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Chapter VI
G9tYEB!‘t1NGt B9?¥5:§-t_t¥§lHlE9Bl$¥_l§§Il1'9TtIQN§
The right to constitute the governing body of aneducational institution or to change its membership is anintegral part of the right to administer an educationalinstitution. The right to conduct and manage the affairsof the institution established tqr it and tflua choice toselect a managing body must be unfettered so that thefounders or their representatives can shape and mould theinstitution as they deem appropriate and in accordance withtheir ideas of how the interest of the community in generaland the institution in particular" will. be- best served.Interference with this 'choice' may either take place whensuch persons as do not belong to the minority are sought tobe inducted into the managing body or it may take placewhen the managing body is sought to be replaced by anotherbody not of the choice of the minority.
INTERFERENCE WITH THE CHOICE TO SELECT THE GOVERNING BODY
In §.K.Patrgy v. State got _§iha£l, the» questioninvolved was of the validity of an order passed by the
l. A.I.R. 1970 S.C. 259.
212
213
Education Department of the State of Bihar setting asidethe election of the President and Secretary of the ChurchMissionary Society School and directing the School toconstitute a Managing Committee in accordance- with theorder. (M1 being challenged, J.C.Shah, LL. held that theorder passed by the Education authority requiring theSecretary of the Church Missionary Society School to takesteps to constitute the Managing Committee in accordancewith the order was invalid.2
In §ra;e__2§,.K@§a1e v- nether .Pr2vi!1¢i§i3» theconstitutional validity of Sections 48 and 49 of the KeralaUniversity Act, 1969 was in question, in appeal, beforeTheir Lordships of the Supreme Court. The KeralaUniversity Act, 1969, contemplated two different types ofprivate institutions: Ll) those run: under corporatemanagement, anui (2) those under corporate management. By‘Corporate Management‘ was meant a person or body ofpersons who or which managed more than one private college.
Sections 48 and 49 of the Act required the CorporateManagements to constitute a managing council, and requiredthe other institutions not under corporate management toconstitute a governing body. The governing body was to
2. lg. at 264.3. A.I.R. 1970 S.C. 2089.
214
consist of eleven members who are to be as follows: (1)Principal, (2) the Manager of the College, (3) one personnominated by the University in accordance with theprovisions contained ix: the University Statutes: (4) oneperson nominated by the government, (5) one person electedin accordance with such procedure as might be prescribed bythe Statute of the University from among themselves by thepermanent teachers of the private college, (6) not morethan six persons nominated by the institution concerned.The composition of the managing council was to be on thesame pattern except that it was to be comparatively alarger body. It was further provided that the powers andfunctions cm? the governing body cnr the Managing Council,the removal of the members thereof and the procedure to befollowed would be prescribed by the statutes. Thedecisions in these bodies were to be taken on the basis ofthe majority opinion of the members.
The Supreme Court found that after the election ofthese two bodies the founders of the community couldobviously have no hand in the administration of theinstitutions. The Court found these provisions so muchobjectionable, it outrightly rejected the arguments of theState that even in the presence of these provisions, the
215
Managing Council and the governing body had the controlling
voice in the management. Hidayathullah, C.J., speaking forthe Court4 observed:
"The constitution contemplates the administrationto be in the hands of the particular community.However desirable it might be to associatenominated members of the kind mentioned inSections 48 and 49 with other members of thegoverning body or the managing council nominees,it is obvious that their voice must play aconsiderable part in management. Situationsmight be conceived when they may have aprepondering voice. In any event, theadministration goes to a district corporate bodywhich is in no way answerable tothe...management. The founders have tn) say inthe selection of members nominated or selectedexcept those to be nominated by them. It is,therefore, clear that by the force of...Sections48 and 49, the minority community loses the rightto administer the institution it has founded“.5
4.
5.
The other Judges were Shah, Hegde, Grover, Ray and Dha,JJ.Id. at 2084.
