point out even at the outset that the petitioners have no grievance about the length of experience (of ten years) prescribed previously, i.e. before the amendment by Ext. P1. The challenge arises only by reason of the increased length of service prescribed by Ext. P1. 5. The scope and content of Art.30 (I) has been the subject matter of numerous decisions of the Supreme Court and of this Court to all of which it is not necessary to refer. The right conferred on the minorities is to establish and administer educational institutions of their choice. This right though couched in absolute terms, does not preclude the State from imposing reasonable regulations in the true interest of efficiency of instruction, discipline, health, sanitation, morality, public order and the like. Such regulations are not restrictions on the substance of the right which is guaranteed. They secure the proper functioning of the institutions in mutters educational. The power to impose such regulations, to ensure the excellence of the institutions, in their own interest and in the interests of the students, was recognised as early as in 1958 by the Supreme Court in the decision in In re the Kerala Education Bill 1957, AIR 1958 SC 956 . The Supreme Court delineated the right as follows: “We have already observed that Art.30 (1) gives two rights to the minorities. (1) to establish and (2) to administer, educational institutions of their choice. The right to administer cannot obviously include the right to maladminister. The minority cannot surely ask for aid or recognition for an educational institution run by them in unhealthy surroundings, without any competent teachers, possessing any semblance of qualification, and which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars. It stands to reason, then that the constitutional right to administer an educational institution of their choice does not necessarily militate against the claim of the State to insist that in order to grant aid the State may prescribe reasonable regulations to ensure the excellence of the institutions to be aided”. The matter was again discussed in Sidharajbhai v. State of Gujarat, AIR. 1963 SC. The matter was again discussed in Sidharajbhai v. State of Gujarat, AIR. 1963 SC. 540 in which the Supreme Court, after observing that the right guaranteed by Art.30 (I) should not be a teasing illusion or a promise of unreality, laid down the scope of the regulations which may be lawfully imposed on such institutions. Such regulations must satisfy a dual test, the test of reasonableness and the test that they are regulative of the educational character of the institution, and conducive to make the institution an effective vehicle of education for the minority community or other persons who resort to it. 6. In State of Kerala v. Mother Provincial AIR 1970 SC. 2079 , the Supreme Court analysed Art.30(1) as contemplating two rights which are separated in point of time. The first right is the initial right to establish institutions of the minority’s choice. The next part of the right related 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 bow 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. The Supreme Court observed: “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 public and are dictated by considerations of the advancement of the country and its people Therefore, if universities establish the syllabi for examinations, they must be followed subject however, to special subjects which the institutions may seek to teach, and to a certain extent, the State may also regulate the conditions of employment of teachers and the health and hygiene of students. Such regulations do not bear directly upon management as such although they may indirectly affect it. Yet the right of the State to regulate education, educational standards and allied matters cannot be denied. The minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions or under the guise of exclusive right of management to decline to follow the general pattern. Yet the right of the State to regulate education, educational standards and allied matters cannot be denied. The minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions or under the guise of exclusive right of management to decline to follow the general pattern. While the management must be left to them, they may be compelled to keep in step with others”. 7. In St. Xaviers College v. State of Gujarat, AIR. 1974 SC. 1389 a nine Judges Bench of the Supreme Court had occasion to deal with the scope of the right under Art.30(1) Though separate opinions were rendered, the middle view (as described by Krishna Iyer, J. in Gandhi Faiz-e-am College v. Agra University, AIR. 1975 SC. 1821) was taken by Ray, C. J. The Chief Justice who spoke for himself and on behalf of Palekar, J. observed as follows in Para.15:- “Affiliation to a University really consists of two parts One part relates to syllabi, curricula, courses of instructions, the qualifications, of teachers, library, laboratories, conditions regarding health and hygiene of students. This part relates to establishment of educational institutions: The second part consists of terras and conditions regarding management of institutions. It relates to administration of educational institutions.” The Chief Justice stated further in Para.18, after referring to the decision in Mother Provincial, already referred to, that measures which regulate the courses of study, the qualifications and appointment of teachers, the conditions of employment of teachers, the health and hygiene of students, facilities