Secretary vs State Of Kerala
2022 Latest Caselaw 5160 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
      THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
   TUESDAY, THE 10TH DAY OF MAY 2022 / 20TH VAISAKHA, 1944

                   WP(C) NO. 2345 OF 2013

PETITIONER/S:

    1    SECRETARY
         CORPORATE MANAGEMENT OF M.O.C COLLEGES
         DEVALOKAM KOTTAYAM 686001

    2    MANAGER
         ST. GEORGE COLLEGE,
         ARUVITURA 686512

    3    MANAGER
         ST. DOMINIC'S COLLEGE,
         KANJIRAPPALLY 686512

    4    MANAGER
         ST. THOMAS COLLEGE,
         PALA 686574

    5    PRINCIPAL
         ST. THOMAS COLLEGE,
         PALA 686574

    6    MANAGER
         CORPORATE EDUCATIONAL AGENCY OF COLLEGES,
         ARCHEPARCHY OF KOTTAYAM
         ST. STEPHEN'S COLLEGE, UZHAVOOR 686634

    7    THE PRINCIPAL
         ST. STEPHEN'S COLLEGE, UZHAVOOR 686634

    8    MANAGER
         DEVA MATHA COLLEGE, KURAVILANGAD 686633

    9    PRINCIPAL
         DEVA MATHA COLLEGE, KURAVILANGAD 686633
 W.P.(C) No. 2345/2013              2




       10      MANAGER
               UNION CHRISTIAN COLLEGE, ALUVA 683102

       11      PRINCIPAL
               UNION CHRISTIAN COLLEGE, ALUVA 683102

       12      MANAGER OF COLLEGES
               DIOCESE OF KOTHAMANGALAM BISHOP'S HOUSE,
               KOTHAMANGALAM 686691

               BY ADVS.
               SRI.BABY ISSAC ILLICKAL
               SRI.ISAAC KURUVILLA ILLIKAL


RESPONDENT/S:

   1        STATE OF KERALA
            REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT
            SECRETARIAT, THIRUVANANTHAPURAM 695001

   2        MAHATMA GANDHI UNIVERSITY
            REPRESENTED BY ITS REGISTRAR,
            KOTTAYAM 686560

   3        BOARD OF ADJUDICATION OF STUDENTS GRIEVANCES
            REPRESENTED BY ITS CHAIRMAN (VICE CHANCELLOR),
            MAHATMA GANDHI UNIVERSITY, KOTTAYAM 686560

            BY ADV SHRI.SURIN GEORGE IPE, SC, M.G.UNIVERSITY

            SMT. SURYA BINOY, SR. GOVERNMENT PLEADER



   THIS WRIT PETITION (CIVIL) HAVING COME UP FOR HEARING ON
   7.4.2022, THE COURT ON 10.5.2022 DELIVERED THE FOLLOWING:
 W.P.(C) No. 2345/2013                  3




                                                                   "CR"




                                JUDGMENT

The Managers and Principals of certain Aided Minority Educational

Institutions established and administered by the Christian Community in the

State have approached this Court with this writ petition seeking for a

declaration that the Board of Adjudication of the Students Grievances ('BASG'

for short) constituted under Chapter 27 of the Mahatma Gandhi University

First Statutes, 1997 ('Statutes' for short) has no authority to adjudicate the

grievances of the students pertaining to disciplinary proceedings initiated or

action taken against them by the Principals of the petitioners' institution. They

have also sought for a declaration that Rule 9 of the Mahatma Gandhi

University Students Code of Conduct Rules, 2005, ('Code of Conduct Rules' for

short) would not be applicable to the minority educational institutions run by

the petitioners.

2. The facts as detailed in the petition are as under.

The petitioners contend that the Colleges run by them are

minority institutions and are entitled to the protection guaranteed under

Article 30(1) of the Constitution of India. According to the petitioners, it is by

now settled by a catena of judgments that all minorities, linguistic or

religious, have an absolute right to establish and administer the educational

institutions and any law or executive directions which seeks to infringe the

substance of such rights would be void to that extent. The right to

administer, according to the petitioners, would mean management of the

affairs of the institutions and the same would include taking disciplinary

action against its students, staff etc. It is contended that the minority

management would have the exclusive right to initiate appropriate action to

enforce and ensure discipline in the campus without the interference of

external bodies.

3. The petitioners contend that the Code of Conduct Rules, 2005

was framed on the basis of UO No.162/2004/2/Elen dated 16.02.2005. The

aforesaid Rules have been made with an object to maintain and enforce good

conduct inside the classrooms and campus in the affiliated Colleges,

Department of Teaching and Research and the Self Financing Schools of the

MG University. Rule 9 of the Code of Conduct Rules reads as follows:

"9. Right to Appeal- A student against whom the disciplinary orders had been passed; shall have a right to appeal to the Board for Adjudication of Students' Grievances as provided in Chapter27 of Mahatma Gandhi University Statue 1997. The appellate authority shall have the power to set aside, modify or cancel the order, provided the appeal is found to be genuine and filed within the period of 30 days

from the date of receipt of the order. The appellate authority shall also have the power to condone the delay in filing the appeal if it is proved to the satisfaction of the appellate authority by the appellant that he was prevented by sufficient cause from preferring the appeal within the time. "

4. By invoking the above Rule, any student, against whom

disciplinary action is taken by the Principal, can file an appeal before the

BASG and the said Board by exercising appellate powers, is entitled to set

aside, modify or cancel the order of disciplinary action taken by the Principal

against the students. There are eleven members in the BASG which include

three students. Rule 9 thus confers powers to the BASG to veto the

disciplinary action taken by the Head of the Institution. This would amount to

interfering with the disciplinary power of the minority institutions and would

fetter the rights of administration under Article 30(1) of the Constitution. It is

contended that only reasonable restrictions can be read into the

administrative powers of a minority educational institution and the exercise of

such powers should be targeted in such a way that the right of administration

can be exercised for the betterment of the institution.

5. As per Rule 6 of the Code of Conduct Rules, the Principal has

been conferred the powers to initiate disciplinary action against a delinquent

student and a detailed procedure is prescribed. The Principal is required to

report the matter to the College Council and after seeking their views, a

competent body of persons has to be appointed to enquire into the

allegations and submit a report. The enquiry officer/s is required to conduct

the enquiry by fully adhering to the principles of natural justice and the

consequent report is to be placed before the Principal, who is entitled to

impose the punishment. If the aforesaid procedure is complied with in its

letter and spirit, the said order would be absolute and cannot be tinkered

with. The grant of powers to the BASG to set aside, modify or cancel the

order would create inroads into the right guaranteed to the minority

institutions under the Constitution of India. It is on these contentions that this

writ petition has been filed seeking the following reliefs:

i) Declare that the Board of Adjudication of the Students Grievances has no authority to adjudicate the grievances of students pertaining to any disciplinary proceeding initiated or action taken against them by the Principals of the petitioners' institutions;

ii) Declare that Rule 9 of the Mahatma Gandhi University Students' Code of Conduct Rules, 2005 is not applicable to the petitioners' minority educational institutions;