216
A provision in Guru Nanak University Statuteswhich was similar to the said Sections 48 and 49 of theKerala University Act, came for consideration before theSupreme Court in Q.A.Y.C2llege,y Qullandgr v. State” gfPunjab.6 Clause 2(l)(a) of Chapter V of the Statutesframed under the Guru Nanak University Amritsar Act, 1969,imposed a condition upon private colleges applying to theUniversity for affiliation to satisfy that the» collegewould have a regularly constituted governing bodyconsisting of not more than 20 persons approved by theSenate and including, among others, two representatives ofthe University and the Principal of the College ex-officio.The clause thus contained a condition precedent for grantor affiliation which was more restrictive than merelyrequiring the inclusion of two outsiders in the governingbody. The Court, accordingly struck down the provisions asoffending Article 30(1).
The State of Gujarat incorporated a similarprovision in the Gujarat University Act, 1949, whileamending the same in 1973, even though the Supreme Courtwas firm and consistent in its approach on provisionscompelling lninority institutions tun include <outsiders .in
6. A.I.R. 1971 S.C. 1737.
217
their management bodies. Section 33A(l)(a) of the Actstated that every college should be under the management ofa governing body which should include amongst its members a
representative of the University nominated by the ViceChancellor and representatives of the teachers, non—teaching staff and students of the college. The St.XaviersCollege, Ahamedabad, a minority institution, challengedthis Provision in §&ié§Yis£§_§21lss2 v- §§e5s:2£i§2isra&7on the ground that the governing body of an institution wasa part of administration and as such could not beinterfered with. The majority view in the §t.XaviersCollege, represented Ray, C.J., Palekar, Jaganmohan Reddi,Alagiriswami, Khanna, Mathew and Chandrachud, JJ., upheld
the line of reasoning of the Supreme Court in earlier casesand declared Section 33A(l)La) of the Gujarat UniversityAct as an unwarranted restriction upon the right ofminority to govern its institution through a managing bodyof its own choice. Ray, C.J.8 held that the choice in thepersonnel of nmnagement was ea part of administration andthat it could not be interfered with by a provision likeSection L$3A(l)(a). while admitting that the GujaratUniversity was competent to see that there was no
7. A.I.R. 1974 S.C. l389.8. Speaking himself and Palekar, J.
218
maladministration in the institutions affiliated to it andwas entitled to exercise control on administration in order
to find out whether minority institutions were engaged inactivities which were not conducive to the interest of theminority, Ray, C.J. stressed greatly upon the permissiblelimits of a regulating measure.
Permissible regulating measures are those which donot restrict the right of administration but facilitate itand ensure better and more effective exercise of the rightfor the benefit of the institution and through theinstrumentality of the management of the educationalinstitutions and without displacing the management.9 Hefurther observed:
"If the administration has to be improved itshould be done through the agency of the existingmanagement and not by' displacing it.Restrictions on the right of administrationimposed ixl the interest cfli the general publicalone and not in the interests of and for theminority...institutions concerned will affect theautonomy in administrati0n".l0
9. ig. at 1399.10. Ibid.
219
Reddi, J. viewed the provisions of the GujaratUniversity Act to be a deliberate attempt on the part ofthe State of Gujarat to interfere with the right ofminority where similar earlier attempts were successfullychallenged and the offending provisions held invalid.ll
Khanna, J. held that a law which interfered withthe minority's choice of a governing body or managingcouncil would be violative of the right guaranteed byArticle 30(1).12
Mathew, J. observed:
"It is in the governing body...that the religiousminority which established the College has vestedthe right to administer the institution and thatbody has alone the right to administer the same.The requirement that the college should have agoverning body including persons other than thosewho constitute the governing body...has theeffect of divesting that body of its exclusiveright to manage the educational institution".13
11. lg. at 1406.12. Id. at 1426.13. Ifi. at 1444.
