Bombay High Court
Krishna Chandra Sharma vs Sind Hyderabad National Collegiate ... on 29 June, 1987
Equivalent citations: 1987(3)BOMCR307
Author: P.B. Sawant
Bench: P.B. Sawant
JUDGMENT G.H. Guttal, J.
1. These are references made by the College Tribunal constituted under section 42-A of the Bombay University Act, 1974 (hereinafter referred to as the Act) raising an identical issue viz., whether section 42-B(1) of the Act is violative of Article 30(1) of the Constitution of India The Tribunal is constituted for the adjudication of disputes or differences between the employees and the management of the affiliated colleges or recognised institutions (other than those managed and maintained by the State Government or the University) connected with, or arising out of, dismissal or removal of an employee, or the termination of his services otherwise or reduction in his rank.
2. Almost an identical provisions is found in the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, (hereinafter referred to as the School Act) where under section 8(1), a School Tribunal is constituted for dealing with the same matters. Hence, we have permitted the petitioners in Writ Petition No. 3097 of 1986 and others in which the Constitution of the School Tribunal under the School Act is challenged on similar grounds, to intervene.
3. The relevant provisions of the Act are as follows :
"Section 42-A. (1) The State Government shall, after consultation with the University, by notification in the Official Gazette, constitute one or more Tribunals, to be called the College Tribunals, for the adjudication of disputes or differences between the employees and the Management of any affiliated College or Recognised Institution (other than the managed an maintained by the State Government or the University) connected with, or arising out of, the matters specified in section 42-B ; and different Tribunals may be constituted for different Colleges or Institutions or different classes of their employees.
(2) A Tribunal shall consist of one person only to be appointed by the State Government, after consultation with the University.
(3) A person shall not be qualified for appointment as a Presiding Officer of a Tribunal, Unless---
(a) he is holding or has held a judicial office not lower in rank than that of District Judge;
(b) he has practised as an Advocate for not less than ten years;
(c) he is holding or has held an office not lower in rank than that of Deputy Secretary to Government, Deputy Commissioner of Labour or Joint Director of Education in the State; or
(d) he is or has been a Principal of an affiliated College or Recognised Institution for not less than five years.
(4) The appointment of a person as a Presiding Officer of a Tribunal may be on a full-time or part-time basis, and for such period or periods, but not exceeding five years in the aggregate, as the State Government may, from time to time, in each case decide.
(5) The remuneration and other conditions of service of the Presiding Officer shall be determined by the State Government, after consultation with the University.
(6) The University shall make available to a Tribunal such ministerial staff as may be necessary for the discharge of its functions under this Act. x x x Section 42-B. (1) Notwithstanding anything contained in any law or contract for the time being in force, any employee (whether a teacher or other employee) in any affiliated College or Recognised institution (other than that managed and maintained by the State Government or the University) who is dismissed or removed or whose services are otherwise terminated, or who is reduced in rank, by the Management and who is aggrieved, shall have a right of appeal and any appeal against any such order to the Tribunal constituted under section 42-A :
Provided that, no such appeal shall lie to the Tribunal in any case where the matter has already been decided by a Court or Tribunal of competent jurisdiction or is pending before such Court or Tribunal on the date of commencement of the Maharashtra Universities (Second Amendment) Act, 1977, or where the order of dismissal, removal, otherwise termination of service or reduction in rank was passed by the Management at any time before the 1st day of July, 1974.
(2) Such appeal shall be made by the employee to the Tribunal, within thirty days from the date of receipt by him of the order of dismissal, removal, otherwise termination of services, or reduction in rank, as the case may be :
Provided that, where such order was made before the date of commencement of the Maharashtra Universities (Second Amendment) Act, 1977, such appeal may be made within sixty days from the date of commencement of the said Act (or from the date of appointment of the Presiding Officer of the Tribunal whichever is later.) (3) Notwithstanding anything contained in sub-section (2), the Tribunal may entertain an appeal made to it after the expiry of the said period of thirty or sixty days, as the case may be, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within that period.
(4) Every appeal shall be accompanied by a fee of fifty rupees, which shall not be refundable and shall be credited to the University Fund."