6. A statement has been filed on behalf of respondents 2 and 3. It

is admitted that the petitioners have established Colleges and have secured

affiliation from the University in accordance with the provisions of the Act and

the Statutes. Statute 9(6) of the MGU requires the educational

agency/management to give an undertaking to carry out faithfully the

provisions of the Act, Statutes, Ordinances and Regulations and the aforesaid

undertaking is to be endorsed by the Principal of the College. The State can

prescribe regulations to ensure the excellence of the institutions and

prescription of standards shall not militate against the right of the minority to

administer the institutions. Regulations are made in the true interest of

efficiency of instructions, discipline, health, sanitation, morality and public

order. The regulations imposed by the University cannot be treated as

restrictions, but on the other hand, the same would secure the proper

functioning of the institution in matters of education. A minority institution

affiliated with the University cannot be allowed to fall below the standard of

excellence expected of an educational institution under the guise of exclusive

right of management and refused to follow the general pattern. The

regulations issued by the University are applicable to all students studying in

affiliated colleges and it would not be possible to have two regulations; one

for a minority-run college and the other for affiliated colleges. The Code of

Conduct Rules, 2005 is brought into force with the object of maintaining and

enforcing good conduct in the classrooms and campus in affiliated colleges,

Departments of Teaching and Research and Self-financing schools of the

M.G.University. As per the provisions of the BASG, the Principal has ample

power to impose fines, issue compulsory transfer certificates and also dismiss

the student from the College. As per Rule 9, a right of appeal is provided to a

student against whom disciplinary orders have been passed before the BASG.

The BASG acts as a forum to adjudicate and redress any grievance of the

students of the college who may for any reason be aggrieved other than by

the act of the court. It is further contended that the BASG cannot be

construed as a mechanism for interfering with the administration of the

college as the composition of the BASG includes the Principal of the College.

7. I have heard Sri.Isaac Kuruvila Illikkal, the learned counsel

appearing for the petitioners and Sri. Surin George Ipe, the learned counsel

appearing for the respondent University and the learned Government Pleader.

8. Sri. Issac Illikal, the learned counsel appearing for the petitioners

submitted that the question is whether an educational institution established

and managed by a religious minority is bound by Rule 9 of the Conduct Rules,

2005 which enables a body constituted by the University to overturn the

decision of the Principal of the College. According to the learned counsel,

under Article 30 (1) of the Constitution, all minorities, whether based on

religions or language, shall have the right to establish and administer

educational institutions of their choice. Emphasizing the words 'of their

choice', it is submitted by the learned counsel that the key to understanding

the meaning of the provision lies in the words 'of their choice' and according

to him, the content of the clause is as wide as the choice of the particular

community may make it. The learned counsel would refer to the law laid

down in St. Xavier College v. State of Gujarat [AIR 1974 SC 1389],

N.Ammal v. Manager, EMJAY High School [(1998) 6 SCC 674] and DAV

College v. State of Punjab [AIR 1971 SC 1739] and it is submitted that

only reasonable regulations for the benefit of the institutions as the vehicle of

education and consistent with national interest can be imposed. It is

contended by the learned counsel that by granting extensive powers to the

BASG, serious inroads have been placed on the right of administration of the

minority institution. It is submitted that the respondents can impose

regulations only to enhance the efficiency of instruction, discipline, health,

sanitation, morality and public order and such other regulations which are not

restrictive on the substance of the guaranteed right under Article 30(1).

Reliance is placed on a judgment of the Apex Court in Sidhrajbhai Sabhai

and Ors v. State of Bombay and Another [1963 (3) SCR 837] and it is

submitted that any regulation which may amount to curtailing the rights of

the minority institution must satisfy a dual test, i.e., the test of

reasonableness and that it is regulative of the educational character of the

institution and is conducive to making the institution a capable vehicle of

education for the minority community or other persons who resort to it.

9. The learned counsel would further contend that the character of

the institution depends on the right choice of the Principal. Rule 9 which

confers an unbridled right to the BASG to unsettle the action taken by the

Principal/Manager of the College cannot be categorised as a regulation to

serve the interest of the teachers or to ensure discipline and fairness in

administration. There is complete interference with the disciplinary power of

the minority institution. According to the learned counsel, though some

regulations can be imposed on the exercise of the right of administration, any

"restriction" styling as a regulation that would amount to the destruction of

the right granted to the minority institution is impermissible. The post of

Principal is of pivotal importance in the life of a college, around whom wheels

the tone and temper of the institution, on whom depends the continuity of its

traditions, maintenance of discipline and the efficiency of its teaching. In

matters relating to discipline, the process of the decision must be left to the

institution. Reliance is also placed on a judgment of the Apex Court in

Indian Medical Association v. Union of India and others [(2011) 7

SCC 179] and it was urged that conferment of arbitrary and unguided powers

on an outside authority would be destructive of the right of the management

of the institution by the minority under Article 30(1).

10. Inviting the attention of this Court to Rule 9 of the Code of

Conduct Rules, 2005, it is submitted that a detailed procedure has been

prescribed as per Rule 6 for the imposition of punishment on a student. On

receiving a complaint, if the Principal is satisfied that an act of indiscipline or

violation of Rule 5 of the Conduct Rules has been committed by a student, an

enquiry can be ordered to be conducted by a competent teacher/teachers and

the enquiry officer is required to conduct an enquiry by adhering to the

principles of natural justice. The Principal on receipt of the enquiry report is

entitled to impose punishment of fine, issue compulsory TC or dismiss the

student from the College. Any student, who is aggrieved by the disciplinary

order, is entitled to prefer an appeal before the BASG and the said authority

will have the power to set aside, modify or cancel the order. According to the

learned counsel, the BASG has been categorised as a higher authority over

the management and the said authority has been conferred with blanket

powers to overturn the orders passed by the Principal. Relying on the

judgment of the Apex Court in All Bihar Christian Schools Association

and Another v. State of Bihar and Ors [(1988) 1 SCC 206], it is submitted

that when the Principal acts strictly in terms of the provisions of the Code of

Conduct Rules, 2005, investing of powers on an outside authority to overturn

the order would tantamount to infringement of rights of the institution under

Article 30(1). According to the learned counsel, grant of such unguided

powers is clearly violative of the rights granted to the institution and even if

any powers were to be granted to the BASG, it could only be to ascertain as

to whether the disciplinary proceedings had been taken in accordance with

the rules and no more. The disciplinary action taken against an erring

student/s is purely an administrative function of the College and under no

circumstances could regulations be made to curtail the same, contends the

learned counsel. The University has no power to interfere with the

administration of the college or into the disciplinary action taken against a

student or the staff, submits the learned counsel. The learned counsel points

out that numerous are the situations wherein, on political considerations

interference is made by the BASG which would seriously hamper the power

and authority of the Principal to take action for maintenance of discipline in

the College. According to the learned counsel, other than prescribing

standards of teaching and the scholastic efficiency expected from Colleges,

conditions of employment of teachers, hygiene and physical training of

students, the regulations of the nature made in the instant case cannot be

imposed. Reliance is also placed on the judgment of the Apex Court in Lilly

Kurian v. Sr. Lewina [AIR 1979 SC 52], State of Kerala v. Rev. Mother

Provincial [AIR 1970 SC 2079], T.M.A. Pai Foundation v. State of

Karnataka [(2002) 8 SCC 481], P.A.Inamdar v. State of Maharashtra

[(2005) 6 SCC 535] to bolster his submissions. The learned counsel further

submitted that the Mahatma Gandhi University Act as well as the Mahatma

Gandhi University Students Code of Conduct Rules, 2005 are subordinate

legislations, the provisions of which cannot be employed to interfere

unreasonably with the constitutional rights of minority educational institutions.

The introduction of the Rules, according to the learned counsel, is

inconsistent with the provisions of the Mahatma Gandhi University Act as

matters relating to discipline could be brought only through an ordinance in

terms of Section 37 of the Act and not by Rules.