220
He further observed that "under the guise of preventingmaladministration, the right of governing body of thecollege...to administer the institution cannot tua takenaway. The effect of the provision is that the religiousminority virtually looses its right to administer theinstitution it has founded".l4
In H29 2r@@1r2i<3h1_i§@2na v- égete °§-§ihéE15'Article 182 of the Education Code of the State of Bihar was
challenged by the petitioner who was running a minorityeducational institution. Article 182 authorised the Boardof Secondary Education to make orders for imposing an adhoccommittee consisting of government nominees only in asituation where the managing committee of a school was notfunctioning in a way conducive to the proper maintenance ofdiscipline among the teachers and pupils and was notcarrying out the directions of the Board. The Patna HighCourt held that Article 182 was violative of Article 30 ofthe Constitution. The main objection that the Court madewas that the adhoc committee consisted of governmentofficials and that complete power of control and managementhad been vested in the adhoc committee and the petitioners
14. Ibid.15. A.I.R. 1958 Pat. 359.
221
who were trustees of the institution had been divested ofthe control and management.
Clauses 14 and 15 of the Kerala Education Bill,1957 came tx> be scrutinised tnr the Supreme Court IU1 re
Kera1a;Educationy§il1l6 through a Presidential reference.l7Under sub-clause (8) the Government was allowed even to
acquire the school, taken over under clause 14 oncompensation and in the public interest. Under clause 15the Government was empowered to acquire any category ofschools, if it was satisfied that for standardising generaleducation in the State or for improving the level ofliteracy in any area or for more effectively managing theaided institutions in any area or for bringing education ofany category under the direct control of the Government, itwas necessary so to do. The Supreme Court did not find itpossible to accept that these clauses were mereregulations. It held that these clauses are totallydestructive of the rights of minorities under Article 30(1)and observed that, if enacted into law, the provisions inthese clauses would be violative of Article 3O(1).l8
16. A.I.R. 1958 S.C. 956.17. Under Art.143 of the Constitution the President is
empowered to refer any matters of public importance tothe Supreme Court for the purpose of obtaining itsopinion.
18. lg. at 984.
222
The question involved in §g§limy_§g_il'umaQ:g—T§lgem
v. 'harfiUnivers'tyl9, was the constitutional validity ofE1 _Bihar Act — XVI of 1965 which authorised the BiharUniversity to lay down the constitution of the governingbodies of educational institutions admitted as colleges andto suspend or dissolve the governing bodies and to appointadhoc committees also. The- University framed Statutesunder this provision. On behalf of the Milad College,Leheria Sarai, which was established by the local Mulsimminority, it was argued that the Muslim, having establishedthe college for imparting modern education to Muslimstudents in a manner that would conserve their distinctlanguage, culture and religion, had a right to administerthe same and any interference with their right would be aviolation of Article 30. The Patna High Court, relying on§idhraj Qhai v. §ytat;e otygujaryatzo, held that the rightconferred by Article 30(1) was a real right and that in theguise of regulatory measures the character of theinstitution as a udnority institution should not be takenaway.
In §;@.5li§han \n. flagadhygniyergityzl, the Patna
1967 Pat. 148.1963 S.C. 540.1974 Pat. 341.
romr-»|—'O\D
Zl>I!>3='O00r--|r—c+—1ill237373OII
223
High Court intervened and held invalid the act of MagadhUniversity seeking to replace the management of MirzaGhalib College, Gaya by appointing an adhoc committee of 7persons to manage the affairs of the College until agoverning body‘ was constituted in accordance with theStatutes of the University. The same High Court quashed an
order of the same University in Hari;_Mandirjif v. MagadhUniversityzz, in almost identical circumstances in which ithad to intervene in the above said case. The MagadhUniversity constituted an adhoc committee for themanagement of Shree Guru Govind Singh College, Patna, which
was a minority college. The Court held that theappointment of the adhoc committee by the University was an
interference with the_right of Sikh minority to administerand manage the college in accordance with its own choice.
The Kerala High Court in genedict Ma£_Greg9£i9§ v.
