Madras High Court
The Madras Christian College ... vs The University Of Madras, Rep. By Its ... on 20 March, 2002
Author: D. Murugesan
Bench: D. Murugesan
ORDER D. Murugesan, J.
1. The second petitioner was appointed as Principal of the Madras Christian College, Chennai on 31.05.1999 and the same was forwarded to the first respondent / University for approval by the first petitioner / management in their letter dated 31.05.1999. The said request of the first petitioner for approval was rejected by the impugned order of the first respondent dated 29.05.2000. It is against this order, the present writ petition has been filed.
2. The questions that arise for consideration in this writ petition are (1) Whether the second petitioner was appointed through direct recruitment or by way of promotion (2) Whether the second petitioner is eligible to be considered for the appointment to the post of Principal when he does not possess minimum 55% of marks in the Post Graduate degree and (3) Whether the first petitioner / a minority institution is empowered to make appointment for the post of Principal without there being a representative of the University in the College governing body to serve as a member of the Selection Committee.
3. The right of the minority institution to administer the educational institutions is protected under Article 30 of the Constitution of India wherein it is stated that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. The Supreme Court of India, in more than one case had considered the right of the minority institutions guaranteed under Article 30(1) of the Constitution of India. As early as in the year 1958, a Constitution Bench of the Supreme Court in the judgment reported in KERALA EDUCATION BILL, 1957, RE (A.I.R. 1958 S.C. 956) has observed that the right guaranteed under Article 30(1) is absolute and any law or executive direction which infringes the substance of that right is void to the extent of infringement. In the judgment reported in SINDHARAJBHAI ..VS.. STATE OF GUJARAT (A.I.R. 1963 S.C. 540) the above law was approved by another constitution bench of the Supreme Court, wherein the Supreme Court has observed as follows :
" The right established by Article 30(1) is a fundamental right declared in terms absolute. Unlike the fundamental freedoms guaranteed by Article 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 Article 30(1) will be but a "teasing illusion" a promise of unreality. 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 a 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 person who resort to it".
4. The right of the minority institutions to establish and administer the educational institutions came up for consideration before the Supreme Court in the judgment reported in ST. XAVIERS COLLEGE ..VS.. STATE OF GUJARAT wherein provisions contained in Section 33-A(1)(a) of the Gujarat University Act (50 of 1949) was considered. In that Act, it was stipulated 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. The Supreme Court ultimately held that the above provision contained in Section 33-A(1)(b) of the Act cannot be made applicable to the minority institutions as the recruitment of the Principal and members of the teaching staff of College shall vest with the college committee formed by the governing body of the College for selection of the teachers.
5. In the subsequent judgment of the Supreme Court reported in STATE OF KERALA ..VS.. MOTHER PROVINCIAL , it was observed, "Article 30(1) contemplates two rights which are separated in point of time. The first right is the initial right to establish institutions of minority's choice. It is 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. The next part of the right relates to the Administration of such institutions which means "management of the affairs" of the institutions. This management must be free of control so that the founders or their nominees can mould the institutions as they think fits, and in accordance with their ideas of how the interests of the community in general and the institutions in particular will be best served. There is, however, an exception that the standards of education are not a part of management as such. 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".
6. In N.AMMAD ..VS.. MANAGER, EMJAY HIGH SCHOOL AND OTHERS also considering the right under Article 30(1) of the Constitutions of India, guaranteed to the minorities institutions, the Supreme Court approved the mode of selection adopted by a minority institution, running a college on the following observation:-
"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".
7. The Supreme Court had in fact taken note of the observations made in the judgment reported in ALDO MARIA PATRONI ..VS.. E.C.KESAVAN wherein it is stated:-
"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".
8. A division bench of this Court reported in JAWAHAR COLLEGE STAFF ASSOCIATION, ETC., ..VS.. THE UNIVERSITY OF MADRAS AND OTHERS (1994 W.L.R. 84) while considering the provisions of Tamil Nadu Private Colleges (Regulation) Act, 1976 and considering the right of the minority institutions to fill up the vacancy in the post of Headmaster of a school has held that the University is not a selecting authority. The authority of the University is only to ensure that the selection of the Lecturers is made in accordance with the Rules governing the selection and appointment and the candidates selected and are eligible according to the qualifications prescribed by the University.