Section 42-C states that for the purpose of admission, hearing and disposal of appeals the Tribunal shall have the same powers as are vested in an Appellate Court under the Code of Civil Procedure, 1908 and shall also have the power to stay the operation of any order against which an appeal is made, on such conditions as it may think fit to impose, and such other powers as are conferred on it by or under this Act. Section 42-D then states that where the Tribunal, after giving reasonable opportunity to both parties of being heard, is satisfied that the appeal does not pertain to any of the matters specified in section 42-B or is not maintainable by it, or there is no sufficient ground for interfering with the order of the Management, it may dismiss the appeal. Where however the Tribunal decides that the order of dismissal, removal, otherwise termination of service or reduction in rank was in contravention of any law, contract or conditions of service for the time being in force or was otherwise illegal of improper, the Tribunal may set aside the order of the management, (a) to reinstate the employee on the same post or on a lower post as it may specify; (b) to restore the employee to the rank which he held before reduction or to any lower rank as it may specify (c) to give arrears of emoluments to the employee for such period as it may specify; (d) to award such lesser punishment as it may specify in lieu of dismissal, removal, otherwise termination of service or reduction in rank, as the case may be; (e) where it is decided not to reinstate the employee or in any other appropriate case, to give such sum to the employee not exceeding his emoluments for six months, by way of compensation, regard being had to loss of employment and possibility of getting or not getting suitable employment thereafter, as it may specify; or (f) to give such other relief to the employee and toobseerve such other conditions as it may specify having regard to the circumstances of the case. The section also gives power to the Tribunal to recommend to the State Government that any dues directed by it to be paid to the employee may be deducted from the grant payable to the management and be paid to the employee directly. The section further enjoins upon the management to comply with any direction given by the Tribunal within the period specified in the direction which has to be not less than two months from the date of the receipt of the direction by the management. Section 42-E makes the decision of the Tribunal final and binding on the employee and the management and states that no suit, appeal or other legal proceeding shall lie in any Court or before any other Tribunal or authority in respect of the matters decided by the Tribunal. Section 42-F provides for penalty to the management for failure to comply with the Tribunal's directions. Section 42-G bars the appearance of legal practitioner except with the special permission of the Tribunal.
4. On behalf of the management of the minority educational institutions a fourfold contention was raised. In the first instance it was contended that the provisions of section 42-B(1) read with the other provisions of the Act referred to above constitute an encroachment on the rights of the minorities to administer the educational institution of their choice which is a fundamental right guaranteed to them by Article 30(1) of the Constitution. Secondly, it was contended that the decision of the Supreme Court in Frank Anthony Public School Employees Association v. Union of India and others, hereinafter referred to as Frank Anthony's case for the sake of brevity, is not applicable to the facts of the present case because that case did not consider the earlier decision of the larger Bench in the Case of Lilly Kurian v. Sr. Tewina, . The third contention was that it is the ratio of the decisions of the larger Benches of the Supreme Court in the cases of St. Xaviers College v. State of Gujarat, and All Saints High School v. Government of Andhra Pradesh, which will apply to the facts of the present case and not the ratio in Frank Anthony's case. The last contention was that assuming that the decision in Frank Anthony's case is consistent with the earlier decisions of the Supreme Court, the provisions of the present Act are different from those of the Delhi School Education Act (18 of 1973) which fell for consideration in Frank Anthony's case.
5. Before we examine the validity of the provisions of the Act under attack in the light of the decisions of the Supreme Court, it is necessary to ascertain the precise law laid down by the Supreme Court on the subject. We should have thought that the decision of the Supreme Court in Frank Anthony's case had finally settled the law on the subject since that decision has, with respect, succinctly summarised the propositions of law laid down in all the prior decisions of the Court. The grievance made against the said decision that it has not referred to Lilly Curian's case is also not well-founded since it has in terms referred to all Saints High School's case where Lilly Curian's case had been referred to and discussed. What is further, the same argument viz. that Frank Anthony's case had not referred to Lilly Curian's case was advanced before the Supreme Court in a later case viz. Y. The Clamma v. Union of India, and was repelled. It is necessary in this connection to remember that the judgment in Lilly Curian's case was delivered by justice A.P. Sen who has also delivered the judgment in Y. The Clamma's case. The Court in Y. The Clammas case has, in terms held, firstly, that it was not necessary in Frank Anthony's case to refer directly to Lilly Curain's case since the Court had discussed all cases including Lilly Curian's case in All Saints High School's case which had laid down the propositions in question. Secondly, the Court has also held there that Frank Anthony's case has correctly summarised the position of law on the subject as laid down by the Supreme Court in the decisions pronounced till that date. In view of this authoritative pronouncement on the contention, it is not necessary for us to consider whether Frank Anthony's case correctly summarises the law laid down by the Court on the subject, notwithstanding the fact that it has not directly referred to Lilly Curian's case. This is of course on the assumption that there is an inconsistency between the propositions laid down in Frank Anthony's case and those laid down in Lilly Curian's case. We however do not see any inconsistency in the two decisions.
