Madhya Pradesh High Court
Sahib Shiksha Evam Samaj Kalyan Samiti ... vs The State Of Madhya Pradesh on 16 May, 2017
9
W.P. No.188/2017
16/05/2017
Shri Manuraj Singh, learned counsel for the
petitioner.
Shri Rohit Kumar Mangal, learned Govt. Advocate
for the respondent Nos.1 and 2/State.
Shri Vivek Patwa, learned counsel for the respondent no.2.
Heard.
2. The Petitioner before this Court "Sahib Shiksha Evam Samaj Kalyan Samiti" an institution/Society registered under the Society Registrikaran Adhiniyam, 1973 is running educational institutions with the name of Victoria College of Education and is an unaided and minority institution.
3. The respondent No.3/University is not approving the staff profile of college run by petitioner Samiti's and, therefore, the petitioner Samiti preferred W.P. No.8247/2013 seeking direction to the respondent No.3/University to exempt the petitioner Samiti from the purview of Statute No.28(College Code). On 15/07/2013, the writ petition was disposed of directing the respondent No.3/University to decide the representation of the petitioner Samiti. In compliance to the directions issued by this Court, the respondent No.3/University exempted the petitioner Samiti from the purview of Statue No.28.
94. On 21/04/2016, petitioner Samiti appointed its staff and submitted its Minutes of Selection Committee with staff profile for counter seal before the respondent No.3/University. Thereafter, a representation was submitted by the petitioner on 10/08/2016, but till today no action has been taken.
5. Learned counsel for the petitioner has submitted that the University has undoubtedly power to regulate the aforesaid minority educational institution also in the interest of discipline and excellence, but in that process, the right of the management cannot be taken away. He has also drawn our attention to the decision of the Apex Court in the case of T.M.A. Pai Foundation Case Vs. State of Karnataka (2002) 8 SCC 481 and Secretary Malankara Syrian Catholic College vs. T. Jose and others reported inn (2007) 1 SCC 386 and submitted that the final appointment of candidates for selection of post of lecturers/teachers and other staffs are the exclusive choice of the minority educational institution and the minority educational institution has availed the same in the matter of selection of a candidate, constitution of selection committee and the final appointment of the candidates selected for the aforesaid post.. The power and authority of the State is limited to the extent of prescribing minimum qualification.
6. The State Government or the respondent No.3/University has no authority to question the 9 selection committee constituted by the petitioner /institution for appointment of staff, nor any permission from the State Government and/or approval from the State Government /University is required, but the appointment has to be made in compliance to the UGC regulations laying down conditions of eligibility criteria and qualifications. He has also drawn our attention to the decision of the Chhatisgarh High Court in the case of St. Vincent Palloti College vs State of Chhatisgarh & ors. Reported in 2008(4) M.P.H.T. 89(CG) and submitted that the restrictions imposed by University is amounting to violation of its fundamental right under Article 30 of the Constitution of India and prayed that the writ petition be allowed.
7. Per Contra, Shri Vivek Patwa, learned counsel for the respondent No.3 has submitted that the prayer made by the petitioner Samiti is contrary to the provisions of Statue No.28 i.e. College Code framed under Section 35 and 36 of M.P. Vishwavidhyalalya Adhiniyam, 1973. The College Code is uniformly applicable to all the colleges recognized by the University in order to maintain the standard of education and equity amongst all the colleges recognized by the respondent No.3/University. He also pointed out that the petitioner /institute is recognized by the respondent No.3/University and, therefore, the College Code is applicable on the institute run by the petitioner Society. The exemption as claimed by the petitioner was not 9 provided by the respondent No.3/University. He has also drawn our attention to para - 34 of the order passed in W.P. No.4367/2016 in the case of Indore School of Social Work through Secretary, Governing Body - Rev. Manoj Charan vs. State of M.P. & two others on 2/02/2017 and prays for dismissal of the writ petition.
8. As per affidavit of Dr. S.B. Singh, Additional Director, Higher Education, Indore Division, Indore, the respondent Nos.1 and 2 / State adopted the reply filed by respondent No.3/University.