11. Sri. Surin George Ipe, the learned counsel appearing for the

University, submitted that the right to administer guaranteed by Article 30(1)

of the Constitution does not carry with it a 'right to maladminister'. It is urged

that while autonomy in administration means the right to administer

effectively and to manage and conduct the affairs of the institution, the

University will always have a right to see that there is no maladministration.

According to the learned counsel, the right to administer is to be tempered

with regulatory measures to facilitate smooth administration. Regulations that

will serve the interests of the students, to ensure discipline and fairness are

necessary for preserving harmony among affiliated institutions and are of

paramount importance under good administration. It is urged that if the

University has any role to play in the system of general education, its power

cannot be confined merely to the laying down of a prescribed standard of

education for minority educational institutions but should also extend to all

necessary measures to secure an orderly, efficient and sound administration

of such institutions. According to the learned counsel, the right under Article

30(1) forms part of a complex and interdependent group of diverse social

interests. All that is intended by imposing regulations is to ensure the

excellence of the institution in the interest of efficiency, discipline, morality

and public order. Under no circumstances can the minority institutions be

permitted to fall below the standard of excellence expected of an educational

institution under the cover of Article 30 of the Constitution. After having

secured affiliation from the University, the petitioners irrespective of their

status are required to have a uniform code of ethics regarding the conduct of

students and no exception can be granted to them. It is further submitted

that the BASG cannot be construed as a mechanism to interfere with the

administration of the college. The learned counsel would also rely on various

observations in the very same decisions relied on by the learned counsel

appearing for the petitioner and it is submitted that some amount of

regulation is permissible to ensure that the Management acts within the

boundaries. According to the learned counsel, Rule 9 would satisfy the dual

test i.e., the test of reasonableness and the test that it is regulative of the

educational character of the institution and is conducive to making the

institution an effective vehicle of education for the minority community.

12. I have anxiously considered the submissions and have gone

through the materials and records made available.

13. The question for consideration is whether Rule 9 of the Code of

Conduct Rules, interferes with the autonomy of a Minority Educational

Institution and whether it would infringe the Constitutional right guaranteed

to the institutions under Article 30(1) of the Constitution of India.

14. It is not disputed that the petitioners are minority institutions

who are entitled to claim the benefit of Article 30(1) of the Constitution of

India. Article 30 (1) reads thus.

30. Right of minorities to establish and administer educational institutions.--(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

15. We have a long line of celebrated judgments where the Apex

Court, after threadbare analysis of Article 30 of the Constitution, has

examined the reasonableness of the regulatory measures that the State may

seek to impose on the functioning of minority educational institutions. By

examining these decisions, it may be possible to gauge the extent of

permissible interference a particular regulatory measure may constitute with

the right of the minority community to administer the institution.

16. In Re the Kerala Education Bill, 1957, [(1959) SCR 995], S

R. Das C.J. explained the content of the right under Art.30(1) of the

Constitution in these words:

"We have already observed that Art.30(1] gives two rights to the minorities. (I) 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."

17. It was held by the Apex Court that a regulation, which is not

destructive or annihilative of the core or the substance of the right under

Art.30(1), could legitimately be imposed.

18. In Rev.Sidhajbhai Sabhai v. State of Bombay [(1963) 3 SCR

837], while negativing the contention advanced on behalf of the State that a

law could not be deemed to be unreasonable unless it was totally destructive

or annihilative of the right under Art.30(1), it was held as under:

"The right established by Art 30(1) is a fundamental right declared in terms absolute. Unlike the fundamental freedoms guaranteed by Art.19, it is not subject to reasonable restrictions. It is intended to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their own choice. The right is intended to be effective and is not to be whittled down by so-called regulative measures conceived in the interest not of the minority educational institution, but of the public or the nation as a whole. If every order which while maintaining the formal character of a minority institution destroys the power of administration is held justifiable because it is in the public or national interest, though not in its interest as an educational institution, the right guaranteed by Art.30(1) will be but a 'teasing illusion', a promise of unreality."

It was held that it is open to the State to impose regulation in the true

interests 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 institution, in matters educational.

19. In Rev. Father W. Prost & Ors. v. The State of Bihar & Ors.

[(1969) 2 SCR 73] Hidayatullah C. J. while dealing with Art.29(1) and 30(1),

had observed thus:

"In our opinion, the width of Art.30 (1) cannot be cut down by introducing in its considerations on which Art.29(1) is based. The latter article is a general protection which is given to minorities to conserve their language, script or culture. The former is a special right to minorities to establish educational institutions of their choice. This choice is not limited to institution, seeking to conserve language, script or culture and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities That is a circumstance irrelevant for the application of Art.30(1) since no such limitation is expressed and none can be implied, although it is possible that they may meet in a given case."

20. The scope and ambit of the rights of minorities to administer

educational institutions under Article 30 (1) of the Constitution was lucidly

expounded by the Hon'ble Supreme Court in State of Kerala v. Very Rev.

Mother Provincial [1970 (2) SCC 417]. While holding some of the provisions

as ultra vires Article 30 (1) of the Constitution, it was held as follows in

paragraph Nos. 8 to 10 of the judgment.

8. Article 30(1) has been construed before by this Court. The first right is the initial right to establish institutions of the minority's choice. Establishment here means the bringing into being of an institution and it must be by a minority community. It matters not if a single philanthropic individual with his own means, finds the institution or the community at large contributes the funds. The position in law is the same and the intention in either case must be to found an institution for the benefit of a minority community by a member of that community. It is equally irrelevant that in addition to the minority community others from other minority communities or even from the majority community can take advantage of these institutions. Such other communities bring in income and they do not have to be turned away to enjoy the protection.

9. The next part of the right relates to the administration of such institutions. Administration means 'management of the affairs' of the institution. This management must be free of control so that the founders or their nominees can mould the institution as they think fit, and in accordance with their ideas of how the interests of the community in general and the institution in particular will be best served. No part of this management can be taken away and vested in another body without an encroachment upon the guaranteed right.

10. There is, however, an exception to this and it is that the standards of education are not a part of management as such. These standards concern the body politic and are dictated by considerations of the advancement of the country and its people. Therefore, if Universities establish syllabi for examinations they must be followed, subject however to special subjects which the institutions may seek to teach, and to a certain extent the State may also regulate the conditions of employment of teachers and the health and hygiene of students. Such regulations do not bear directly upon management as such although they may indirectly affect it. Yet the right of the State to regulate education, educational standards and allied matters cannot be denied. The minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions, or under the

guise of exclusive right of 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. Those propositions have been firmly established in the State of Bombay v. Bombay Education Society (1955) I SCR. 568, The State of Madras v. S.C. Dorairajan 1951 SCR. 525, In re the Kerala Education Bill 1957, 1959 SCR. 995, Sidharajbhai v. State of Gujarat (1963) 3 SCR 837, Katra Education Society v. State of U. P. & Ors., (1966) 3 SCR 328, Gujarat University, Ahmedabad v. Krishna Renganath Mudholkar & Ors. (1953) Suppt I SCR. 112 and Rev. Father W. Proost and ors. v. State of Bihar (1969) 2 SCR 73. In the last case it was said that the right need not be enlarged nor whittled down. The Constitution speaks of administration and that must fairly be left to the minority institutions and no more.

xxxx xxxxx

21. In Ahmedabad St. Xavier's College Society (supra), the

petitioner Society was established by a religious denomination known as the

Society of Jesus and formed with the object of taking over the College. The

Society as well as the College was established to provide higher education to

Christian students. The writ petition was filed challenging various provisions

of the Gujarat University Act, 1949 as amended on the principal ground of

violation of the fundamental rights under Article 30. It was contended that the

constitution of the governing body and selection committee and regulations

which regulated the dismissal, removal and termination of staff of the college

would infringe the constitutional right to administer the educational institution

in the manner of their choice. A Nine Judge Bench of the Hon'ble Supreme

Court considered the various questions and Hon'ble Chief Justice A.N.Ray,

who authored the majority judgment, laid down the scope and ambit of the

provisions. The relevant portions are extracted below for convenience.