9. Recently, a Division Bench of this Court in the judgment reported in HEPSY BELL MOHAN ..VS.. STATE OF TAMIL NADU AND OTHERS (2000 (3) M.L.J. 397), while considering the right of the minority institutions to make appointment to the post of Principal, after placing reliance upon the judgment of the Supreme Court in N. AHMAD ..VS.. MANAGER, EMJAY HIGH SCHOOL has observed as follows:-
"It is now a settled position in law, in view of the Apex Court's judgment, that the minority school would be entitled to appoint a Principal of their own choice considering the importance of the post of the Principal even ignoring the seniority of the staff who are working. However, such appointment would have to be of only a person who holds adequate qualifications. That appears to be the only rider in the afore mentioned decision, cited supra."
10. An analysis of the above laws on the subject would lead to the conclusion that the right of the minority institutions to establish and administer the educational institutions protected and guaranteed under Article 30(1) of the Constitution of India cannot be interfered with by the University in the matter of selection of teachers. Moreover, the minority institutions are empowered to form their own methodlogy for selection to make the appointment to the post of Principal. However, the University is empowered to ensure that only eligible candidates are appointed for the post of Principal. On the above settled position of law, let me now consider the other points raised by the learned Senior Counsel for the petitioners.
11. The impugned order of rejection of the request of the first petitioner to approve the appointment of the second petitioner reads as follows:-
"With reference to the letter cited above, I am to inform you that the Syndicate of this University at its meeting held on 05.05.2000 has considered the approval of appointment of Dr. Alexander Mantramurti as Principal of Madras Christian College, Tambaram with effect from 01.06.1999 together with the order of the Madras High Court (W.P.No.5574 of 2000 and W.M.P.No.8461 of 2000) DATED 30.03.2000 received on 26.04.2000 and resolved that the appointment of Dr. Alexander Mantramurti as Principal of the Madras Christian College, Tambaram be not approved on the following grounds:-
(1) he has not secured the minimum of 55% marks in the PG Degree examination as prescribed by the Academic Council at its meeting held on 25.02.1995 for the post of Principal ;
(2) the college Governing Body has not drawn any charter of schedule for the selection of the Principal;
(3) the University nominee serving in the Madras Christian College Governing Body was not invited to serve as a Member of the Selection Committee.
(4) selection of Dr. Alexander Mantramurti as Principal of Madras Christian College, Tambaram was not placed before the Governing Body for its approval.
Since the selection of Dr. Alexander Mantramurti as Principal was made after open advertisement inviting applications from candidates "fulfilling the minimum required qualification prescribed by the Madras University" in the newspapers that appeared on 19.07.1998 and candidates from within and outside the Madras Christian College appeared for the interview, the appointment can be considered only as a direct recruitment. Therefore, he should possess at least 55% of marks in his M.A. degree with a minimum of 13 years of service in the lecturers cadre. However, it is noted that Dr. Alexander Mantramurti possess less than 55% of marks in his M.A. Degree and therefore, does not fulfil the minimum required qualification prescribed by the University as regards his educational qualification.
In communicating the above decision of the Syndicate, I am to inform you that the appointment of Dr. Alexander Mantramurti as the Principal of the M.C.C. Tambaram with effect from 01.06.1999 is not approved by the University on the above grounds.
I am, therefore, to request you to kindly appoint a qualified Principal in the place of Dr. Alexander Mantramurti imemdiately. The appointment should be made strictly according to the procedure prescribed and the fact of having done so should be reported to the University before the commencement of the next academic year 2000-2001.
The receipt of this communication may kindly be acknowledged.
Sd/-
Registrar / i.c"
12. Insofar as the first ground is concerned, it is the contention of the learned Senior Counsel that even though applications were also called for from eligible candidates for the post of Principal, after having found that no suitable candidates were available, the second petitioner, who was working in the same college was found suitable by the Committee and therefore, he was appointed to the post of Principal by way of promotion. As per the communication of the Registrar dated 19.07.1995, the Principal post may be filled up either by promotion or by direct recruitment through advertisement in leading dailies and the qualification prescribed is as follows:-
"BY PROMOTION :
For promotion, teachers who are on regular service in the concerned college or in any other college under the control of the educational agency, are eligible for appointment provided they are Selection Grade Lecturers with a minimum of 16 years of service in the Lecturer's cadre (Persons with Ph.D or M.Phil., will have service benefit of three years and one year respectively).