§tate_;of y§erala23, was called upon to determine theconstitutional validity of Sections 52 and 53 of KeralaUniversity Act, 1974, which were challenged. as seriousinroads _into the right of minority institution to begoverned by their own governing bodies. Section 5 defineda ‘Unitary management‘ as an educational agency which
I
22. AOIORQ 1-2.23. 1976 K.L.T. 458.
224
managed a private college, and a ‘corporate management‘ asan educational agency which managed more than one privatecollege. Section 52 enjoined cnnaa unitary management toconstitute a governing body consisting of members specifiedin the section. The members so specified were: (a)Principal, (b) Manager of the College, (c) a personnominated by the University, (d) a person nominated by theGovernment, (e) a person elected by the permanent teachersof the College from among themselves, (f) the Chairman ofthe College Union, (g) a person elected by the non—teachingstaff from among themselves, (h) not more than six personsnominated by the Unitary Management. Sub—section (2)provided that the Manager of the Private College would bethe Chairman of the governing body. Sub—section (3)provided that it would be the duty of the governing body toadvise tfime unitary management ill all matters relating toadministration. Sub-secthmi (4) enacted the decision ofthe governing body would be on the basis of simplemajority. Section 53 contained an almost similar provisionfor a Managing Council for all private colleges under acorporate management.
A full bench of the Kerala High Court found thatthe attack on sections 52 and 53 was, prima facie, well
225
founded. But the court passed the two provisions as thatthe bodies contemplated under the two provisions werepurely advisory. Nambiar, J. speaking for the Courtobserved:
"By confining the power of the governing bodyunder Section 52 and of the managing councilunder Section 53 to purely advisory functions andwith no provision to make the advice binding onthe minority institution, we see no ground tohold that these sections violate Article30(1)".24
The learned Judge further observed:
"we would confine the provisions of the sectionsaccordingly, and were they to have a wider effector purpose than pmrely advisory, we would holdthat they trench on Article 30(1) of theConstitution".25
lg. at 470.
226
DEVIATION FROM THE CONSISTENT JUDICIAL APPROACH
This consistency in judicial approach, so welldemonstrated 111 the cases reviewed above, seems tun have
suffered erosion in §andhi_M§aig:e:am jggllege v. AgraQniversity26, decided tqr the Supreme Court about ea yearafter the §t:Xayier§g§ollgge.27 But even before the saidcase, in 19711 the Punjab & Haryana High Court had proceded
one wrong assumption in §unjab_é§nive§§ity v. KhalsaCollege28 wherein Rule l0 of the Regulations- governingservice and conduct of teachers in non—governmentaffiliated colleges framed by the Punjab University waschallenged as violative of Article 30. Rule 10 providedthat besides the principal who was to be an ex-officiomember of the governing body of a non-government college,two representatives of teachers elected in the mannerstated therein should be included in the management. Thecollege being established by the Sikh minority argued thatthe enforcement of the rule might result in introducing anon—Sikh into the managing body thus violating Article 30.
26. A.I.R. 1975 S.C. 1821.27. Supra note 7.28. A.I.R. 1971 Punj & Har. 479.
227
The Court declaring the contention untenable observed:
"It cannot be said that there is any certaintythat a non—Sikh teacher can be elected to theGoverning Body. Even if he can be elected to aGoverning Body of 20 persons, the presence of tworepresentatives will not in any manner alter thereal and true composition of that Governing Body.The object of Service Rule 10 is merely to giverepresentation to teachers in that Body.Moreover, it is open to the Governing Body not toappoint any person as a teacher who is a non—Sikhand if they appointed any person as the teachingstaff, who is a non-Sikh, they cannot make agrievance that a non-Sikh has been elected to theGoverning Body“.29
It further observed:
"If an educational institution established by aminority considers it necessary or in itsinterest to employ teachers not belonging to thatminority and such teachers enjoy the confidence
228
of their colleagues and are popular enough to beelected to the Governing Body, we fail to see howit can constitute interference with theminority's right guaranteed under Article 30 of
. . “ 30the Constitution .