for libraries and laboratories are all comprised in matters germane to affiliation of minority institutions. These regulatory measures for affiliation are for uniformity, efficiency and excellence in educational courses and do violate any fundamental right of the minority institutions under Art.30. The Chief Justice then went on to observe as follows in Para.30 and 31: “30. Educational institutions are temples of learning. The virtues of human intelligence are mastered and harmonised by education. Where there is complete harmony between the teacher and the taught, where the teacher imparts and the student receives, where there is complete dedication of the teacher and the taught in learning, where there is discipline between the teacher and the taught, where both are worshippers of learning, no discord or challenge will arise. Where there is complete harmony between the teacher and the taught, where the teacher imparts and the student receives, where there is complete dedication of the teacher and the taught in learning, where there is discipline between the teacher and the taught, where both are worshippers of learning, no discord or challenge will arise. An educational institution runs smoothly when the teacher and the taught are engaged in the common ideal of pursuit of knowledge. It is. therefore, manifest that the appointment of teachers is an important part in educational institutions. The qualifications and the character of the teachers are really important. The minority institutions have the right to administer institutions This right implies the obligation and duty of the minority institutions to render the very best to the students. In the right of administration, checks and balances in the shape of regulatory measures are required to ensure the appointment of good teachers and their conditions of service. 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 eclecticism in the administration of the institution. The best compliment that can be paid to a minority institution is that it does not rest on or proclaim its minority character. 31. Regulations which will serve the interests of the students, regulations which will serve the interests of the students, regulations which will serve the interest of the teachers are of paramount importance in good administrations. Regulations in the interest of efficiency of teachers, discipline and fairness in administration are necessary for preserving harmony among affiliated institutions.” Mathew, J. who wrote a separate judgment, inter alia pointed out that it is upon the Principal and the teachers of a College that the tone and temper of an educational institution depend, a thought which was reiterated in Gandhi Faiz-e-am College’s case subsequently. The observations of Krishna Iyer, J. in the latter case are also relevant. He stated as follows with reference to the principal:- “This strategic appointee must be chosen by the management with sedulous care and his choice should not be ‘externalised’ by regulations, All right. The observations of Krishna Iyer, J. in the latter case are also relevant. He stated as follows with reference to the principal:- “This strategic appointee must be chosen by the management with sedulous 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 lucent presence within the educational campus, no administration can bring out its best in the service of the institution sans the principal.” The scope of the rights under the Article was again examined by the Supreme Court in All Saints High School v. Government of Andhra Pradesh, AIR 1980 SC. 1042 . Chandrachud C. J. observed that for maintaining educational standards of an institution, it is necessary to ensure that it is competently staffed. Conditions of Service, which prescribe minimum qualifications for the staff, their pay scales, their entitlement to other benefits of service and the like are all permissible measures of a regulatory character. The same thought was echoed by Kailasam, J. in bis separate judgment when be stated that conditions imposing the minimum qualifications of the staff are all valid. Fazal Ali, J. also spoke likewise in bis separate opinion. 8. These and other cases were all discussed by the Supreme Court again in Frank Antony Public School Employees Association v. Union of India, AIR 1987 SC 311 and the aforesaid principles reiterated. Statutory measures regulating the terms and conditions of service of employees of minority educational institutions for maintaining educational standards and excellence were held not to offend Art.30(1). Chinnappa Reddy, J. observed that the excellence of the instruction provided by an institution would depend directly on the excellence of the teaching staff and in turn that will depend on the quality and the contentment of the teachers. Conditions of service pertaining to minimum qualifications of teachers, their salaries and allowances cannot “surely” be said to be violative of the fundamental right guaranteed by Art.30 (1) of the Constitution. 9. This was reiterated again with particular reference to Lilly Kurian v. Sister S. R. Lewona, AIR 1979 SC 52 , in Theclamma v. Union of India AIR 1987 SC 1210 . 10. Sivaraman Nair J. has dealt with the matter in extenso in his judgment in Joseph v. State of Kerala, 1985 KLT. 9. This was reiterated again with particular reference to Lilly Kurian v. Sister S. R. Lewona, AIR 1979 SC 52 , in Theclamma v. Union of India AIR 1987 SC 1210 . 