St.Stephen???S College Rep. By ... vs University Of Delhi & Anr.
2008 Latest Caselaw 1406 Del

*              HIGH COURT OF DELHI AT NEW DELHI

+                           WP(C)5226/2008

%                                    Decided on:21st August, 2008


ST.STEPHEN'S COLLEGE                               ..... Petitioner
Rep. by its SUPREME COUNCIL

                        Through Mr.Romy Chacko with Mr.Arpit
                        Gupta, Mr.Sunil T.Mathews and Mr.Rajat
                        Joseph, Advocates

                        versus

UNIVERSITY OF DELHI & ANR.              ..... Respondents

Through Ms.Maninder Acharya with Mr.Vikas Sethi, Advocates for R-1 Mr.Amitesh Kumar, Advocate for R-2

CORAM:

HON'BLE THE CHIEF JUSTICE HON'BLE DR. JUSTICE S.MURALIDHAR

1. Whether reporters of the local papers be allowed to see the judgment ? Y

2. To be referred to the Reporter or not ? Y

3. Whether the judgment should be reported in the Digest ? Y

AJIT PRAKASH SHAH, CHIEF JUSTICE

Rule.

2. Learned counsel for the respondent Nos.1&2 waive service of

notice. By consent, the petition is taken up for final hearing.

3. The short question that falls for our consideration is whether

the management of a minority college is free to choose and

appoint any qualified person as Principal of the college or whether

such management is hedged by any Ordinance of the University

in doing so ? This controversy has arisen because the University of

Delhi is insisting that the petitioner College shall follow the

procedure of the Selection Committee for filling up the post of

Principal as referred to in Clause 7 of Ordinance XVIII of the Delhi

University.

4. The petitioner St.Stephen's College is an aided minority

educational institution established and administered by the

religious minority of Christians. The College was established in the

year 1881 and has maintained its Christian character till date. The

management of the College is looked after by the Supreme

Council and the Governing Body. The Principal of St.Stephen's

College is appointed by the Supreme Council and he shall be a

Christian belonging to the Church of North India. According to the

petitioner it has followed the College constitution till date for filling

up the post of Principal subject to the qualification prescribed by

the University and this was never objected to by the University as

the University Ordinance dealing with the procedure for filling up

the post of Principal does not apply to the minority educational

institution. However, now the University is insisting the petitioner

to follow the University Ordinance for filling up the post of

Principal. The petitioner has, therefore, approached this Court

seeking a declaration that Clause 7(2) of Ordinance XVIII of Delhi

University does not apply to a minority educational institution.

5. Some more facts need to be stated in order to understand

the dispute. In January 2007 the post of Principal of St.Stephen's

College fell vacant consequent to the appointment of Dr.Anil

Wilson as Vice Chancellor of Himachal University. Hence to fill up

this vacancy the Supreme Council advertised the post of Principal

on 23rd March, 2007. Seven applications were received and the

applicants were interviewed on 9th May, 2007 but none was found

suitable for being appointed as Principal. Hence Rev.Fr. Valson

Thampu, former Head of Department of English, St.Stephen's

College, was invited to serve as Officer on Special Duty (OSD) to

the College as permitted by Clause 3 (c) of the Ordinance XVIII of

the University. The appointment of Rev.Fr. Valson Thampu as

OSD was challenged before the National Commission for Minority

Educational Institutions. The Commission vide its order dated 5th

February, 2007 declared that the appointment of Rev.Fr. Valson

Thampu is illegal and inoperative. The Commission also

recommended to the College to take urgent corrective measures

for selection and appointment of a regular Principal for the College

in accordance with law. The order passed by the National

Commission for Minority Educational Institutions was challenged

by the petitioner before this Court and notice was issued to the

respondents in the matter. However, Fr.Valson Thampu resigned

from the post of OSD and the same was accepted by the Supreme

Council on 15th March, 2008. The petitioner again initiated the

process to fill up the post of Principal in accordance with the

College constitution and an advertisement in the newspapers

inviting applications for the post of Principal was also issued. The

advertisement provides that the candidate should fulfil the

necessary qualifications prescribed under the University

Ordinance, referred to above. The University however directed

the petitioner vide communication dated 20th March, 2008 to

follow in letter and spirit the UGC norms for appointment of

Principals of colleges both with regard to the minimum

qualifications prescribed and selection committee and selection

process. The first respondent also directed the petitioner not to

insist upon any minimum age criteria as prescribed in the

advertisement since the same is not provided in the University

Ordinance. Vide a further communication dated 27th March, 2008

the Delhi University again insisted the petitioner to follow the

composition of the Selection Committee for the post of Principal as

referred to in Clause 7 of the Ordinance XVIII.

