Andhra HC (Pre-Telangana)
Anwarul-Uloom Junior College, Rep. By ... vs The State Of A.P. Rep. By The Principal ... on 29 December, 1995
Equivalent citations: 1996(2)ALT728
ORDER S. Dasaradharama Reddy, J.
1. These two writ petitions are connected and hence are disposed of by a common judgment. The main writ petition is W.P. No. 5060 of 1993 which may be taken up first. The respondent No. 3 was appointed as Typist on 25-7-1963 in the petitioner-college which is an aided private college. At the time of his appointment he gave his date of birth as 7-11-1936. Disciplinary proceedings were initiated against him on 27-6-1987 on the ground that in the Government Press where he worked earlier he has shown his date of birth as 5-4-1928 and hence he is guilty of misconduct. On the same day he was suspended, pending inquiry. Ultimately he was removed from service on 22-1-1991. Against the removal order the employee filed appeal to the Regional Joint Director who allowed the appeal on 10-7-1991 on the ground that permission of the competent authority was not obtained as required Under Section 79 of the Andhra Pradesh Education Act (hereinafter referred to as 'the Act'). Against this order the management filed appeal to the Government contending that it is a minority institution and hence permission of competent authority is not necessary under proviso to Section 79. The Government dismissed the appeal on 3-4-1993 holding that the petitioner received 100% grant from the Government and hence cannot be said to be minority institution. In the writ petition it is contended that the petitioner is a minority institution catering to the needs and the educational interests of muslim minority, that the A.P. Minorities Commission issued a letter on3-9-1985 certifying that it is a minority institution, that the Director of Intermediate Education also issued a letter dated 2-12-1992 to the same effect for the year 1990-91 and hence the permission of the competent authority as required Under Section 79 is not required. Both the Joint Director and the Government did not go into the merits of the case. It was also alleged that no notice of the hearing of the appeal was given to the petitioner before the dismissal of the appeal. In the counter affidavit the employee contends that the Minorities Commission has no power to declare the petitioner as minority institution, that under Rule 3 of the A.P. Minorities Educational Institutions (Establishment, Recognition and Regularisation) Rules, 1988 (hereinafter referred to as 'the Rules'), the Government has to prescribed statutory authority to give recognition as Minority Institution, on the criteria laid down in Rule 4 and pending issue of such notification the recognition authority shall be the Director concerned, namely, Director of Higher Education in the instant case. It is further averred by the third respondent that he is not guilty of any misconduct; that his date of birth is 7-11-1936 and that no charge sheet was issued and no inquiry was made.
2. During hearing of the writ petition, when the third respondent contended that even assuming that the petitioner is a Minority Institution, prior approval of the competent authority is required under Rule 8 (5) of the Rules, the petitioner filed W.P.M.P. No. 16255 of 1995 for raising additional ground questioning the validity of Rule 8 (5) as being ultra vires Article 30 of the Constitution and proviso to Section 79 (1) of the Act. As it is pure question of law, I permitted the petitioner to raise this ground. The third respondent filed counter stating that the proceedings of the Director of Intermediate Education dated 2-12-1991 according recognition to the petitioner for the year 1991 are illegal and without jurisdiction as he has no power to give a certificate with retrospective effect and that the application for recognition was made on 30-5-1991 subsequent to the date of removal of the third respondent. It is also contended that Rule 8 (5) is not inconsistent with proviso to Sub-section 1 of Section 79 of the Act or Article 30 of the Constitution. The Government also filed counter on the same lines.
3. From the above, two questions arise for determination, (i) whether the petitioner is a minority institution and, if so, from what date? and (ii) whether Rule 8 (5) is ultra vires Article 30 of the Constitution and proviso to Section 79 (1) of the Act?
Question No. 1:-
4. As the recognition of the minority institution is regulated by the Rules framed under the Act, the certificates issued by A.P. Minorities Commission cannot be relied upon. As the proceedings of the Director of Intermediate Education dated 2-12-1992 relied on by the petitioner refer to application dated 30-5-1991 submitted by the petitioner-institution, I direct the learned counsel for the petitioner to produce the same. The learned counsel for the petitioner submitted the relevant records. From the record it is seen that the petitioner has applied to the Director of Intermediate Education on 30-5-1991 requesting him to issue orders recognising the institution as a Muslim Minority Institution. In that application no request is made for issuing the certificate with effect from retrospective date. The certificate issued by the Director of Intermediate Education reads thus:-
"xxxxxx
2. The recognition accorded in para-1 above shall be valid for a period of one year i.e., 1990-91 subject to the following conditions:-
(i) Tuition fee should be collected @ Rs. 105/- p.a. only, (ii) Latest affiliation from the Board of Intermediate Education, Hyderabad, should be obtained.