6. The law therefore which emerges from the decisions of the Supreme Court starting from in (Re : Kerala Education Bill)6, A.I.R. 1958 S.C. 956 to Y. The Clama v. Union of India, is as follows : (1) The tight guaranteed to religious and linguistic minorities by Article 30(1) is two fold to establish, and to administer educational institutions of their choice. The extent of this right is to be determined, not with reference to any concept of State necessity and general societal interests but with reference to the educational institutions themselves, that is, with reference to the goal of making the institutions effective vehicles of education for the minority community or other persons who resort to them. (2) It therefore follows that regulatory measures which are designed towards the achievement of the goal of making the minority educational institutions effective instruments for imparting education cannot be considered as impinging upon the said right. The question in each case is whether the particular measure is, in the ultimate analysis, designed to achieve such goal without nullifying any part of the right of management in substantial measure (3) The prescription of conditions of service which would have the effect of attracting better and competent teachers would not be consideration violative of the said right since such prescription does not jeopardise the right of the management to appoint teachers of their choice. The excellence of the instruction provided by an institution would depend directly on the excellence of the teaching staff, and that in turn would depend on the quality and the contentment of the teachers. Conditions of services pertaining to minimum qualifications of teachers, their salaries, allowances and other conditions of service which ensure security, contentment and decent living standard to teachers and which consequently enable them to render better service to the institution and the pupils cannot be said to be violative of the said right. (4) The management of a minority educational institution cannot be permitted under the guise of the said fundamental right, to oppress or exploit its employees any more than any other private employer. Oppression or exploitation of the teaching staff of an educational institution is bound to lead inevitably, to discontent and deterioration of the standard of instructions imparted in the institution affecting adversely the object of making the institution an effective vehicle of education for the minority community and/or other persons who resort to it. The management of a minority institution cannot complain of invasion of the fundamental right to administer the institution when it denies the members of the staff the opportunity to achieve the very object of the said right which is to make the institution an effective vehicle of education. The right to administer does not include the right to maladminister. (5) Administration means management of the affairs of the institution. The 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. There is, however, an exception to this and it is that the standards of education are not a part of the management as such. These standards concern the body politic and are dictated by considerations of the country and its people. Therefore, if Universities establish syllabi for examinations they must be followed, subject however to special subjects which the institution 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. Protection of the minorities is an article of faith in the Constitution of India. The right to the administration or institutions of minority's choice enshrined by the Article means 'management of the affairs' of the institution. This right is, however, subject to the regulatory power of the State. The Article is not a charter for maladministration, regulation, so that the right to administer may be exercise 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 interests of the general public. The interests justifying interference can only be the interests of the minority concerned. (6) Where the right to appeal against all kinds of disciplinary actions is vested in an outside authority like the Director of Education or Vice-Chancellor or any nominee of the Vice-Chancellor who is hardly expected to have the time to deal with such matters or any executive body of the University such as the Syndicate which by the very nature of its large composition is subject to pulls and pressures and is unsuitable to perform judicial function and to produce a speaking order, without any guidelines and without the opportunity for the management to be heard such right conferred on the employee and the corresponding power conferred on such outside agency amounts to interference with the fundamental right guaranteed to administer the educational institution. (7) Where however the appeal is not to any departmental official or body but to a Tribunal manned by a person who has held a judicial office and who is required to exercise his powers not arbitrarily but in the same manner as the Court of Appeal under the Code of Civil Procedure and where further the right of appeal to such body itself is confined to a limited class of cases such as those of dismissal, removal or reduction in rank and not to every dispute between an employee and the management, there is no invasion of the said fundamental right. Such limited right of appeal coupled with the character of the authority constituted to hear the appeal in the manner in which the appellate power is required to be exercised makes the provision for appeal perfectly reasonable. Such provisions are regulatory in nature and in the best interests of the quality of education imparted in the minority institutions and are calculated to make the institution an effective vehicles of education which is the object of the said fundamental right.