6. Ordinance XXIV of Delhi University deals with qualifications

for the post of Principal. The advertisement given by the

petitioner clearly stipulates that only those candidate who fulfil the

qualifications prescribed in Ordinance XXIV would be eligible to

apply for the post of Principal. The dispute is with regard to the

applicability of Clause 7(2) of Ordinance XVIII. Clause 7(2) of

Ordinance XVIII requires the Governing Body of the College to

forward to the University the list of the applicants for the post of

Principal as well as others whom the Governing Body proposes to

consider for the post of Principal in a form prescribed by the

University. The aforesaid list submitted by the Governing Body is

scrutinized by the Preliminary Selection Committee. Thereafter

the recommendation of the Preliminary Selection Committee has

to be forwarded to the University and upon receiving the

recommendation, the University can either send its panel of

names mentioned in the order of preference whom the University

is prepared to recognize as Principal to the Governing Body or

refrain from sending any such list if according to the University

none of the applicants is found suitable for the post. If the

University does not send its panel of names for the post of

Principal, the College has no other option other than to re-

advertise the post.

7. The University is given the power of veto at different stages

of selection. Clause 7(2) of the Ordinance contemplates two

committees for the purpose of appointing the Principal of a college

affiliated to Delhi University i.e. (i) the Preliminary Selection

Committee and (ii) the Final Selection Committee for appointing

Principal of the College. The Preliminary Selection Committee

consists of (i) the Vice-Chancellor; (ii) Pro-Vice Chancellor; (iii) a

nominee of the Visitor; (iv) Chairman of the Governing Body of the

College and (v) two members of the Executive Council nominated

by it. Thus, in the constitution of the Preliminary Selection

Committee, the management has only one representative and the

University has five nominees. Apart from this, any

recommendation made by the Preliminary Selection Committee is

not binding on the University. If for any reason the

recommendation made by the Preliminary Selection Committee is

not acceptable to the University, it is open to the University

either to forward a list of persons mentioned in the order of

preference whom the University would be prepared to recognize

as Principal or refrain from sending a list if the University feels that

none of the applicants is suitable for the post of Principal. The

Final Selection Committee has practically no role other than to

select one of the candidates chosen by the University. The

contention of the petitioner is that as per Clause 7(2), the whole

process of selection is taken over by the University and the

Governing body has no say except to forward the list of applicants

to the University and thereafter appoint the person selected by the

University.

8. Mr.Romy Chacko, learned counsel appearing for the

petitioner, contends that the right to appoint the Principal is the

most important facet of the minorities' right to administer under

Article 30(1) of the Constitution. He submits that receipt of aid by

a minority institution does not, in any way, fetter or abridge this

constitutional right to administer educational institutions and

therefore, Clause 7(2) of Ordinance XVIII requiring the minority

college to follow the Selection Committee procedure is violative of

Article 30(1) of the Constitution. He further submits that the State

or University cannot regulate the method or procedure for

appointment of Principal and the limited power vested with them

is to prescribe qualifications for the post of Principal. He submits

that the question whether aided minority educational institutions

continue to enjoy the right for appointing the Principal of a college

after the judgment in TMA Pai Foundation v. State of

Karnanataka (2002) 8 SCC 481 is finally settled in Secretary

Malankara Syrian Catholic College v. T.Jose & Others (2007)

1 SCC 386 wherein after referring to TMA Pai Foundation case it

has been held that receipt of State aid does not annihilate the

right guaranteed to the minorities under Article 30(1).

9. On the other hand Ms.Maninder Acharya, learned counsel

appearing for the Delhi University, contends that the minorities do

not have any unfettered right under Article 30(1) to administer

and manage their educational institutions; that the University can

regulate certain facets of administration of private educational

institutions run by minorities, in particular by prescribing minimum

qualification, experience and other conditions relating to merit for

being appointed as Principal and therefore Clause 7 of Ordinance

XVIII of the University providing for the manner for filling up the

post of Principal is binding on minority institutions receiving aid

from the State. She submits that the condition imposed by Clause

7(2) can hardly be construed as interference with the right of the

institution to administer its affairs. Since the institution is

affiliated with the University it is required to comply with the

requirements as any other similar institution, and, there was no

discrimination in the application of this Clause of the Ordinance

and further the object was to ensure transparency and objectivity

in the selection process and this cannot be termed as interference

in the affairs of the institution. Learned counsel has placed heavy

reliance on the decision of the Supreme Court in TMA Pai

Foundation (supra).