(iii) Staff selection committee should be constituted as per Rules,
(iv) In the admission notice is should be categorically spelt out that institute is meant for religious minorities only,
(v) The recognition is subject to renewal once is one year by making application in the prescribed form (Form-I) to the expiry of the period of recognition,
(vi) wide publicity should be made that the institution belong to the religious minority and the students belonging to the religion only should apply for admission,
(vii) all the minority students applies should be given admission if they are otherwise qualified.
3. The renewal of recognition is subject to the conditions that the educational agency has been continuously complying with the criteria laid down under Rule-4 at least for the three out of the latest five consecutive academic years."
Relying on this, the learned counsel for the petitioner, Mr. Nalini Kumar, vehemently contends that recognition is effective from the years 990-91. But as rightly contended by Mr. Harinath, learned counsel for the third respondent, the conditions imposed are impossible of compliance and hence recognition could not have been meant to be effective from 1990-91. He refers especially to Clause 3 which says that the institutions must be continuously complying with the criteria laid down under Rule 4 at least for the three out of the latest five consecutive academic years. Apart from this, the Rules do not empower the authority to give certificate with retrospective effect. The Supreme Court in I.T.O. v. Punnose, 75 ITR 174 (SC), held that a notification issued by the Government empowering Tahsildars with the powers of Tax Recovery Officer with retrospective effect was bad as the parent Act (Income-Tax Act) did not enable such a retrospective notification to be issued by the Government. When the Government itself cannot give any notification with retrospective effect in the absence of relevant power in the Act, it applies with all the more force to orders, notifications or certificates issued by the inferior authorities like the Director of Intermediate Education. Thus, the certificate giving minority status to the petitioner-institution is effective only from2-12-1992, the date of issuance of the certificate.
5. The complaint of Mr. Nalini Kumar, learned counsel for the petitioner, is that the Government erred in holding that the petitioner lost its minority status as it was receiving 100% grant. It is not necessary to examine this aspect, since the petitioner became minority institution only with effect from 2-12-992 and the question of losing minority status as on 22-1-1991 does not arise.
Question No. 2:-
6. The next question is, whether even assuming that the petitioner is a minority institution's on 22-1-1991, Rule 8 (5) is valid. Section 79 (1) of the Act and Rule 8 (5) of the Rules read as follows:.
"79. Dismissal, removal or reduction in rank or suspension etc. of employees of private institutions. (1). No teacher or member of the non-teaching staff employed in any private institution (hereinafter at this Chapter referred to as the employee ) shall be dismissed, removed, or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges."
"Providing that no order of dismissal, removal or reduction in rank shall be passed under this sub-section against an employee other than an employee of a minority educational institution without the prior approval of such authority or officer as may be prescribed for different classes of private institutions."
Rule 8 (5):-
"The educational agency is empowered to remove, terminate, dismiss or discharge a staff member only with the prior approval of the Competent Authority, by following the rules and regulations prescribed by itself and got approved by the Competent Authority. The Competent Authority shall normally approve the action proposed by the educational agency unless it considers that the action proposed is against the principles of natural justice and contrary to the rules and regulations adopted by the management itself."
7. Mr. Nalini Kumar, learned counsel for the petitioner, contends that Rule 8 (5) is violative of proviso to Section 79 (1) and Article30 of the Constitution. His argument is that in view of the decision of the Supreme Court in All Saints High School v. govt. of A.P., , holding that any restriction imposed on the management of the minority institution in running its institutions will be violative of Article 30 of the Constitution, proviso to Section 79 (1) was enacted exempting minority institutions from the rule of obtaining prior sanction and hence such restriction cannot be imposed indirectly by way of rule, which is illegal as per the said decision and also another decision of the Supreme Court in St. Stephen's College v. University of Delhi, . On the other hand, Mr. Harinath, learned counsel for the third respondent, contends that in order to remove the defects pointed out by the Supreme Court in All Saints High School v. Govt. of A.P. (2 supra), the Government have framed Rules in 1988, which are in accordance with the two decisions of the Supreme Court. 8. Rule 8 is as follows:-
"8. Appointment of staff and disciplinary control:-The appointment to the teaching and non-teaching posts in the institutions functioning under minority community managements shall be made with the candidates selected by the Staff Selection Committee constituted by the respective managements for the purpose. The candidates sponsored by the Employment Exchange alone shall be entertained for interview for selection by the staff Selection Committee. If the Employment Exchange is unable to sponsor suitable candidates, the educational agency may make advertisements in the daily newspapers having wide circulation calling for applications from the candidates possessing requisite qualifications for appointment to various posts after subjecting them to interview and selection by the staff Selection Committee.