"19. The entire controversy centers round the extent of the right of the religious and linguistic minorities to administer their educational institutions. The right to administer is said to consist of four principal matters. First is the right to choose its managing or governing body. It is said that the founders of the minority institution have faith and confidence in their own committee or body consisting of persons elected by them. Second is the right to choose its teachers. It is said that minority institutions want teachers to have compatibility with the ideals, aims and aspirations of the institution. Third is the right not to be compelled to refuse admission to students. In other words, the minority institutions want to have the right to admit students of their choice subject to reasonable regulations about academic qualifications. Fourth is the right to use its properties and assets for the benefit of its own institution.

20. 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 content of minority institutions similarly regulatory measures are necessary for ensuring orderly, efficient and sound administration. Das, C.J., in the Kerala Education Bill case 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 mal-administer.

xxxx xxxx xxxx

27. This Court in State of Kerala v. Very Rev. Mother Provincial case found Sections 48 and 49 of the Kerala University Act of 1969 to be infractions of Article 30. Those sections were found by this Court to have the 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 institution it founded. The governing body contemplated in those sections was to administer 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.

xxxxx xxxx xxxxx

30. Educational institutions are temples of learning. The virtues of human intelligence are mastered and harmonized 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. 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 color 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 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.

xxxx xxxx xxxxx

40. 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. These provisions are challenged on the ground that this amounts to invasion of the fundamental right of administration. It is said that the governing body of the college is a part of its administration and therefore that administration should not be touched. The right to administer is the right to conduct and manage the affairs of the institution. 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.

The right to administer is subject to permissible regulatory measures. 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 educational institutions and without displacing the management. If the administration has to be improved it should be done through the agency or instrumentality of the existing management and not by displacing it. Restrictions on the right of administration imposed in the interest of the general public alone and not in the interests of and for the benefit of minority educational institutions concerned will affect the autonomy in administration.

41. Autonomy in administration means right to administer effectively and to manage and conduct the affairs of the institutions. The distinction is between a restriction on the right of administration and a regulation prescribing the manner of administration. The right of administration is day to day administration. The choice in the personnel of management is a part of the administration. The university will always have a right to see that there is no mal-administration. If there is mal-administration, the university will take steps to cure the same. There may be control and check on administration in order to find out whether the minority institutions are engaged in activities which are not conducive to the interest of the minority or to the requirements of the teachers and the students. In 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 effect 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.

xxxxx xxxx xxxxx

47. In the field of administration it is not reasonable to claim that minority institutions will have complete autonomy. Checks on the administration may be necessary in order to ensure that the administration is efficient and sound and will serve the academic needs of the institution. The right of a minority to administer its educational institution involves, as part of it, a correlative duty of good administration.

xxxx xxxx xxxxx

90. We may now deal with the scope and ambit of the right guaranteed by clause (1) of Article 30. The clause confers a right on all minorities, whether they are based on religion or language, to establish and administer educational instructions of their choice. The right conferred by the clause is in absolute terms and is not subject to restrictions, as in the case of rights conferred by Article 19 of the Constitution. The right of the minorities to administer educational institutions does not, however, prevent the making of reasonable regulations in respect of those institutions. The regulations have necessarily to be made in the interest of the institution as a minority educational institution. They have to be so designed as to make it an effective vehicle for imparting education. The right to administer educational institutions can plainly not include the right to maladminister. Regulations can be made to prevent the housing of an educational institution in unhealthy surroundings as also to prevent the setting up or continuation

of an educational institution without qualified teachers. The State can prescribe regulations to ensure the excellence of the institution. Prescription of standards for educational institutions does not militate against the right of the minority to administer the institutions. Regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order, and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right, which is guaranteed : they secure the proper functioning of the institution, in matters educational [see observations of Shah, J. in Sidhrajbhai Sabbai [Sidhrajbhai Sabbai v. State of Gujarat (1963) 3 SCR 837. Further, as observed by Hidayatullah, C.J. in Very Rev. Mother Provincial [State of Kerala v. Very Rev. Mother Provincial, (1970) 2 SCC 417] , the standards concern the body politic and are dictated by considerations of the advancement of the country and its people. Therefore, if universities establish syllabi for examinations, they must be followed, subject, however, to special subjects which the institutions may seek to teach, and to a certain extent, the State may also regulate the conditions of employment of teachers and the health and hygiene of students. Such regulations do not bear directly upon management as such, although they may indirectly affect it. Yet the right of the State to regulate education, educational standards, and allied matters cannot be denied. The minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions, or under the guise of exclusive right of 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.

xxxx xxxxx xxxx

92. 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 that 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 educational institutions of their choice. The right conferred by Article 30(1) is intended to be real and effective and not a mere pious and abstract sentiment; it is a promise of reality and not a teasing illusion. Such a right cannot be allowed to be whittled down by any measure masquerading as a regulation. As observed by this Court in Sidhrajbhai Sabbai [Sidhrajbhai Sabbai v. State of Gujarat, AIR 1963 SC 540] , 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 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.

22. In Lilly Kurian v Sr. Lewina and Others [1979 (2) SCC 124],

the appellant Lilly Kurien was the Principal of a Christian Minority College in

the State of Kerala. She was dismissed from service after initiating disciplinary

proceedings. An appeal was filed before the Vice Chancellor invoking various

provisions of the ordinance framed by the Syndicate of the University of

Kerala in exercise of the powers under Section 19 (j) of the Kerala University

Act, 1957. Notwithstanding the dismissal order, Lilly Kurian continued to

function as the Principal of the College. While so, on the basis of certain acts

of insubordination alleged against her, an enquiry was ordered and she was

suspended pending enquiry by the Managing board. Lilly Kurian filed another

appeal to the Vice Chancellor against the order of suspension invoking the

Ordinance and the Vice Chancellor ordered status quo to be maintained.

While so, civil suits were instituted by the management and sister Levina was

appointed as substitute Principal. Though the trial Court as well as the

appellate Court dismissed the suit, the judgment was reversed by this Court

on various grounds. While dismissing the appeal, though on different grounds

it was held as follows in paragraph No. 36 of the judgment.

Protection of the minorities is an article of faith in the Constitution of India. The right to the administration of institutions of minority's choice enshrined in Art.30 (1) means 'management of the affairs' of the institution. This right is, however, subject to the regulatory power of the State. Art.30 (1) is not a charter for maladministration; regulation, so that the right to administer may be better exercised for the benefit of the institution is permissible; but the moment one goes beyond that and imposes, what is in truth, not a mere regulation but an impairment of the right to administer, the Article comes into play and the interference cannot be justified by pleading the interest of the general public; the interests justifying interference can only be the interests of the minority concerned.