10. Mr.Amitesh Kumar, learned counsel appearing for the

University Grants Commission has more or less supported the

submissions of the learned counsel for the University.

11. The question which we have to consider is whether the

management of a minority college is also bound by Clause 7 of

Ordinance XVIII of the Delhi University and hence the college is

required to follow the procedure prescribed therein for filling up

the post of Principal. A Constitution Bench of seven Judges of the

Supreme Court in Re: The Kerala Education Bill 1957, AIR

1958 SC 956 examined constitutional validity of the Bill, in a

reference by the President of India. One of the propositions laid

down by the Constitution Bench in the said decision is that the

right guaranteed under Article 30(1) is a right that is absolute in

law and any law or executive direction which infringes the

substance of that right is void to the extent of infringement. But

the absolute character of the right will not preclude making of

regulations in the true interest of efficiency or instruction,

discipline, health, sanitation, morality, public order and the like, as

such regulations are not restrictions on the substance of the right

guaranteed by the Constitution.

12. The aforesaid proposition was approved by another

Constitution Bench of the Supreme Court in Sidharajbhai Sabbai

v. State of Gujarat AIR 1963 SC 540 and also a nine Judge

Bench of the Supreme Court in Ahmedabad St.Xavier's College

Society v. State of Gujarat (1974) 1 SCC 717.

13. The importance of the key role which a Principal or a Head

Master plays in college or in school has been pithily stated by a

two Judge Bench decision in N.Ammad v. Manager, Emjay High

School & Ors (1998) 6 SCC 674 in the following words: (AIR p-680

para 18)

"Selection and appointment of Headmaster in a school (or Principal of a college) are of prime importance in administration of that educational institution. The Headmaster is the key post in the running of the school. He is the hub on which all the spokes of the

school are set around whom they rotate to generate result. A school is personified through its headmaster and he is the focal point on which outsiders look at the school. A bad headmaster can spoil the entire institution, an efficient and honest headmaster can improve it by leaps and bounds. The functional efficacy of a school very much depends upon the efficiency and dedication of its Headmaster. This pristine precept remains unchanged despite many changes taking place in the structural patterns of education over the years."

The Court cited with approval the following observations of Chief

Justice M.S.Menon in a Full Bench decision of the Kerala High Court

in Aldo Maria Patroni v. E.C.Kesavan, AIR 1965 Ker 75: (AIR p-

680 para 19)

"The post of the headmaster is of pivotal importance in the life of a school. Around him wheels the tone and temper of the institution; on him depends the continuity of its traditions, the maintenance of discipline and the efficiency of its teaching. The right to choose the headmaster is perhaps the most important facet of the right to administer a school, and we must hold that the imposition of any trammel thereon - except to the extent of prescribing the requisite qualifications and experience - cannot but be considered as a violation of the right guaranteed by Article 30(1) of the Constitution. To hold otherwise will be to make the right 'a teasing illusion, a promise of unreality''.

14. The nine Judge Bench in Ahmedabad St.Xavier's College

Society's case (supra) also highlighted the importance of the role

of the Principal of a college. In that decision, in paragraph 182,

Justice K.K.Mathew observed thus: (SCC pp 815-16 para 182)

"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."

15. Krishna Iyer, J dissenting from the majority view in Gandhi

Faiz-E-Am College v. University of Agra (1975) 2 SCC 283 has

nevertheless emphasised the importance of the post of Principal in

the following words: (SCC p 293 para 21)

"21. 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."

16. In State of Kerala v. Very Rev. Mother Provincial (1970)

2 SC 417 the Supreme Court upheld the decision of the Kerala

High court declaring sub-sections (1),(2),(3) of Section 53 of the

Kerala University Act, 1969 relating to appointment of Principal as

ultra vires Article 30(1) in respect of minority institutions. The

Court affirmed the following findings of the High Court (reported in

1969 Kerala Law Times 749) :

"The principal of a college is, as S.2(12) recognizes, the head of the college, and the post of the principal is of pivotal importance in the life of a college; around him wheels the tone and temper of the institution; on him depends the continuity of its traditions, the maintenance of discipline and the efficiency of its teaching; and the right to choose the principal is perhaps the most important facet of the right to administer a college. The imposition of any trammel thereon except to the extent of prescribing the requisite qualifications and experience or otherwise fostering the interests of the institution itself cannot but be considered as a violation of the right guaranteed by article 30(1) of the Constitution, and, for the reasons we have already given, by article 19(1)(f) as well. To hold otherwise would be to make the rights "a teasing illusion, a promise of unreality". Provision may, of course, be made to ensure that only proper persons are appointed to the post of principal; the qualifications necessary may be prescribed and the mode of selection for the purpose of securing the best men may be laid down. But to go beyond that and place any further fetter on the choice would be an