7, Shri Menezes appearing for the interveners brought to our notice a decision of Kerala Full Bench reported in Labour and Industrial Cases, 1980 (Volume I) St. J.T. College for Women, Ernakulam & others v. University Appellate Tribunal and others, which has taken a view which is to some extent inconsistent with the view taken by the Supreme Court as summarised above. In that case the appeal to the Tribunal was provided against all disciplinary actions major or minor against the employees. Although further the Tribunal was presided over by a judicial officer not below the rank of the District Judge, the Act did not define the exact scope of the Tribunal's powers and the manner in which the Tribunal was to exercise it. There was however a safeguard provided in the Act, viz. a statutory appeal against the decision of the Tribunal to the High Court. The Full Bench of the Kerala High Court struck down the provisions for the appeal not only on the ground that the appeal was provided against all manners of disciplinary action but also on the ground that the scope of the power to be exercised by the Appellate Authority and the ground on which the Tribunal was to interfere with the orders of the management were not specified in the statute book. It does not appear that this decision omitted was pointed out to Hon'ble the Supreme Court. However the view taken by the High Court is inconsistent to some extent with the view taken by the Supreme Court and with respect will have to be ignored.
8. They takes us to the attacks on the provisions of the Act. The first contention is that section 42-B(1) has made all disciplinary actions appealable and the appeal is not limited to the grievances arising out of dismissal, removal or reduction in rank. It is submitted that only these disputes are held by the Supreme Court to be within the permissible limits of review by an Appellate Authority such as the Tribunal in the present case, and hence to that extent the provisions of the section are bad in law. In support of this contention, reliance is placed on two expressions in the said section. The first expression is "or whose services are otherwise terminated". According to Shri Muchhala, the learned Counsel for the management, in the first instance, such expression is absent from the disputes cognizable by the Tribunal under the Delhi School Education Act which fell for consideration in Frank Anthony's case. Secondly, this expression not only takes within its sweep dismissal and removal but also termination of service by way of discharge simpliciter or on account of the expiry of the contractual period or retrenchment. Hence, it is contended, the provisions of the present Act go beyond the provisions of the Delhi School Education Act upheld by the Supreme Court. According to us, firstly, it is not correct to say that the Tribunal under the Delhi School Education Act has no jurisdiction to take cognizance of appeals arising out of "the termination of services otherwise" than dismissal or removal. Section 8(3) of the said Act makes no such distinction. Hence it is wrong to contend that similar provisions are not upheld by the Supreme Court. Secondly, the expression "removal" would include also cases of discharge simpliciter, retrenchment and termination of service by efflux of time. Hence the expression "or whose services are otherwise terminated" does not add to the category of cases which are otherwise covered by the expressions "dismissal" and "removal". Thirdly, it will be a misreading of the law laid down by the Supreme Court to hold that the Court wanted to make distinction also in the cases of termination of services, for the purposes of validating the provisions. The correct reading of the decisions of the Court will show that the Court has upheld of the provisions so long as they confer powers of review on the Appellate Tribunal in cases of major disciplinary actions. Whether the particular termination of service is by way of dismissal, removal or otherwise, has to be decided by the Tribunal. If it amounts to a disciplinary action or is not justified otherwise, whatever the management may choose to call it, the Tribunal will have powers to take cognizance of it. We, therefore, find no substance in the contention that the expression "or whose services are otherwise terminated" have widened the scope of disputes which are held by the Supreme Court as permissibly cognizable by the Appellate Tribunal.
The next contention was that the expression "and who is aggrieved" in the said section 42-B(1) has not confined the disputes cognizable by the Tribunal to the cases of dismissal, removal or termination of service otherwise or reduction in rank only, but was widened the scope of the cognizable disputes to include disputes arising out of all manners of disciplinary action. We are afraid that this reading of the said expression is not correct. The said expression has a reference to the employee who is aggrieved by either of the actions mentioned earlier viz. of dismissal or of removal or of termination of service otherwise or of reduction in rank as the case may be. The expression, according to us, has not been used to refer to an employee who is aggrieved by an action otherwise than any of the said disciplinary actions. Hence the fear expressed on behalf of the management is not well-founded. If it is necessary to make clear what is otherwise apparent, we may restate that the disputes which the Tribunal can take cognizance of under section 42-B(1) are only those which would arise either out of dismissal or removal or termination of service otherwise or out of reduction in rank and not any other dispute.
