Bombay High Court
The Hyderabad (Sind) National College ... vs The University Of Bombay And Others on 3 July, 1992
Equivalent citations: AIR1993BOM229, 1992(3)BOMCR712, AIR 1993 BOMBAY 229, (1992) 3 BOM CR 712
Author: Sujata Manohar
Bench: Sujata Manohar
ORDER Mrs. Sujata Manohar, J.
1. The first petitioner viz., the Hyderabad (Sind) National College Board is a public trust. The first petitioner owns and administers a number of educational institutions which are set out in paragraph 2 of the petition. About eleven colleges are managed and administered by the first petitioner. The first petitioner Trust was created by the Sindhi Community, which is a minority community in the State of Maharashtra. The material terms of the Memorandum of Association state that the objects for which the first petitioner Board is set up are, inter alia, (i) to promote secondary, university and technical education in India, (ii) to acquire and take over the exclusive management of the Rishi Dayaram and Seth Hassram National College, Bandra, Bombay and the science institute attached thereto and other institutions that may be opened hereafter by the said Board at Bombay or elsewhere in India and (iii) to establish, acquire, take over and manage for the purposes of promoting higher cultural and technical education in India, any educational institutions and centres. The control and direction of all educational institutions which are set up by the first petitioner Board is vested in the Board. From the very inception the members of the Board have always been members of the Sindhi Community. The petitioners, therefore, contend that the colleges set up by the first petitioner Board are minority educational institutions entitled to the protection of Art. 30 of the Constitution of India.
2. There is considerable force in this submission. As far back as in 1969 the Supreme Court in the case of W. Proost v. State of Bihar , has said that the width of Art. 30(1) cannot be cut down by introducing in it 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 i.e. Art. 30(1) is a special right to minorities to establish educational institutions of their choice. Therefore, these educational institutions need not be educational institutions which are set up to conserve language, script or culture of the minority community. The minority community can establish and manage educational institutions of their choice which may impart secular education and may even admit members of other communities also. The protection of Art. 30(1) is not taken away. The same decision has been recently upheld by the Supreme Court in the case of St. Stephen's College v. the University of Delhi, . In view of this position in law, there is no serious dispute before us on the question whether the first petitioner Board is a minority institution or not. In our view, the first petitioner Board is an educational institution run by a minority community and hence it is entitled to the protection of Art. 30(1) of the Constitution.
3. In this context we have to consider the, effect of certain government resolutions and university circulars which are placed before us by the petitioners. The Government Resolution dated 30th March 1981 issued by Government of Maharashtra, Education and Employment Department, bearing No. USG-5079/151912-UNI-3, provides that in exercise of the powers conferred under sub-sec. (2) of S. 77-C of the Bombay University Act, 1974, and the other Universities Acts which are mentioned there, the Government is pleased to issue instructions to all the non-agricultural universities in Maharashtra in regard to the reservation of posts to be made in favour of Scheduled Castes and Scheduled Tribes while making appointments to teaching and non-teaching posts in the university, affiliated colleges and recognised institutions. The reservation so provided is 13% for Scheduled Castes, 7% Scheduled Tribes and 4% Nomadic Tribes and Vimukta Jatis. There are other instructions in the above circular which are not material for our present purpose.
4. The University of Bombay thereafter issued a circular dated 8th May 1982, in pursuance of the above Government resolution dated 30th March 1989, stating that in view of the above Government resolution the Vice-Chancellor of the University of Bombay, in exercise of the powers conferred upon him under S. 11(6)(b) of the Bombay University Act, 1974, had directed for 24% reservation of teaching and non-teaching posts in the university and non-Government affiliated colleges in favour of the Scheduled Castes, Scheduled Tribes and Nomadic Tribes and Vimukta Jatis in the same proportion and subject to the same terms and conditions set out in the Government Resolution of 30th March 1981.