23. In All Bihar Christian Schools' Assn. v. State of

Bihar [(1988) 1 SCC 206], the petitioner, a religious minority society

challenged the provisions of the Bihar Non-Government Secondary Schools

(Taking Over of Management and Control) Act, 1981 on the premise that the

provisions of the Act make serious inroads on the petitioners' right to

establish and administer educational institutions of their choice guaranteed

under Article 30 of the Constitution of India. Among other challenges raised

by the petitioner, they had also challenged Section 18(3) of the Act which lays

down that the managing committee of a minority institution shall have the

power to remove, terminate, dismiss or discharge a teacher with the approval

of the School Service Board, a creature of the Statute under challenge. It was

urged that the school Service Board has been imposed as a higher authority

over the management and if the board refused to grant approval to the

disciplinary action taken by the management against a teacher, the

management's right to administration would be adversely affected. While

considering the question, it was held as follows in paragraph No.14 of the

judgment.

14. Learned Counsel for the petitioner took serious objection to the provisions contained in clause (d) of Section 18(3) which lays down that the managing committee of a minority institution shall have power to remove, terminate, dismiss or discharge a teacher with the approval of the School Service Board. It was urged that School Service Board has been imposed as a higher authority over the management; if the Board refused to grant approval to the disciplinary action taken by the management against a teacher, the management's right of administration would be

affected adversely. The School Service Board enjoys blanket power on the management's right to take disciplinary action against its employees and therefore clause (d) infringes with the minority's right of management. We do not find any substance in the submissions. Indisputably power to remove, dismiss, terminate or discharge a teacher from service is an essential attribute of management's right but clause (d) does not invest that power on any outside agency. The power to take disciplinary action vests in the managing committee of the minority school. It is required to exercise that power in accordance with the rules framed by it. Clause (d) requires that the managing committee shall take approval of the School Service Board in removing, terminating, dismissing or discharging a teacher from service. The managing committee is not required to obtain prior approval from the School Service Board, instead it may seek approval of the School Service Board after taking action. The School Service Board while considering the question of granting approval does not enjoy any unlimited power. It is required to consider if the managing committee has taken disciplinary action in accordance with the rules framed by the managing committee itself. If the Board finds that the managing committee has taken action in accordance with rules the School Service Board has no option but to accord approval; but if the disciplinary action is taken contrary to the rules framed by the minority school itself, the School Service Board will be justified in refusing to accord approval. The School Service Board is not invested with any veto or blanket power without any guidance, on the other hand it has limited power and guidelines are prescribed for the exercise of such powers. Such a provision is reasonable to ensure that rules framed by the minority school are followed and security of employment of teachers is maintained and there be no arbitrary exercise of power. Clause (d) of Section 18(3) expressly provides that while considering the question of granting approval to the disciplinary action taken by the management of a minority institution the School Service Board shall scrutinize whether disciplinary proceedings had been taken in accordance with the rules and no more. Regulatory provisions requiring approval of

disciplinary action taken by the management of a minority institution have been upheld by this Court in a number of cases.

24. It was held that the power to remove, dismiss, terminate or discharge a teacher from service is an essential attribute of management's right. It is required to exercise that power in accordance with the rules framed by it. The School Service Board while considering the question of granting approval does not enjoy any unlimited power. It is required to consider if the managing committee has taken disciplinary action in accordance with the rules framed by the managing committee itself. If the Board finds that the managing committee has taken action in accordance with rules the School Service Board has no option but to accord approval; but if the disciplinary action is taken contrary to the rules framed by the minority school itself, the School Service Board will be justified in refusing to accord approval. The School Service Board is not invested with any veto or blanket power without any guidance, on the other hand it has limited power and guidelines are prescribed for the exercise of such powers. Such a provision is reasonable to ensure that rules framed by the minority school are followed and security of employment of teachers is maintained and there be no arbitrary exercise of power

25. In Bihar State Madarasa Education Board v. Madarasa

Hanfia Arabic College [(1990) 1 SCC 428], the State legislature of Bihar

enacted the Bihar State Madarasa Education Board Act (Act 32 of 1982)

providing for the constitution of an autonomous Board for development and

supervision of Madarasa Education in the State of Bihar. The Act empowers

the Board to direct, supervise and control Madarasa Education. The legislature

had enacted the Act with the primary purpose of providing an autonomous

educational authority for regulating the efficiency of Madarasa institutions

where studies are carried on in Arabic, Persian and Islamic studies. On the

premise that some of the Madarasa institutions aided and recognised by the

Board under the provisions of the Act failed to comply with the directions

issued by the Board with regard to payment of salary to teachers, the Board

in the exercise of its power under Section 7(2)(n) of the Act dissolved the

Managing Committee and appointed Ad Hoc Committee to manage the

institutions. The institutions contended that Section 7(2)(n) of the Act which

confers power on the Board to dissolve the Managing Committee of a

Madarasa is violative of Article 30(1) of the Constitution as it interfered with

their right of management of institutions, which plea was upheld by the High

Court. The matter was taken up before the Apex Court and it was held thus in

paragraph Nos. 5 and 6 of the judgment.

5. The above provision confers power on the Board to provide for constitution and dissolution of the Managing Committee of a Madarasa. There is no dispute that the respondent Madarasas are educational institutions established by the Muslim minority community. Article 30(1) of the Constitution protects the right of minorities to establish and administer educational institutions of their choice. The article in terms grants all minorities two rights (i) the right to establish and

(ii) the right to administer educational institution of their choice. The rights so granted are, however, not absolute; a minority institution obtaining financial aid and recognition is

subject to reasonable restrictions to ensure excellence in the institution. While minorities have a constitutional right to establish and to administer educational institutions, of their choice, they have no absolute right to maladminister, the State has right to impose regulations made in the interest of efficiency of institution's discipline, health, sanitation and public order even though such regulations may indirectly impinge on the exclusive right of administration and management of the institution. A minority institution seeking aid and recognition must be subject to regulatory provisions which are reasonable and consistent with Article 30(1) of the Constitution. A minority institution which does not seek aid or recognition from the State or the Education Board need not be subject to regulatory provisions. These principles have been settled by this Court in In Re the Kerala Education Bill 1957 [AIR 1958 SC 956], Sidharajbhai Sabhai v. State of Bombay [AIR 1963 SC 540], State of Kerala v. Very Rev. Mother Provincial [(1970) 2 SCC 417], Ahmedabad St. Xaviers College Society v. State of Gujarat [(1974) 1 SCC 717] , Lilly Kurian v. Sr. Lewina [(1979) 2 SCC 124] and All Bihar Christian Schools Assn. v. State of Bihar [(1988) 1 SCC 206].

6. The question which arises for consideration is whether Section 7(2)(n) which confers power on the Board to dissolve the Managing Committee of an aided and recognised Madarasa institution violates the minorities constitutional right to administer its educational institution according to their choice. This Court has all along held that though the minorities have the right to establish and administer educational institutions of their own choice but they have no right to maladminister and the State has power to regulate management and administration of such institutions in the interest of educational need and discipline of the institution. Such regulation may have an indirect effect on the absolute right of minorities but that would not violate Article 30(1) of the Constitution as it is the duty of the State to ensure efficiency in educational institutions. The State has, however,

no power to completely take over the management of a minority institution. Under the guise of regulating the educational standards to secure efficiency in institution, the State is not entitled to frame rules or regulations compelling the management to surrender its right of administration. In State of Kerala v. Very Rev. Mother Provincial [(1970) 2 SCC 417], Section 63(1) of the Kerala University Act, 1969 which conferred power on the government to take over the management of a minority institution on its default in carrying out the directions of the State Government was declared ultra vires on the ground that the provisions interfered with the constitutional right of a minority to administer its institution. Minority institutions cannot be allowed to fall below the standard of excellence on the pretext of their exclusive right of management but at the same time their constitutional right to administer their institutions cannot be completely taken away by superseding or dissolving Managing Committee or by appointing ad hoc committees in place thereof. In the instant case Section 7(2)(n) is clearly violative of constitutional rights of minorities under Article 30(1) of the Constitution insofar as it provides for dissolution of the Managing Committee of a Madarasa. We agree with the view taken by the High Court.