unreasonable interference with the right of management. Therefore, so far as the post of principal is concerned, we think it should be left to the management to secure the services of the best person available. This, it seems to us, is of paramount importance and the prospects of advancement of the staff must yield to it. The management must have as wide a field of choice as possible; yet sub-section (2) of Section 53 restricts the choice to the teachers of the colleges or of all the colleges, as the case may be, and enables the appointment of an outsider only if there is no suitable person in such college or colleges. That might well have the result of condemning the post to a level of dull mediocrity. A provision by which an outsider is to be appointed, or a junior member of the staff preferred to a senior member, only if he is of superior merit, the assessment of which must largely be left to the management, is understandable; but a provision which compels the management to appoint only a teacher of the college (or colleges) unless it pronounces all the teachers unsuitable, is clearly in derogation of the powers of the management, and not calculated to further the interest of the institution. But we might say that there can be no objection to the appointment of the principal as of any other member of the staff being subject to the approval of some authority of the University so long as disapproval can be only on the ground that the person appointed has not the requisite qualifications. Also that if disapproval is not to be only on some such stated ground, but is left entirely to the will and pleasure of the appointing authority, that would be to deprive the educational agency of its power of appointment and would be bad for offending article 19(1)(f) and article 30(1)

17. In N.Ammad's case (supra) the Court categorically held

that if management of the school is not given very wide freedom

to choose the personnel for holding such a key post, subject of

course to the restrictions regarding qualifications to be prescribed

by the State, the right to administer the school would get much

diminished. The Court also rejected the submission that the

management should have advertised for the post inviting

applications from qualified persons. The Court distinguished the

decision in Shainda Hasan v. State of U.P. (1990) 3 SCC 48 by

observing that no legal proposition has been laid down in that case

that the selection process must be through advertisement. It is for

the management of the minority educational institution to choose

the modalities for selecting qualified persons for appointment.

18. In Board of Secondary Education and Teachers

Training v. Jt.Director of Public Instructions, Sagar and

Others (1998) 8 SCC 555 the Court made it clear that the right

of minority institutions cannot be taken away by any rules or

regulations or any enactment made by the State except

prescribing qualifications and eligibility for the appointment.

Paragraph 3 of the said judgment, which is material, is quoted

below: (SCC p 556)

"3. The decisions of this Court make it clear that in the matter of appointment of the Principal, the management of a minority educational institution has a choice. It has been held that one of the incidents of the right to administer a minority educational institution is the selection of the Principal. Any rules which take away this right of the management have been held to be interfering with the right guaranteed by Article 30 of the Constitution. In this case, both Julius Prasad selected by the management and the third respondent are qualified and eligible for appointment as Principal according to rules. The question is whether the management is not entitled to select a person of their choice. The decisions of this Court including the decision in State of Kerala v. Very Rev.Mother Provincial and Ahmedabad St.Xavier's College Society v. State of Gujarat make it clear that this right of the minority educational institution cannot be taken away by any rules or regulations or by any enactment made by the State. We are therefore, of the opinion that the High Court was not right in holding otherwise. The State has undoubtedly the power to regulate the affairs of the minority educational institutions also in the interest of discipline and excellence. But in that process, the aforesaid right of the management cannot be taken away, even if the Government is giving hundred per cent grant. We need not go into any other question in this appeal."

19. In the recent decision in Secretary Malankara Syrian

Catholic College (supra) Section 57 (3) of the Kerala University

Act, 1974 fell for consideration of the Supreme Court. Section

57(3) provides that post of Principal, when filled up by promotion

to be made on the basis of seniority-cum-fitness. The High Court

relying on the decision in TMA Pai Foundation held that receipt

of aid by a minority institution removes protection under Article

30(1), by taking away its right to claim immunity from interference

and therefore all regulations made by the State, governing the

manner of making appointments and removal, as also the

conditions of service of Principals and Lecturers, will be binding on

such aided institution. The High Court held that aid carries the

'price' of surrender of a part of its freedom and independence in

matters of administration. As a consequence, it held that Section

57(3) of the Act providing that appointments of Principal should be

on the basis of seniority-cum-fitness, is valid and binding on

minority institutions. The Court formulated the following two

questions for consideration:

"(i) To what extent, the State can regulate the right of the minorities to administer their educational institutions, when such institutions receive aid from the State ?

(ii) Whether the right to choose a Principal is part of the right of minorities under Article 30(1) to establish and administer educational institutions of their choice. If so, Section 57(3) of the Act would violate Article

30(1) of the Constitution of India ?"