(1) It is open for the educational agency to constitute Staff Selection Committee on the lines prescribed by the Government for other private educational institutions or to adopt Staff Selection Committee of their own choice with or without a Government representative (however he shall be subject expert), in the latter case the management will not be eligible for financial aid from the Government.
(2) It is open for the educational agency to appoint candidates belonging to their own community or to those belonging to other communities in which case they will have to be treated on part with the candidates belonging to the concerned community in all respects. In either case the appointments made require scrutiny about their eligibility and followed by approval by the competent authority.
(3) The staff appointed shall be paid salaries at the rates prescribed and by following the procedure prescribed by the Competent authorities from time to time.
(4) (a) it is open for the educational agency to adopt the rules and regulations relating to the disciplinary control of staff prescribed by the Government for other non-minority institutions or to frame their own rules and regulations and abide by the same. The rules and regulations so framed shall not deviate from the usual norms and shall uphold the principles of natural justice. However in the absence of rules and regulations framed by the educational agency, those prescribed by the Government for other private educational institutions shall prevail.
(b) If the educational agency prefers to prescribe their own rules and regulations, they shall be framed and the approval of the competent authority obtained before making appointment of the staff. Any amendments to the rules and regulations so framed shall also have the approval of the competent authority. The competent authority can withhold approval of those rules and regulations and the amendments thereon only when, in his opinion they are not in conformity with the principles of natural justice and may adversely affect the service conditions of the staff and/or basing on which they have accepted the appointments, as the case may be.
(c) It is also open for the educational agencies of the existing minority educational institutions to frame such rules and regulations for their staff and obtain the approval of the competent Authority therefor pending which those prescribed by the Government shall prevail.
Rule 8 (5) has already been extracted.
9. In All Saints High School v. Govt. of A.P. (2 supra), Section 3 (1) of the A.P. Recognised Private Educational Institutions Control Act (11 of 1975) was struck down as violative of Article 30 of the Constitution. That sub-section reads as follows:-
"3 (1) Subject to any rule that may be made in this behalf, no teacher employed in any private educational institutions shall be dismissed, removed or reduced in rank nor shall his appointment be otherwise terminated, except with the prior approval of the competent authority; Provided that if any educational management, agency or institution contravenes the provisions of this sub-section, the teachers affected shall be deemed to be in service."
Sub-section 2 of Section 3 reads as follows:-
"3 (2). Where the proposal to dismiss, remove or reduce in rank or otherwise terminate the appointment of any teacher employed in any private educational institution is communicated to the competent authority that authority shall, if it is satisfied that there are adequate and reasonable grounds for such proposal, approve such dismissal, removal, reduction in rank or termination of appointment."
10. Chief Justice Chandrachud, striking down Section 3 (1) and (2) held as follows:-
Section 3 (1) is subject to any rules that maybe made on behalf of the matter covered by it. If the State Government were to frame rules governing the matter, there would have been some tangile circumstances or situations in relation to which the practical operation of Section 3 (1) could have been limited. But in the absence of any rules furnishing guidelines on the subject, it is difficult to predicate that, in practice, the operation of the Section will be limited to a certain class of cases only. The absence of rules on the subject makes the unguided discretion of the competent authority the sole arbiter of the question as to which cases would fall within the section and which would fall outside it.
Any doubt as to the width of the area in which Section 3(1) operates and is intended to operate, is removed by the provision contained in Section 3 (2), by virtue of which the competent authority "shall" approve the proposal, "if it is satisfied that there are adequate and reasonable grounds" for the proposal. This provision, under the guise of conferring the power of approval, confers upon the competent authority an appellate power of great magnitude. The competent authority is made by that provision the sole judge of the propriety of the proposed order since it is for that authority to see whether there are reasonable grounds for the proposal. The authority is indeed made a Judge both of facts and law by the conferment upon it of a power to test the validity of the proposal on the vastly subjective touchstone of adequacy and reasonableness. Section 3 (2), in my opinion, leaves no scope for reading down the provisions of Section 3 (1). The two sub-sections together confer upon the competent authority, in the absence of proper rules, a wide and untrammelled discretion to interfere with the proposed order, whenever, in its opinion, the order is based on grounds which do not appear to it either adequate or reasonable.