9. From the principles of law laid down by the Apex Court in the case of T.M.A. Pai Foundation Case(supra), P.A. Inamdar vs. State of Maharashtra(2005) 6 SCC 537 and St. Vincent Palloti College vs State of Chhatisgarh & ors. reported in 2008(4) M.P.H.T. 89(CG) it is manifestly clear that :-
Admissions of students to unaided minority educational institutions, where scope of merit-based selection is practically nil, cannot be regulated by the State or University concerned, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards and the State or University are not entitled to interfere with the right, so long as the admission to the unaided educational institutions is on transparent basis and the merit is adequately taken care of.
A minority institution may have its own procedure and method of admission as well as selection of students, but such a 9 procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit.
Statutory provisions regulating the facets of administration in the case of unaided minority educational institutions should be minimal. Condition of recognition and condition of affiliation by a University or Board have to be complied with, but in the matters of day-to-day management, like, appointment of staff, teaching and non-teaching both, and administrative control over them, the management should have the freedom and there cannot be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself and an opinion has been expressed that for redressing grievances of the employees of aided and unaided institutions, who are subjected to punishment or termination from service, a mechanism will have to be evolved and appropriate Tribunal could be constituted and till then the said Tribunal could be presided over by a judicial officer of the rank of District Judge.
10. In the present case, it is not in dispute that the petitioner / College who is affiliated by the respondent No.3/University has been established and administered by the Society registered under the Society Registrikaran Adhiniyam, 1973 and the same is recognized as minority institution. The petitioner / institution on 24/01/2016 submitted its Minutes of selection committee and the staff profile before the 9 respondent No.2. It is not the case of respondent No.3 that the petitioner / Institution have appointed the appointed staff which do not confer the minimum qualifications and eligibility for appointment of aforesaid post as prescribed by the University Grants Commission, therefore, we are of the view that the action of respondent No.3 in keeping the mater pending in exercise of power conferred under the Stature No.28 amounts to interference in the day to day management of minority education institution and is in violation of Article 30 (1) of the Constitution of India. Para 18, 19 and 20 of the laws laid down by the Division Bench of this Court in the case of St. Vincent Palloti College(supra) reads s under :-
18. Similarly, Statute-28 (College Code) particularly, Part-Ill, IV, Clauses 17 to 21, Clause 29, Part-VI and Clauses 30 to 32 which prescribes procedure for appointment of two representatives of the University and one nominee of the Government as Members of the Governing Body for managing the college; formation of college council;
appointment of secretary; procedure of filling the vacancy in the governing body; frequency of the meeting of governing body; restrictions on transfer of property of the society; constitution of selection committee for appointment of Principal; teachers of the college and the mode of their appointment, guidelines, fees, salary scales of pay and other conditions of service and also fixing forum of redressal of grievances, appointment to the post of Professor, provision insisting for requirement of 9 approval of the executive council in the matter of disciplinary action etc., amount to serious interference with the right of an unaided minority institution to establish and administer an educational institution of their own choice as guaranteed under Article 30 (1) of the Constitution of India and therefore, the same cannot be enforced by respondent No. 2 on the pretext of resolution of executive council as per Statute-28.
19. Respondent No. 2-University could not have interfered with the right of the petitioner college to admit students so long as the admission to the unaided education institution is on a transparent basis and the merit is adequately taken care of. Similarly, in the matters of appointment of Principal and teaching staff, the University has power to prescribe minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as teacher or Principal of the petitioner college and regulations made in this regard can be framed without interfering with the overall administrative control of the management over the staff.
20. Similarly, in the case of the petitioner college, which is a non-aided minority educational institute, conditions for recognition and affiliation can be imposed, however, interference in the matters of appointment of staff, teaching and non-teaching both, administrative control over them and management of the society is not permissible. Even in the matter of redressal of grievances of the employees of the non-aided petitioner institution, the respondent No. 2-University cannot interfere as held in the matter of T.M.A. Pai Foundation 9 (supra) and appointment of appropriate Tribunal can be insisted upon.
11. For the above mentioned reasons and law laid down by the Apex Court in catina of decisions, the writ petition is allowed and respondent No.3 is directed to approve the staff profile of the petitioner Society after examining the whole record and not to interfere with the administration and management of faculty/principal and in respect of other staffs appointed by the petitioner/college.
12. The aforesaid exercise shall be completed within a period of 30 days from the date of filing of certified copy of the order with cost of Rs.25,000/-. The cost amount of Rs.25,000/- shall be payable by the Registrar of the University forthwith, failing which, the petitioner is at liberty to take appropriate steps in accordance with law.
(P.K. Jaiswal) (Virender Singh) Judge Judge pn/