10. Sivaraman Nair J. has dealt with the matter in extenso in his judgment in Joseph v. State of Kerala, 1985 KLT. 946, where the question related to appointment to the post of Headmaster, and whether the managements of educational institutions established and administered by minority communities were bound ordinarily to promote the senior most teachers as Headmasters. It was held that the teachers of such institutions were as much entitled as teachers of other private schools to be governed by regulations of uniform application in the matter of such promotions since toe teachers are appointed after an over all assessment of their outlook and philosophy of life with a set purpose of conserving the religious culture of the minority community. 11. The matter was again discussed at length by Sivaraman Nair, J. himself in bis recent judgment Fr. Francis Fernanda v. D. E. O., Ernakulam, 1988 (2) KLT. 403 . After noting that the minority communities have no absolute and unregulated right in the matter of establishment and administration of educational institutions, the learned Judge observed that the decisions which proceed on the assumption that the right of the minority in the choice of the Headmaster of Schools or Principals of Colleges is absolute have now to be read down in the light of the later binding precedents. 12. Petitioner’s challenge to the regulation ia question has to be decided in the context of these decisions. The right of the minorities under Art.30(1) is not an absolute right. It is subject to reasonable regulations imposed by the State in the interest of education. Prescription of minimum qualifications for teaching staff with a view to achieve and maintain excellence, and standards of the institution concerned, does not violate the guarantee under Art.30 (1). The Principal, no doubt, is the king-pin around whom the institution works. The management must necessarily have confidence in him. But that is not to say that the State or the University cannot prescribe minimum qualifications for appointment as Principal, intended to achieve the maintenance of the institution as an educational institution and to ensure standards in education. 13. The Principal, no doubt, is the king-pin around whom the institution works. The management must necessarily have confidence in him. But that is not to say that the State or the University cannot prescribe minimum qualifications for appointment as Principal, intended to achieve the maintenance of the institution as an educational institution and to ensure standards in education. 13. It has to be noted at this stage that the petitioner had had no objection to the prescription of a teaching experience of ten years as qualification for appointment as Principal. The rationale behind the prescription of a minimum length of qualifying service is thus accepted. The objection has come in only because of the enhancement made by the University, by the recent amendment to the regulations of the length of qualifying service to 25 years. The contention is that in colleges run by the (Christian) minority, “there are well qualified Rev. Fathers and Rev. Sisters in the teaching staff” they can join the college as Junior Lecturer “after their religious course” only after “32 or 34 years of age”, and by the time they reach 25 years experience, they have to retire and “for them there is no chance to become the Principal”. Art.30(1) is therefore violated. 14. I am unable to accept this contention. Art.30(1) does not confer on the minority any right to have particular categories or classes of persons included in the field of choice for Principal. Their choice can only be from among persons who possess the qualifications prescribed. The selection of the Principal has to conform to the qualifications, which are of uniform and general application to all institutions minority or non-minority. The minority cannot insist on the qualifications being tailored to suit their needs. Art.30 (1) cannot be read as conferring any such freedom enabling the minority to dictate to expert academic bodies as to what qualifications they should prescribe to enable the minority to have a field of their own choice. Prescription of relevant qualifications, for such appointments does not violate any fundamental right of the minority under Art.30 (1). 15. There is absolutely no restriction placed on the minority managements in regard to the choice of the Principal. All that they are called upon to do is to select persons who have a minimum of 25 years of service. Prescription of relevant qualifications, for such appointments does not violate any fundamental right of the minority under Art.30 (1). 15. There is absolutely no restriction placed on the minority managements in regard to the choice of the Principal. All that they are called upon to do is to select persons who have a minimum of 25 years of service. The mere fact that the field of choice ia reduced or that a higher qualification is prescribed for appointment as Principal, with a view to ensure efficiency, excellence and standards in education does not violate the guarantee under Art.30 (1). If, instead of experience as a teacher, the University had prescribed higher educational qualifications for appointment as Principal, could it be said that the prescription of such a higher qualification is violative of Art.30(1) merely because the field of choice or the availability of candidates gets reduced? It is not as if the prescription has been made with any oblique motive. None such is suggested. The petitioners have no case that 25 years service has been prescribed to strike at the minority institutions or to deprive them of their right to appoint man of their choice as the Principal. No such case is pleaded; or argued before me. There cannot be any dispute that what the University is aiming at is only a higher level of experience and expertise in the incumbent of the post of Principal, in the interests of the institution, the teachers and the taught. The qualifying experience has been fixed uniformly for all institutions, whether they are established and administered by the minority or others. The minority institution has to keep step with the other institutions and maintain uniformity in the matter of appointment of Principal. 