The form in which Section 3 (2) is couched is apt to mislead by creating an impression that its real object is to cast an obligation on the competent authority to approve a proposal under certain conditions. Though the section provides that the competent authority "shall" approve the proposed order if it is satisfied that it is based on adequate and reasonable grounds, its plain and necessary implication is that it shall not approve the proposal unless it is so satisfied. The conferment of such a power on an outside authority, the exercise of which is made to depend on purely subjective considerations arising out of the twin formula of adequacy and reasonableness, cannot but constitute an infringement of the right guaranteed by Article 30 (1).
I find it difficult to save Sections 3 (1) and 3 (2) by reading them down in the light of the objects and reasons of the impugned Act. The object of the Act and the reasons that led to its passing are laudable but the Act, in its application to minority institutions, has to take care that it does not violate the fundamental right of the minorities under Article 30 (1). Section 3(1) and 3 (2) are in my opinion unconstitutional insofar as they are made applicable to minority institutions since, in practice, these provisions are bound to interfere substantially with their right to administer institutions of their choice. Similar provisions were held to be void in very Rev. Mother Provincial D.A.V.College and Lilly Kurian. There is no distinction in principle between those provisions and the ones contained in Section 3(1) and 3 (2).
For these reasons, I am in agreement with Brother Fazal AH that Sections3 (1) and 3 (2) of the impugned Act cannot be applied to minority institutions, since to do so will offend against Article 30 (1)."
11. In St. Stephen's College v. University of Delhi (3 Supra), the validity of admission programme which provided for giving preference to Christian students fell for consideration. The Delhi University issued circular to all the unaided Colleges stating that the admission to B.A. vocational study course will be based on the merit of percentage of marks secured by students in the qualifying examination and the admission to B.Com. (Pass) and B.A. (Hons) and B.Com. (Hons) courses will be on the basis of marks. The Supreme Court held that the circulars are violative of the fundamental rights guaranteed under Article30. It was also held by the Court that if the uniform basis of marks secured in the qualifying examination is valid, it will amount to denial of right of the minority institutions .to admit students belonging to their own community, since unless some concession is provided to Christian students they will have no chance of getting into the College. Striking balance between Article 30 and 29 (2), the Supreme Court stated that the minority institution must make available at least 50% of the seats for annual admission to the members of the communities other than minority community.
12. As rightly contended by Mr. Harinath, learned counsel for the third respondent, Rule 8 (5) read with Sub-rule 4 provides sufficient safeguards for the freedom of the minority institutions in running their institutions. As provided by Rule 8 (4) (a), it is open for the educational agency to adopt the rules and regulations relating to the disciplinary control of staff prescribed by the Government for other non-minority institutions or to frame their own rules and regulations and abide by the same. The rules and regulations so framed shall not deviate from the usual norms and shall uphold the principles of natural justice and in the absence of rules and regulations so framed, those prescribed by the Government for other private educational institutions shall prevail. Under Rule 8 (4) (b), if the educational agency prefers to prescribe their own rules and regulations, they shall be framed and the approval of the competent authority must be obtained before making appointment of the staff. Any amendments to the rules and regulations so framed shall also have the approval of the competent authority, which can withhold approval of those rules and regulations only when, in his opinion they are not in conformity with the principles of natural justice or may adversely affect the service conditions of the staff. Under Sub-rule 5, the educational agency is empowered to remove, terminate, dismiss or discharge a staff member only with the prior approval of the Competent Authority, by following the rules and regulations prescribed by itself and got approved by the Competent Authority, which shall normally approve the action proposed by the educational agency unless it considers that the action proposed is against the principles of natural justice or contrary to the rules and regulations adopted by the management itself. The decision in All Saints High School v. Govt of A.P. (2 Supra) is more appropriate and relevant to the instant case. As already seen there were no rules made by the Government regulating the appointment and control of the staff in the minority institutions. That was a factor in holding Section to be bad as ultra vires Article 30 since the competent authority had the unbridled power to withhold approval to the proposal of the private educational institutions to dismiss, remove or reduce in rank any of its teachers. But this has been cured by Rule 8 of the A.P. Minority Educational Institutions Rules which has provided for adequate safeguards. Thus Rule 8 (5) is not ultra vires Article 30 (1) of Constitution of India.