26. In view of principles laid down in the decisions above, it is

unambiguous that minorities based on religion or language, have fundamental

freedom to establish and manage educational institutions of their own choice,

but the State has the right to provide regulatory provisions for ensuring

educational excellence, conditions of employment of teachers, ensuring

health, hygiene, discipline and allied matters. Such regulatory provisions shall

not interfere with the minorities' fundamental right of administering their

educational institutions; instead they seek to ensure that such institution is

administered efficiently, and that the students who come out of minority

institutions after completion of their studies are well equipped with knowledge

and training so as to stand at par in their avocation in life without any

handicap. If regulatory provisions indirectly impinge upon minorities' right of

administration of their institution, it would not amount to interference with the

fundamental freedom of the minorities as the regulatory provisions are in the

interest of the minority institutions themselves. If the minority institution

seeks affiliation or recognition from the State or Education Board the State

has the right to prescribe syllabi and terms and conditions for giving such

affiliation or recognition or extending grants-in-aid. Minority institutions may

be categorized in three classes, (i) educational institutions which neither seek

aid nor recognition from the State, (ii) institutions that seek aid from the

State, and (iii) educational institutions which seek recognition but not aid.

Minority institutions which fall in the first category are free to administer their

institution in the manner they like; the State has no power under the

Constitution to place any restriction on their right of administration. This does

not mean that an unaided minority institution is immune from operation of

general laws of the land. A minority institution cannot claim immunity from

contract law, tax measures, economic regulations, social welfare legislation,

labour and industrial laws and similar other measures which are intended to

meet the needs of the society. But institutions falling within the second and

third categories are subject to regulatory provisions which the State may

impose. It is open to the State to prescribe conditions for granting recognition

or disbursing aid. These conditions may require a minority institution to follow

prescribed syllabus for examination, courses of study; they may further

regulate conditions of employment of teachers, discipline of students and

allied matters. The object and purpose of prescribing regulations is to ensure

that minority institutions do not fall below the standard of excellence expected

of an educational institution and that they do not fall outside the mainstream

of the nation. A minority institution must also be fully equipped with

educational excellence to keep in step with others in the State; otherwise the

students coming out of such institutions will not be fully equipped to serve the

society or the nation. While the State has every right to prescribe conditions

for granting recognition or disbursing aid, it cannot under the guise of that

power prescribe onerous conditions compelling the minority institutions to

surrender their rights of administration to the government. On the one hand,

the State is under an obligation to ensure that educational standards in the

recognised institutions must be according to the need of the society and

according to standards which ensure the development of personality of the

students in turning out to be civilized, useful members of the society, and to

ensure that the public funds disbursed to the minority institutions are properly

utilized for the given purpose. At the same time, the State has to respect and

honor minority rights under Article 30(1) in the matter of establishing and

carrying on administration of institutions of their choice. In order to reconcile

these two conflicting interests the State has to strike a balance and statutory

provisions should serve both the objects and such statutory provisions have to

withstand the test of Article 30(1) of the Constitution. These principles have

to be borne in mind in considering the question of validity of statutory

provisions relating to minority educational institutions. (See All Bihar

Christian Schools' Assn.)

27. We are in this case concerned with Rule 9 of the Mahatma

Gandhi University Students Code of Conduct Rules, 2005. Rule 9 provides to a

student, the right to prefer an appeal against an order passed by the

disciplinary authority before the Board of Adjudication of Students' Grievances

constituted under Chapter 27 of the Mahatma Gandhi University Statute 1997.

As per the Rules, the appellate authority has been conferred with the power

to set aside, modify or cancel the order, provided the appeal is found to be

genuine and filed within the period stipulated therein.

28. The Rules as is evident from the object was framed with a view

to maintaining and enforcing good conduct inside the classrooms and campus

in affiliated colleges, departments of Teaching and Research and self

Financing Schools of the Mahatma Gandhi University.

29. One of the contentions advanced by the petitioner is that the

Rules were brought in by the Syndicate of the Mahatma Gandhi University

exercising its powers under Section 41 of the Act of 1985. As per Section 41

of the act, the Syndicate has been vested with the powers to make Rules,

Bye-Laws, and Orders which are not inconsistent with the provisions of the

Act, the Statutes , the Ordinances, and the regulations. Section 41 reads thus:

Section 41 Rules, Byelaws and Orders

(1) The Syndicate shall have powers to make Rules , Bye-laws and Orders not inconsistent with the provisions of this Act, the Statutes , the Ordinances and the Regulations, for the guidance and working of Boards and Committees and other bodies constituted under the provisions of this Act or the Statutes or the Ordinances or the regulations and for regulating the procedure and conduct of business at meeting of any authority of the University other than senate (Provided that such rules, bye-laws or orders, which involve expenditure, shall be made only with the prior approval of the Government)

30. Thus the Syndicate has the powers to make Rules, Bye-laws and

Orders which are not inconsistent with the provisions of the Act, the Statutes,

the Ordinances and the Regulations. Such Rules are meant for the guidance

and working of Boards and Committees and other bodies constituted under

the provisions of this Act or the Statutes or the Ordinances or the regulations

and for regulating the procedure and conduct of business at meetings of any

authority of the University other than senate.

31. Section 37 of the Act confers power on the Syndicate to make

ordinances to provide for matters like levy of fees in colleges, residence and

discipline of students, workload and pattern etc. The said provision reads

thus:

Section 37: Ordinances

Subject to the provisions of this Act and the Statutes, the Syndicate shall have power to make Ordinances providing for all or any of the following matters, namely:-

(a). the levy of fees in colleges and other institutions, by the University;

(b). the residence and discipline of students;

(c). the workload and pattern of teaching staff in colleges

(d). the fixation of the scales of pay of various posts in the University and the terms and conditions of service of officers of the University:

Provided that no special pay or allowance or extra remuneration of any description whatsoever including ex-gratia payment or other benefits having financial implication shall be granted to any officer, teacher or other employee of the

University without the prior approval of the Government:

Provided further that no such prior approval of the Government shall be necessary for incurring any such expenditure of a non recurring nature subject to a maximum of ten thousand rupees in the aggregate in the financial year;

(e) all other matters which by this Act or the Statutes are to be, or may be provided for by the Ordinances.

32. Thus Section 37 of the Act leaves no doubt that the Syndicate

has powers to bring about Ordinances to provide for the residence and

discipline of students. Instead of bringing in an Ordinance, respondents rely

on the Mahatma Gandhi University Student's Code of Conduct Rules, 2005 to

regulate the discipline of the students.