16. An academic body like the University which is acting to regulate such appointments in all institutions under their control, can be presumed to be well aware of the prevailing conditions and the needs of the time, so far as educational matters are concerned. The court cannot presume that the University has prescribed an onerous qualification, or a qualification which cannot in the ordinary course be possessed by teachers within the University, or something which is unnecessary, or not conducive to, to the interests of the institution. No other institution has had any complaint about this prescription of twenty five years qualifying service. The court cannot presume that the University has prescribed an onerous qualification, or a qualification which cannot in the ordinary course be possessed by teachers within the University, or something which is unnecessary, or not conducive to, to the interests of the institution. No other institution has had any complaint about this prescription of twenty five years qualifying service. I am mentioning this because of the vague allegation in the original petition that any appointee with 25 years service will ordinarily be in office only for one or two years, and therefore, will not be able “to continue the traditions or to maintain the discipline commanding respect from the staff and the students”. This has however, nothing to do with the rights under Art.30(1). 17. The Principal along with the teachers sets the tone and temper of the institution as observed by Mathew, J. The campus discipline, leadership, standards in imparting education, maintaining good relations with the management, all these depend on a mature person occupying the seat of Principal. The Principal is the head of the institution. His qualities of leadership, the respect that he commands and the drive and enthusiasm that he is able to inspire in the teachers, the staff and the students, will set the standards for the institution. The Principal is not a mere representative of the management; his role as a teacher, as a leader and as an able administrator in the educational institution is of cardinal importance. He occupies a pivotal position in the management of the college and in its day-to-day running. Experience. it is said, is the best teacher. A person with a long period of experience behind him can certainly be expected to bring to bear on his task, the skill, and the acquaintance with student teacher aspirations so necessary to make the institution a true temple of learning. Any qualification geared to achieve this and cannot be carped upon as offending Art.30 (1). The qualification has been set by the University guided by persons well acquainted with the necessities of the educational field and well aware of the availability of qualified man power to occupy the Post of Principal. I do not therefore find any violation of Art.30 (1) by the amendment brought about by Ext. P1. 18. The plea of the petitioners as set forth in Para.13 above is only one of abridgement of the rights of the. I do not therefore find any violation of Art.30 (1) by the amendment brought about by Ext. P1. 18. The plea of the petitioners as set forth in Para.13 above is only one of abridgement of the rights of the. “Rev. fathers and Rev. sisters” to be Principals. This is not by itself an invasion of the rights of the minority. Even the ground pleaded by the petitioners does not therefore constitute any violation of the rights under Art.30(1). The second petitioner, who is a teacher in the first petitioner’s college, has a grievance that his fundamental right under Art.19 (1) (g) is violated. The prescription of 25 years experience, it is said, is an unreasonable restriction on his freedom to carry on his profession, be being the “teacher in charge” of the college. Reliance is placed on the decisions in V.G. Row. v. State of Madras. AIR. 1952 SC. 196, B. C. & Co. v. Union of India, AIR. 1973 SC. 106 and Beshamber Dayal Chandra Mohan v. State of U. P., AIR. 1982 SC. 33 to contend that this is an unreasonable restriction. This contention is only to be stated to be rejected. Nobody has guaranteed to the second petitioner that he will be appointed as Principal of a college. He is a teacher and no restriction has been placed on his functioning as such teacher. He has no fundamental right to carry on any profession as ‘Principal’ of a college. All that the University has done is to prescribe qualifications for the post of Principal. May be the second petitioner cannot attain that qualification; but that will not make it unreasonable. The discussion in the preceding paragraphs will show that the experience qualification has been prescribed with a definite object. The restriction, if any, imposed by the prescription of the qualification is a reasonable one, in public interest. This contention has therefore, only to be rejected. I do not find any merit in the original petition. It is accordingly dismissed in limine. Issue carbon copy on usual terms. Dismissed.