13. The contention that Rule 8 (5) is contrary to proviso to Section 79 (1) of the Act is equally without substance. Had there been a specific provision in the Act that no prior approval of the competent authority shall be necessary for removal of teacher in a minority institution, it can perhaps be contended that the Rule cannot impose a condition which the main Act itself does not impose and accordingly the Rule is bad as prohibiting a thing which is permitted by the Act. But there is no such absolute exemption in the Act in favour of minority institution. Sub-section (1) only stipulates that no employee can be removed except on enquiry and giving opportunity of hearing. The impugned rule is made in exercise of the powers conferred on the Government Under Section 99. Merely because the proviso says that in the case of non-minority institution prior approval of competent authority is necessary it does not follow that such a condition cannot be imposed by way of Rule in the case of minority institution. No doubt, in the absence of Rule 8 (5) such an approval is not necessary by virtue of Section 79 (1) itself. In fact, such a condition could have been imposed even in the case of non-minority institution by way of Rule instead of proviso to the Section itself. As comprehensive Rules were framed in the year 1988 regulating the minority institutions the condition was imposed in Rule 8 (5), which cannot be said to be hit by Section 79 (1) of the Act.
14. The last submission of Mr. Nalini Kumar, learned counsel for the petitioner, is that the contract of personal service cannot ordinarily be specifically enforced, and that the Court would not normally give a declaration that the contract subsists and the employee, even after having been removed from service is deemed to be in service against the will and consent of the employer. He further contends that the Rule, however, is subject to three well recognised exceptions - (i) where a public servant is sought to be removed from service in contravention of the provision of Article 311 of the Constitution of India; (ii) where a worker is sought to be reinstated on being dismissed under the industrial law; and (iii) where a statutory body acts in breach or violation of the mandatory provisions of the statute, and relies on the decision reported in Vaish Degree College v. Lakshmi Narain, (1976) 2 SCC 58 and Dipak Kumar v. Director of Public Instruction, . This matter is no longer res integra. A Division Bench of this Court consisting of Their Lordships, Sivaraman Nair, J., and M.N. Rao, J., held that this Court can give relief under Article226 of the Constitution of India against managements of private educational institutions, which are recognised and governed by the A.P. Education Act and a teacher who complains of arbitrary termination of his services in violation of the protective provisions of the Act and Rules, is entitled to seek appropriate remedy in this Court. Both the decisions cited by the learned counsel for the petitioner are distinguishable as the appeals there arose out of the suits filed by the employees in Civil Court and in that context, interpreting Section 34 of the Specific Relief Act, the Supreme Court made the observations.
15. It was also contended by Mr. Nalini Kumar, that no opportunity of hearing was given by the Government before disposal of the appeal. Even assuming that it is correct, as the matter has been argued on merits in the writ petition, the petitioner is not prejudiced any way and remand to the Government serves no useful purpose, more so when the petitioner is challenging the validity of Rule 8 (5) which cannot be gone into by the Government.
16. Mr. Harinath, contended that giving wrong date of birth is no misconduct, as held by Rasiklal V. Patel v. Ahmedabad Municipal Corporation, . It is not necessary to examine this question since the merits of the inquiry were not gone into by the statutory authorities.
17. To sum up, as the petitioner was not a minority institution on 22-1-1991, the date of removal of the third respondent, the removal order is violative of proviso to Section 79 (1) of the Education Act. Hence, the removal of third respondent is bad. Even assuming that the petitioner was a minority institution, removal will be bad as it is violative of Rule 8 (5) of the A.P. Minorities Educational Institutions Rules, which is valid and constitutional.
18. Accordingly, the writ Petition No. 5060 of 1993 is dismissed with costs. Advocate fee Rs. 500/- (Rupees five hundred only).
19. W.P.No. 4685 of 1990 was filed by the employee after the suspension order was lifted pending inquiry, for a direction to the management to pay salary arrears with consequential benefits. During the pendency of the Writ Petition, the petitioner has been removed and the termination has been set aside by the appellate authority. As the same was confirmed in the other Writ, it follows that the employee is entitled to full emoluments from the date of suspension as held by this Court in K.S.S.N. Sarma v. Chief General Manager S.B.I., , wherein it was laid down that when once the order of removal is set aside, the employee is entitled to full emoluments. Thus, the employee who is said to have retired now, is entitled to all the benefits like arrears of salary, increments and other consequential benefits, which shall be paid by the fourth respondent within a period of one month from to-day. The Writ Petition is allowed with costs. Advocate fee Rs. 500/- (Rupees five hundred only).