5. Thereafter the Government of Maharashtra issued another resolution dated 6th December 1983 by which the Government clarified that the measures contained in the Government Resolution of 30th March 1981 should not be enforced against minority, educational institutions. By the next. Government Resolution of 18th February 1984, however, in view of the circumstances which are set out in that resolution, it was provided that the resolution of 6th December 1983, which had clarified that the measures contained in Government Resolution of 30th March 1981 should not be enforced against minority educational institutions, should be treated as cancelled. There is a further Government Resolution dated 15th July 1986 also issued under S. 77-C(2) of the Universities Act, 1974 by which, on a review of the position in the circumstances set out in that resolution, the Government directed that the Government Resolution of 18th February 1984 was cancelled. In other words, the resolution stated that the original resolution of 30th March 1981, regarding the reservation of posts to be made in favour of Scheduled Castes and Scheduled Tribes while making appointments to teaching and non-teaching posts in the University, affiliated colleges and recognised institutions, should not be enforced against the minority institutions. This is the last circular which is current in the field.
6. The University of Bombay, however, by a circular of 18th March 1987 has reiterated that there should be reservation of posts for the Scheduled Castes and Scheduled Tribes in teaching and non-teaching posts of non-Government constituent colleges in terms of its earlier circular of 8th May 1982. The University of Bombay has issued a further circular dated 3rd March 1988 to the Principals of non-Government affiliated colleges to the effect, inter alia, that reservation of posts should be made in making appointments of full-time and part-time teachers in the non-Government affiliated colleges in the faculties set out in that circular. This circular has been received by the colleges managed by the first petitioner also.
7. The first petitioner has challenged these circulars of the University of Bombay on the ground that these circulars violate the protection given to the petitioners under Art. 30(1) of the Constitution. The petitioners rely upon a decision of a Division Bench of our High Court in the case of K. A. Hamid v. Mohd., Haji Saboo Siddik Polytechnic, and a judgment of a single Judge of this Court in the case of Fr. Anthony Mendonca v. State of Maharashtra, reported in 1985 Maharashtra Law Journal 148. We are not examining in detail the ratio laid down by the above judgments because our attention has been drawn to S. 77C(2) of the Bombay University Act, 1974 which provides as follows :
"77C(2). Notwithstanding anything contained in this Act, the State Government shall have power to give the University, from time to time, such directions as it may consider necessary in regard to categories of posts in which reservation of posts shall be made in favour of the members of the Scheduled Castes and Scheduled Tribes, percentage of the posts to be reserved for them, and any other matters connected with such reservation and the University shall comply with such directions."
As a result, the University of Bombay is bound to comply with the directions given to it by the State Government relating to categories of posts in which reservation of posts shall be made in favour of the members of the Scheduled Castes and Scheduled Tribes, and the percentage of the posts to be reserved for them in respect of matters connected with such reservation. The last such direction which has been given to the university under this provision is by Government Resolution of 15th July 1986. Under this Government Resolution the University has been directed not to apply the Government Resolution of 30th March 1981 prescribing reservations for Scheduled Castes and Scheduled Tribes in teaching and non-teaching posts to minority institutions. The university is, therefore, bound to carry out these instructions given by Government Resolution prescribing such reservations and the minority institutions from its orbit.
8. Mr. Radhakrishnan, learned counsel for the university has, therefore, not contested the position that the university circulars of 18th March 1987 and 3rd March 1988 cannot apply to minority institutions and that the university cannot enforce such reservations against the minority institutions.
9. In the circumstances, we have not examined the question whether prescribing such reservations is violative of Article 30(1) of the Constitution nor have we gone into the question which was urged before us by the petitioners that the provisions in the above university circulars, under which an approval of the Vice-Chancellor is required, for recommendations for appointments made by toe minority institutions, are also violative of the fundamental rights of the minority community under Article 30(1) of the Constitution.
10. In the premises, rule is made absolute in terms of prayer (c) of the petition. There will be no order as to costs.
Order accordingly.