9. The second attack was on the constitution of the Tribunal itself under section 42-A(3) of the Act. The said provisions lay down qualifications of a person for appointment as a Presidency Officer of the Tribunal. As is clear from the provisions, the Presiding Officer must be a person who is holding or has held a judicial office not lower in rank than that of the District Judge or a person who is practising as an Advocate for not less than ten years. He may also be an individual holding or has held an office not lower in rank than that of Deputy Secretary to Government, Deputy Commissioner of Labour or Joint Director of Education in the State or who is or has been a Principal of an affiliated College or Recognised Institution for not less than five years. It is contended, and according to us rightly, that to impose persons mentioned in Clauses 42-A(3)(c) and (d) as presiding officers of the Tribunal is to make a mockery of the object of constituting the Tribunal and is also against the essence of the law laid down by the Supreme Court on the subject, The persons concerned are virtually from the executive breach of administration with no experience either of Court of law or of deciding matters otherwise judicially. The Tribunal is vested with the power to decide the disputes judicially and is vested with the same powers as are vested in an Appellate Court under the Code of Civil Procedure. The persons concerned will have no experience of Court procedure much less of the procedure under the Civil Procedure Code.
We are in complete agreement with this submission. It appears that though the Act was originally enacted in 1974 and was amended from time to time till 1983, it has not taken cognizance of the law laid down by the Supreme court on the subject. Now that the law has been crystallized and it has in terms been held that so long as an Appellate body, though outside, is manned by a judicial officer or persons familiar with judicial work, it will not constitute an encroachment on the rights of the minorities under Article 30(1), case ought to have been taken to see that it was presided over by a person who is familiar with judicial work or is qualified to hold judicial post. The Supreme Court has insisted upon this qualification as a basic safeguard against arbitrary and unwarranted interference with the right of management. The Court has also in terms held that vesting of the powers of reversing the orders passed by the management in such outside agencies as the Vice-Chancellor of the University or his nominee, a departmental body or officer constitutes an encroachment on the right of management. In view of the law laid down by the Supreme Court, we will have to hold that the provisions of section 42-A(3)(c) and (d) are in breach of the law and therefore void. The Government therefore shall not appoint any person from the categories mentioned in sub-clauses (c) and (d) of section 42-A(3) to preside over the Tribunal.
It is necessary to make clear that as far as the category of person mentioned in Clause 42-A(3)(b) is concerned, namely, Advocate who was practised for not less than ten years, although apparently it may look as if he has no judicial experience, it has to be remembered that an Advocate with a practice of seven years is qualified to be appointed as a District Judge while an Advocate with a practice of not less than 10 years, is qualified to be appointed as a Judge of the High Court. We therefore, see nothing wrong if an Advocate, as mentioned in the said clause, is appointed to preside over the Tribunal. Nor was the said provision challenged before us.
10. The next attack was against sub-section (4) of section 42-A which provides for the appointment of Presiding Officers of the Tribunal on part-time basis and also for such period or periods not exceeding five years in the aggregate as the Government may from time to time decide in each case. The appointment of Presiding Officers on part-time basis and for unspecified periods left to the discretion of the Government in each case, obviously maker their tenure precautious. They will not be in a position to devote their complete attention to the work in hand. What is worse, they will be reduced to the status of government nominees always looking forward to the government for further extensions o their tenure thus losing their independence in the process. The presiding officer must be independent of governmental as well as other influence in order to be able to discharge his function free from fear and favour. We find much force in this contention. We are of the view that if the Tribunal is not to be a mockery and is to judicially and independently of any external influences, the Presiding Officer of the Tribunal must have a fixed tenure which should be uniform in all cases. The appointment of the officer should also be on a full time basis, and no part-time appointment should be made. The tenure of office should further be of no less than three years to enable the officer to discharge his functions efficiently. Without these safeguards, the law laid down by the Supreme Court will not be observed in its spirit.