33. The right under clause (1) of Article 30 is not absolute but

subject to reasonable restrictions which, inter alia, may be framed having

regard to the public interest and national interest of the country. Regulation

can also be framed to prevent mal administration as well as for laying down

standards of education, teaching, maintenance of discipline, public order,

health, morality. It is also the settled proposition that right to administer does

not amount to the right to maladministration and the right is not free from

regulations. Such regulatory measures are necessary for ensuring orderly,

efficient and sound administration. The regulatory measures can be laid down

by the State in the administration of minority institutions. The right of the

State is to be exercised primarily to prevent maladministration and such

regulations are permissible regulations. These regulations could relate to

guidelines for the efficiency and excellence of educational standards ensuring

the security of the services of the teachers or other employees, framing rules

and regulations governing the conditions of service of teachers and

employees and their pay and allowances and prescribing course of study or

syllabi of the nature of books etc. It will not be permissible to infringe the

constitutional protection in exercise of state policy or by its subordinate

legislation which will impinge upon the character or in any way substantially

dilute the right of the minority to administer and manage affairs of the

institution. As held by the Apex Court in Sindhi Education Society and

Another v. Chief Secretary, Govt. of NCTE of Delhi [(2010) 8 SCC 49], a

provision of law or a circular, which could be enforced against the general

class, may not be enforceable with the same rigors against the minority

institutions, particularly where it relates to establishment and management of

the institutions. They have autonomy in their administration. This would entail

the right to administer effectively and to manage and conduct the affairs of

the institution. There is a fine distinction between a restriction on the right of

administration and a regulation prescribed in the manner of administration.

What is required to be prevented is maladministration as regulatory measures

are necessary for maintaining the educational character and content of the

minority institution and for ensuring orderly efficient and sound

administration. Though power is vested in the State to frame regulations,

such power must operate within its limitation while ensuring that it does not

in any way dilute or impairs the basic character of the minority institution. Its

right to establish and administer has to be construed liberally to bring it in

alignment with the constitutional protection available to such institutions.

34. In Dental Council of India v Biyani Shikshan Samithi and

Another [2022 SCC Online SC 444], the Apex Court has encapsulated the

grounds on which subordinate legislation can be challenged. It was held as

follows in paragraph No. 15 of the judgment.

"15. There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognised that a subordinate legislation can be challenged under any of the following grounds:

(a) Lack of legislative competence to make the subordinate legislation.

(b) Violation of fundamental rights guaranteed under the Constitution of India.

(c) Violation of any provision of the Constitution of India.

(d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling

Act.

(e) Repugnancy to the laws of the land, that is, any enactment.

(f) Manifest arbitrariness/unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules)."

35. The contention is that the impugned Rules would be violative of

condition No.(b) above insofar as it infringes the right of the petitioners to

administer the educational institution as unbridled powers are granted to

interfere with the disciplinary action. It is also contended that the respondents

are not acting in conformance to the Statute as insofar as disciplining

students are concerned, it can only be by way of an ordinance and not by

way of Rules.

36. I find considerable merit in the contention advanced by the

petitioner that Rule 9 of the Mahatma Gandhi University Student's Code of

Conduct Rules, 2005 framed under Chapter 27 of the Mahatma Gandhi

University Statute, 1979, conferring appellate power on the Board of

Adjudication of Students Grievances on the disciplinary action taken by the

Principal of the minority institution would infringe the rights of the minority

institutions under Article 30(1) of the Constitution. If such rights had to be

conferred it could have been only by way of an Ordinance framed under

Section 41 of the Mahatma Gandhi University Act, 1985.

37. In view of the discussion above, the next question is to what

extent regulatory measures can be imposed by the University for maintaining

the educational character and content of the minority institution and for

ensuring orderly efficient and sound administration.

38. Rule 5 of the Rules, 2005 prohibits political activity inside a

campus. This Court in Sojan Francis v. MG, University [AIR 2003 Ker. 290]

considered the question whether an educational institution has the freedom to

prohibit political activities within the college campus and forbid students from

organizing or attending meetings and had answered in the affirmative.

39. As per Rule 6, the Principal of the College is made the disciplinary

authority in respect of the students in the College. The Rule says that if

misconduct as referred to in Rule 5 comes to the notice of the Principal and

the Principal is satisfied that there is prima facie material in the allegation

against a student, a suspension order can be passed and if the Principal is

satisfied that further enquiry is required, the matter is to be reported to the

College Council. After seeking the views of the council, a teacher/teachers is

to be appointed to conduct an enquiry and to submit a report. An enquiry

has to be conducted and a report is to be submitted before the Principal. The

Principal after perusal of the report is empowered to take appropriate action

and impose punishment such as a) imposition of fine, b) issuance of

compulsory transfer certificate and c) dismissal from the college. A student

against whom disciplinary order has been passed, has the right to prefer an

appeal to the Board for adjudication of students grievances as provided under

Chapter 27 of the Mahatma Gandhi University Statute, 1997. The Appellate

authority has the power to set aside, modify or cancel the order, provided the

appeal is found genuine.

40. At this juncture, it would be apposite to bear in mind, the

preeminent role of a Principal in a college. The Mahatma Gandhi University

Statutes has given considerable powers to the Principals of educational

institutions to enforce discipline in the college. Educational Institutions can lay

down code of conduct and guidelines to be enforced by the Principal of the

educational institution. This unenviable position of the Principal of the

educational institution is recognised and reiterated by this Court in several

decisions including in Sojan Fracis (supra). But for the vital and vibrant

presence of the Principal within the educational campus, no effective

administration would be possible in an educational institution. Around the

Principal wheels the tone and temper of the institution, on him depends on

the continuity of its traditions, the maintenance of discipline and the efficiency

of its teaching, as stated by the Full Bench of this Court in Rt. Rev. Aldo

Maria Patroni v. E.C. Kesavan (1964 KLT 791). Paragraph Nos. 27 and 28

of Sojan Francis reads thus:

27. Discipline is the bedrock on which an educational system is founded. In common parlance, discipline may be a state of order maintained by training and control a particular system of regulation or conduct, instructions and exercise, designed to train to proper conduct or action. Jurisprudentially examined it brings forth something more. "Obedientiaest legis essentia" obedience is the guiding force to sustain the law, rule, regulation or custom. Principal is charged with a duty to maintain the discipline. University Laws including Mahatma Gandhi University Statutes have given considerable powers to the Principals of educational institutions to enforce discipline in the college. Educational Institutions can lay down code of conduct and guidelines to be enforced by the Principal of the educational institution. The apex court in M.H. Devendrappa v. Karnataka State Small Industries Development Corporation, (1998) 3 SCC 732), while considering the scope of R. 22 of the Service Rules held that a proper balancing of interests of an individual as a citizen and the right of the State to frame code of conduct for its employees in the interest of proper functioning of the State is required. Rules which are directly linked to and are essential for proper discharge of duties of a public office would be protected under Art. 19(1)(g) of the Constitution in public interest. Reference may also be made to the decision in P. Balakoliah v. Union of India (AIR 1958 S.C.

232) and Kameshwar Prasad v. State of Bihar (AIR 1962 S.C. 1166).

28. Statute 20 of Chapter 24 of the Kerala University First Statutes, 1977 states that every college shall have duly constituted College Council properly representing the teaching

staff to advise the Principal in the internal affairs of the college. Statute 21 prescribes that in every college the Principal shall be the Head of the college and shall be responsible for the internal management and administration of the college. This unenviable position of the Principal of the educational institution is recognised and reiterated by this court in several decisions. But for the Principal's vital and vibrant presence within the educational campus no effective administration would be possible in an educational institution. Around the Principal 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, as stated by the Full Bench of this court in Rt. Rev. Aldo Maria Patroni v. E.C. Kesavan (1964 K.L.T.