20. As regards question No.1 the Court after a critical analysis of

various decisions, ranging from State of Kerala v. Very

Rev.Mother Provincial to TMA Pai Foundation, held that all

laws made by the State to regulate administration of educational

institutions and grant of aid, will apply to minority educational

institutions also and if any such regulation interfere with the

overall administrative control of the management over the staff or

abridges/dilutes in any other manner, the right to establish and

administer educational institutions, such regulations, to that

extent, will be inapplicable to minorities institutions.

21. Insofar as the question relating to right of aided minority

institutions in the matter of appointment of Principal or

Headmaster, the Court after extensively quoting from the

decisions in N.Ammad, Board of Secondary Education and

Teachers Training and State of Kerala v. Very Rev.Mother

Provincial held as follows: ( SCC p 404)

"27. It is thus clear that the freedom to choose the person to be appointed as Principal has always been recognized as a vital facet of the right to administer the educational institution. This has not been, in any

way, diluted or altered by TMA Pai. Having regard to the key role played by the Principal in the management and administration of the educational institution, there can be no doubt that the right to choose the Principal is an important part of the right of administration and even if the institution is aided, there can be no interference with the said right. The fact that the post of the Principal/Headmaster is also covered by State aid, will make no difference.

28. The appellant contends that the protection extended by Article 30(1) cannot be used against a member of the teaching staff who belongs to the same minority community. It is contended that a minority institution cannot ignore the rights of eligible lecturers belonging to the same community, senior to the person proposed to be selected, merely because the institution has the right to select a Principal of its choice. But this contention ignores the position that the right of the minority to select a Principal of its choice is with reference to the assessment of the person's outlook and philosophy and ability to implement its objects. The management is entitled to appoint the person, who according to them is most suited, to head the institution, provided he possesses the qualifications prescribed for the posts. The career advancement prospects of the teaching staff, even those belonging to the same community, should have to yield to the right of the management under Article 30(1) to establish and administer educational institutions. "

22. In the light of the decided cases it is clear that the right of

minority educational institutions to appoint the head of the

institution cannot be taken away by any rule or regulation or by

any enactment made by the State even if the institution is

receiving 100% aid. A law which interferes with the minority's

choice of Principal would be violative of Article 30(1). In the

Secretary, Malankara Syrian Catholic College (supra) the

Court also clarified that paragraphs 72 and 73 of TMA Pai

Foundation were not rendered in the context of aided minority

institutions and the same was considered in paragraph-80 to 155

of the said judgment. The Court also recognized the importance of

the post of Principal. Minority institutions are thus entitled to

appoint a person who, according to it, is the most suited for the

head of the institution. Clause 7(2) of the Ordinance which

virtually takes away the right of a college to choose its Principal

cannot bind a minority administered institution.

23. At this stage it must be noticed that the petitioner does not

challenge Clause 24 of Ordinance XVIII which prescribes the

minimum qualification for the post of Principal. The learned

counsel for the petitioner in fact stated that the petitioner would

ensure that the person selected, possesses the minimum

qualification prescribed thereunder.

24. Ms.Maninder Acharya has referred to the decision of the

Division Bench of this Court in Jesus & Mary College v.

University of Delhi and Another : WP(C)5652/2006 decided on

30th November, 2006 to which one of us (Dr.S.Muralidhar, J) is a

party. This judgment deals with Clause 7(4A) of Ordinance XVIII

of the Delhi University relating to appointment of teachers. Apart

from the fact that this decision deals with the appointment of

teachers and not Principal, it is clearly noted in paragraph 25 of

the said judgment that it is settled law that a minority institution

cannot be regulated by the State to the extent that it completely

takes away the right to appoint a key person like Principal or

generally to administer the institution.

25. Mr. Amitesh Kumar the learned counsel for the UGC sought to

contend that the norms prescribed by the UGC would nevertheless

apply to the petitioner. Such a question does not arise for

consideration in this petition, and in any event any such norm

would be subject to the provisions of the Constitution and the law

concerning their scope as explained by the Supreme Court in the

decisions hereinbefore noticed.

26. In the result, the petition succeeds. It is declared that Clause

7(2) of Ordinance XVIII of the Delhi University does not apply to

the petitioner, which is a minority institution. The petitioner is

directed to proceed with the selection process for filling up the

post of Principal which is vacant since January, 2007 and fill up the

post of Principal within eight weeks from today.

                                        CHIEF JUSTICE



                                        S.MURALIDHAR
AUGUST21, 2008                            (JUDGE)
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