11. The further attack was on the provision for emoluments and other conditions of service of the Presiding Officer of the Tribunal made under sub-section (5) of section 42-A of the Act. The provision states that the emoluments and other conditions of service of the Presiding Officers of the Tribunal shall be determined by the State Government after consultation with the University. In accordance with the spirit of the law laid down by the Supreme Court the remuneration and other conditions of service of the Presiding Officer will have to be reasonable enough to keep the officer in sufficiently comfortable condition, and free from financial worries to enable him to devote his whole-hearted attention to the work in hand. Hence when and Advocate as mentioned in sub-clause (b) of section 42-A is appointed s the Presiding Officer, he should be given salary, allowances and other conditions of service which are available at least to the District Judge at the relevant time. Where a person is appointed from the ranks of the judicial officers, his salary and other service conditions should be protected and he should be entitled to salary and other conditions of service as may be modified from time to time for the category to which he belongs. Where the judicial officer appointed is a person who has held such office in the past, his salary and other conditions of service should at least be such as he was enjoying before he ceased to be such officer. This according to us will meet the requirements of the law.
Yet another attack was directed against the provision in section 42-A(1) whereunder the State Government is to constitute Tribunals after consultation with the University. We find that there is a good deal of substance in the grievance that University is hardly a body to tender advice on such appointments. In consonance with the view taken by a Division Bench of this Court it State of Maharashtra v. Labour Law Practitioner's Association, Tardeo, Bombay, 89 Bom.L.R. 120 and in view of the fact that the Tribunal so appointed is expected to work judicially, the appointments to the Tribunal should be made by the State, Government in consultation with the High Court and not with the University which cannot be said to be a proper authority to give advice in such cases. This is particularly so when we have held that no appointments to the Tribunal can made for the categories of persons mentioned in section 42-A(3)(c) and (d).
12. The last attack is against the provisions of section 42-D(2) to (4) which give powers to the Tribunal to give reliefs of various kind to the employee whose dismissal, removal, termination of service or reduction in rank is held to be wrongful, and also to give consequent directions to the management. It is contended that this provision is directly inconsistent with Article 30(1). In this connection it is also urged that the power given to the Tribunal to hear the appeal not only on law but also on facts and to set aside the management's order even on the ground of impropriety is wide enough to constitute an encroachment on the fundamental right of management. It is particularly with respect to this aspect of the Tribunal's power that a heavy reliance is placed on paragraphs 15, 37, 52 and 53 of the Supreme Court's judgment in Lilly Curian's case, and on paragraph 16 of the judgment of Chandrachud, C.J. in the case of All Saints High School, .
This attack ignores certain obvious facts. The powers of a Court of appeal under the Code of Civil Procedure, 1908 under section 107 read with Order XLI are wide enough and include the power not only to annual or set aside the order appealed against, but also to vary or modify it. The Appellate Court may also reframe issues or frame new issues or either remand the matter or take fresh or additional evidence itself. The Court has further power not only to go into the questions of law but also of fact, and to reappreciate the evidence on record and to substitute its finding of fact as well as its order. What is more, the grounds on which the Appellate Court can interfere include the impropriety of the order impugned. Thus once the Tribunal is vested with the powers of the Court of Appeal under the Civil Procedure Code, the powers enumerated in section 42-D(2) are implicit whether they are separately enumerated or not. Even without their detailed specifications in the said provision, they could have bee assumed. Section 42-C(1) confers the said powers on the Tribunal even otherwise.
In Frank Anthony's case as explained in The Clamma's case, such powers conferred on the Tribunal have been upheld by the Supreme Court. Section 11(6) of the Delhi School Education Act confers similar powers of the Court of Appeal on the Tribunal constituted under the said Act. Hence there is no scope for reagitation of the said point before us. What is further missed by such contention is that the particular observations in Lilly Curian's and All saints High School's cases have been made in the context of the authority and the extent and the nature of power which was conferred on that authority under the relevant statutes which fell for consideration there. In Lilly Curian's case the appellate powers were conferred on the Vice-Chancellor whereas in All Saints High School case, the said powers were vested in an officer to be designated by the State Government. The powers were further unguided and unchannelised and extended to the review of all manners of disciplinary actions, major and minor. It is against the background of this canvass that the said observations have been made. Unlike the said situation, in our case (as was the case in Frank Anthony's and The Clamma's cases) the Tribunal is to be presided over by an officer familiar with judicial work or is qualified to hold the judicial officer. The Tribunal can take cognizance of grievances arising out of limited class of cases only. Its powers are not unguided but regulated by the Code of Civil Procedure. We therefore find no substance in this contention.