Seniority will be considered only where merit and ability are approximately equal.
"Merit" can be referred in terms of "Academic Excellence" and "ability" in terms of NCC, NSS, Dy.Wardenship and Co-curricular activities like organisation of Conference, Seminars, participation in National and International conferences."
13. In the Annexure to the letter dated 31.05.1999, a request was made for approval for the promotion and appointment of the second petitioner as Principal in Proforma, wherein in column No.5 as to the question of whether he has been recruited by Promotion / Direct recruitment, it is stated as "Promotion" (Selection). Therefore, the second petitioner was appointed as Principal only by way of promotion.
14. However, Mr.S.Sundar, learned counsel appearing for the respondents / University submitted that the first respondent having resorted to call for applications from open candidates, considered all the applications including the second petitioner and thereafter only the second petitioner was selected. In that event, the selection and appointment of the second petitioner to the post of Principal shall be considered only by way of direct recruitment. In that event, the eligibility norms prescribed by the Direct recruitment shall be applied to the second petitioner. According to the counsel, qualifications for direct recruitment candidates is that not less than 55% marks in P.G.Degree and therefore, the second petitioner who did not possess 55% marks in P.G.Degree course is not eligible to be made as Principal. I am unable to agree with the said submission of the learned counsel for the respondent since the appointment of the second petitioner was not made by way of direct recruitment and made only by way of promotion. Merely because the first petitioner has considered all the applications of the candidates along with of the second petitioner for the appointment to the post of Principal, it shall not mean that the second petitioner was appointed only by way of direct recruitment more particularly when it was not disputed that the second petitioner was serving in the same college and the requisition letter made by the first petitioner / University for seeking approval refused to the appointment only by way of promotion. Further, the minority institutions are entitled to adopt their own methodlogy in selecting the candidates for the post of Principal. Hence, ground number one in the impugned order is unsustainable.
15. Coming to the second reason adduced in the impugned order that the College governing body has not drawn any charter of schedule for the selection of the Principal, it is to be again rejected for the simple reason that it is for the minority institutions to adopt their own method for selecting the candidates and it is not for the University to insist that the procedure to be followed by the minority institution to select the candidates.
16. In regard to the third reason given in the impugned order that the University nominee serving in the College Governing Body was not invited to serve as a Mamber of the Selection Committee, it is again to be seen that such a reason cannot be insisted upon the minority institution, in view of the categorical pronouncement of the Supreme Court in the judgment (cited supra). A reference was made by the learned counsel for the respondent that the said condition was imposed only on the basis of one of the conditions of University Grant Commission insisted at the time when the first petitioner college was conferred autonomous status in the year 1978. Whatever be the conditions imposed by the University Grant Commission, the same cannot be insisted against the minority institutions in view of the right guaranteed under Article 30(1) of the Constitution of India and more particularly in view of the judgment . Hence, the said reason cannot also be sustained for rejecting the request of the first petitioner to approve the appointment of the second petitioner as Principal.
17. Lastly, it is stated in the impugned order that selection of the second petitioner as Principal in the Madras Christian College was not placed before the Governing Body for its approval. Learned Senior Counsel for the petitioners would in fact submitted that the first petitioner is the Governing body and in fact, the request for approval was made only with the governing body. The respondent also did not argue much on the ground since the appointment of the second petitioner as Principal was in fact placed before the governing body and the same was approved.
18. For the above discussion, all the four reasons in the impugned order in rejecting the approval of the second petitioner as the Principal and Secretary of the College cannot be accepted.
19. It is also to be noted that pursuant to the appointment of the second petitioner as Principal, he was approved to be the Secretary of the College by the proceedings of the Director of Collegiate Education made on 30.06.1999. However, the same was withdrawn by the Director of Collegiate Education for want of approval from the first respondent / University. The said approval of the Director would also indicate that the appointment of the second petitioner as Principal of the College was accepted by the second respondent, even though the said approval was withdrawn only for want of approval from the first respondent / University.
20. For all the above reasons, I find every force in the grievance of the petitioners in rejecting the request for approval of the second petitioner as Principal of Madras Christian College and accordingly, the impugned order of the first respondent dated 29.05.2000 is quashed and the first respondent / University is directed to accord approval for the appointment of the second petitioner as Principal within a period of one month from the date of receipt of copy of this order.
21. Accordingly, the writ petition is allowed. No costs.