791). Reference may also be made to the decision of this court in Thampan v. Principal, Medical College (1979 K.L.T. 45), Unni Raja v. Principal, Medical College, (1983) 2 ILR Kerala 754, Hira Nath Mishra v. Principal, Medical College ((1973) 1 SCC 805 : AIR 1973 S.C. 1260). The Apex Court in Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi, (1991) 2 SCC 716), held that the teacher occupies pride of place next below the parents as he or she imparts education and discipline in the students. On a proper balancing of individual freedom of the citizen and proper functioning of an institution, the institution is entitled to lay down their own code of conduct and the Principal of the educational institution has got a duty and obligation to enforce the code of conduct laid down and has got the power to do so and it is the legal obligation of the University authorities and the State Government to give him all support to enforce discipline in the educational institution.

41. This Court, after considering all aspects had held that on a

proper balancing of individual freedom of the citizen and proper functioning

of an institution, the institution is entitled to lay down their own code of

conduct and the Principal of the educational institution has got a duty and

obligation to enforce the code of conduct laid down and has got the power to

do so and it is the legal obligation of the University authorities and the State

Government to give him all support to enforce discipline in the educational

institution.

42. Now the question is whether the disciplinary proceedings validly

instituted by the Principal in terms of the Rules and a decision taken by him

to enforce discipline in the campus can be lightly interfered by the BASG.

Looking into Chapter 27, which provides for constitution of the Board for

Adjudication of Students Grievances, I find that the Constitution of the Board

are as follows:

2. Members: The Board shall consist of:

            a)    The Vice Chancellor as Chairman;

            b)    The dean of students;

            c)    Three members of who, one shall be a Principal of a College

nominated by the Vice Chancellor from among the members of the Syndicate.

            d)    The Chairman of the University Union, if any.

            e)    Two Chairman of the College Union nominated by the Vice
                  Chancellor;

            f)    Two members of whom, one shall be a Principal of a College

nominated by the Vice Chancellor from among the members of the Academic Council.

g) Registrar

43. Reading of the rules would show that even if the Principal

initiates the disciplinary proceedings and arrives at any of the findings which

he is competent to arrive at on the basis of an enquiry validly conducted in

strict adherence to the principles of natural justice, the BASG will have the

power to set aside, modify or cancel the same. In other words, power has

been granted to the BASG to veto the disciplinary action initiated by the

Principal for and on behalf of the Minority Educational Institutions. The BASG

has been imposed as a higher authority over the Principal and the right of

the Principal to maintain discipline in the campus can, in a given case be

interfered with by the BASG. This, according to me, would curtail the right of

the management to administer the institution effectively. A blanket power has

been granted to the BASG to interfere with the order passed by the Principal

even if the action taken is lawful and within the bounds of his power.

44. It would be yet another matter if the Principal acts in violation to

Rule 6 of the Conduct Rules and enforces discipline without following the

procedure or in violation of the principles of natural justice. In such

circumstances, it would be open to the BASG to exercise its powers and

interfere with the order by exercising revisional powers. As explained by the

Apex Court in Bihar Schools (supra) the BASG cannot enjoy any unlimited

power. It is required to consider if the principal has taken disciplinary action in

accordance with the rules. If the BASG finds that the principal has taken

action in accordance with the rules, approval will have to be accorded; but if

the disciplinary action is taken contrary to the rules framed, the BASG can

refuse to grant approval. In other words BASG cannot be invested with any

veto or blanket power without any guidance, on the other hand it can only

have limited power. By restricting the power, it can be ensured that the Rules

framed by the University are strictly followed and there is no arbitrary exercise

of power by the Principal for and on behalf of the minority educational

institution. While considering the appeal filed by the student, the BASG shall

scrutinize whether disciplinary proceedings had been taken in accordance with

the rules and no more. The disciplinary action taken by the institution in

accordance with Rule 5 and 6 of the Rules and whether the principles of

natural justice embedded therein have been complied with. If the BASG finds

that the action taken by the Principal is in accordance with the procedure

contemplated under the rules, the BASG shall grant approval. On the other

hand, if the BASG finds that the disciplinary action is taken contrary to the

rules framed by the minority institution, the BASG will be justified in refusing

to record approval. Rule 9 insofar as it confers the appellate authority to set

aside, modify or cancel the order passed by the Principal under Rule 6 shall

be made applicable only in the manner in which the same has been

interpreted by this Court.

45. In view of the discussion above, this writ petition will stand partly

allowed.

a) Rule 9 of the Mahatma Gandhi University Students Code of

Conduct Rules, 2005 framed under Rule 41 of the Mahatma

Gandhi University Act, 1985, insofar as it grants authority to the

Board of Adjudication of Students Grievances to set aside, modify

or cancel the order passed by the disciplinary authority of a

Minority Education Institution shall be read down to mean that the

BASG shall be entitled to refuse to grant approval only in cases

wherein the BASG finds that the disciplinary action taken by the

institution is contrary to the procedure prescribed under Rule 6 of

the Rules of 2005. If action is taken in consonance with the

procedure prescribed as per the Rules, the BASG shall be bound

to grant approval.

b) It is made clear that it would be open to the University to bring

out an Ordinance under Section 37 of the Mahatma Gandhi

University Act, 1985 to regulate the residence and discipline of

the students.

c) The action taken by the BASG till date shall not be affected by the

declaration above.

Sd/-

RAJA VIJAYARAGHAVAN V,

JUDGE PS/7/3/2021

APPENDIX OF WP(C) 2345/2013

PETITIONER EXHIBITS

EXHIBIT P1 PHOTOCOPY OF THE CERTIFICATE ISSUED BY THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS TO THE COLLEGES UNDER THE 1ST PETITIONER DATED 19.12.2011.

EXHIBIT P1(a) PHOTOCOPY OF THE CERTIFICATE ISSUED BY THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS TO THE 2ND PETITIONER'S COLLEGE DATED 06.04.2009

EXHIBIT P1(b) PHOTOCOPY OF THE CERTIFICATE ISSUED BY THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS TO THE 3RD PETITIONER'S COLLEGE DATED 16.11.2011

EXHIBIT P1(c) PHOTOCOPY OF THE CERTIFICATE ISSUED BY THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS TO THE 4TH PETITIONER'S COLLEGE DATED 03.03.2011

EXHIBIT P1(d) PHOTOCOPY OF THE CERTIFICATE ISSUED BY THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS TO THE 6TH PETITIONER DATED 20.08.2009

EXHIBIT P1(e) PHOTOCOPY OF THE CERTIFICATE ISSUED BY THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS TO THE 8TH PETITIONER'S COLLEGE DATED 21.02.2012

EXHIBIT P1(f) PHOTOCOPY OF THE CERTIFICATE ISSUED BY THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL INSTITUTIONS TO THE 10TH PETITIONER'S COLLEGE DATED 28.09.2010

EXHIBIT P1(g) PHOTOCOPY OF THE CERTIFICATE ISSUED BY THE NATIONAL COMMISSION FOR MINORITY EDUCATIONAL

INSTITUTIONS TO THE 2ND PETITIONER'S COLLEGE DATED 15.07.2010

EXHIBIT P2 PHOTOCOPY OF THE CHAPTER 27 OF THE M.G.

UNIVERSITY STATUTES DEALING WITH BOARD OF ADJUDICATION OF STUDENT GRIEVANCES.

//True copy//

PS to Judge