13. We however find justification in the grievances of the employees that the fees of Rs. 50/- prescribed for filing appeal to the Tribunal under section 42-B(4) of the Act is very much on the high side. Since the appeals will invariably be by the employees, the fees should be reduced to Rs. 5/-. We do not think that the Government either desires to make profit, or to recoup its expenditure on the Tribunal, out of the fees. Even for preferring a writ petition in the High Court under Article 227 of the Constitution, and for enforcement of fundamental rights by a writ petition under Article 226, the fees prescribed are no more than Rs. 20/-. This observation is by way of a recommendation and has no reflection on the validity of the provisions for the fees.
14. We are impelled to observe that in this whole controversy between the rights of the minority institutions under Article 30(1) and the powers of the Government to regulate their management, the one who is forgotten is the student for whom the educational institutions exist. He pays fees, spends his time and energy, and the best part of his life attending school and college with a view to acquire the best possible knowledge, skills and talents that he can. He has a right to be taught by the best available teacher in the subject or subjects of his study. Correspondingly, there is a duty cast on the management to strive to secure the best available teachers that it can. Every measure calculated to help secure good teachers is legally defensible being in furtherance of the right of the student and the duty of the management while that which thwarts their fulfilment is indefensible.
We should have thought that the real intendment of Article 30(1) was to help the minorities to preserve and promote their religion, culture, language, literature, etc. as the case may be, and not to strike their own path in matters of general or common general education. The educational institutions run by the minorities also impart general education, and are attended not only by the students belonging to the particular minority running the institution but also by those belonging to other minorities as well as non-minority communities. Whether the student belongs to the minority or other communities, he has as much right to receive the best of general education as any other student. Without it, he will be unable in life to compete with others. His whole future career and life depends upon the quality of general education he receives. That right of his cannot be infracted by Article 30(1) nor is it the intention of the Article. The State has a duty to see that the students right as a member of the national community and as a citizen does not suffer, his competitive capacity is not effected and he is not reduced to a second class citizen. Hence measures aimed at maintaining a high standard of general education in pursuance of the said duty, must be viewed from the larger perspective of the student's right which in no way conflicts with Article 30(1). What the management of a minority institution does to impart education in the subject or subjects which are unique to the minority concerned may not be the concern of the State. Most of the students including the ones belonging to the minority concerned, may not even attend such tuition and yet their competitive capacity as citizens will not suffer. What the provisions of the statutes such as those under attack in the present case, do is to help maintain a particular standard of general education which should be the concern of the State. Thus viewed there is no conflict between such provisions and Article 30(1), which is designed to protect the permanent interests of the minorities and not the concerns of the floating managements of their educational institutions.
15. In the result, we answer the issue referred to our decision as follows:
Section 42-B(1) of the Bombay University Act, 1974 is not violative of Article 30(1) of the Constitution. However the State Government must appoint Presiding Officers of the Tribunal ---
(a) in consultation with the High Court;
(b) from the categories mentioned in section 42-A(3)(a) and (b), and not from the categories mentioned in section 42-A(3)(c) and (d);
(c) on full time basis and on a uniform fixed tenure which should not be of less than three years;
(d) on remuneration and other service conditions which should at least be on par with those of the District Judge or not less favourable than those which are or were available to the officer in the judicial post held by him.
In case a Presiding Officer is appointed in breach of conditions (a) to (d)., the appointment will be invalid.
16. Mr. Muchhala on behalf of the management applies for leave to the Supreme Court. All that we have done in the present case is to follow the ratio laid down by the Supreme Court in the cases decided so far. Hence we see no reason to give any leave to appeal to the Supreme Court. The application is therefore rejected.
17. We may make it clear that we have heard the interveners appearing in reference under the School Act only on points which were common viz. the constitution and composition of the Appellate Tribunal and the scope of its authority, etc. The rest of the points will be decided separately in those references.