9§n§bi_§§i@#§;§m.§oils9§ v- &9ra-Q§ivs§§it131 is acase which deviates from the consistent line of reasoningevolved by the Supreme Court on the question of autonomy inthe matter of selection of management bodies. In thiscase, the petitioner college, a Muslim minorityinstitution, affiliated to the Agra University, applied forpermission tn: start teaching ix: certain subjects. As acondition of recognition of the proposed subjects, theUniversity insisted that the College should follow statutel4—A. It provided that an affiliated college must includein its governing body the Principal and the senior mostmember of the Staff of the college to be appointed byrotation every academic year. The University directed theCollege to constitute a governing body as contemplated inthe Statute. The college agreed to reconstitute itsmanagement body and requested the University to grantrecognition to the new subjects. when the University took
30. lg. at 482.31. Supra note 26.
229
no steps accepting the request the college challenged thevires of the statute l4~A and the legality of thedirective. The Allahabad High Court32 rejected thecontention and the College went in appeal before SupremeCourt against the High Court decision. A 2:1 majority ofthe Supreme Court found the provision as salutory and notrestrictive cflf the right under Article 30(1) as, in itsview, the inclusion of only 2 persons, the Principal andthe seniormost teacher did not restrict the substance ofthe right. Krishna Iyer, J., speaking on his behalf and onbehalf of A.C.Gupta, J. justified the provision as areasonable regulation and not an unconstitutionalcondition. He observed: "Regulation which restricts isbad: but regulation which facilitates is good".33 KrishnaIyer, J. was faced *with the <5ifficulty' of drawing thedelicate line distinguishing a permissible regulation froman impermissible restriction. He suggested the test:
“No rigid formula is possible but a flexible testis feasible. Where the object and effect is toimprove the tone and temper of the administrationwithout forcing on it a stranger hower superb hisvirtues be, where the directive is not to
32. A.I.R. 1968 All. 188.33. Supra note 26 at 1826.
230
restructure the governing body but to better itsperformance by ea marginal, catalytic induction,where no external authority's fiat or approval oroutside nominee is made compulsory to validatethe management body but inclusion of an internalkey functionary appointed by the autonomousmanagement alone is asked for, the provision issalutory and saved, being not a diktat erodingthe freedom“.34
He held that though a rough distinction between creation ofa managing body and general regulation of its activities toprevent maladministration could be drawn, the distinctionwas bound to be blurred in marginal situations. Heobserved:
"A dichotomy is sometimes drawn in this branch of
juridical discussion. More plainly thedifference drawn is between creating a management
body by the minority community and regulation ofthe manner of its functioning to obviate maladministration. The former is ordinarily beyondthe punt: of legislative prescription while the
34. Ibid.
231
latter is permissible as preservative. Broadly,this is sound, but as a rigid logical formula, itbreaks down".35
He further observed:
“These fine but real lines cannot be obfuscatedby excessive emphasis on the character of theorgan as against its method of working. Menmatter in extreme situation".36
Emphasising the importance of the position of the principalin an educational institution he said:
"A regulation which requires his inclusion in theGoverning Council imposes no externalelement....His membership on the Board is ablessing in many ways and not a curse in anyconceivable way".37
The learned Judge distinguished the variousearlier decisions (ME the Supreme Court ix: Mother
35. Ibid.36. _1_g. at 1827.37. Ibid.
232
§§9y1§§isl38' 8425222239’ §@§:Est§24°' P:&l¥:99lls2s4l and
§t;§§yier§gyQ9llege42 cases from tine present case. Heobserved:
‘VH1 all these cases administrative autonomy is
imperilled, transgressing, purely regulatorylimits. 111 our case autonomy virtually' leftintact and refurbishing, not restructuring, isprescribed. The core of the right is not gaugedout at all and the regulation is at oncereasonable and calculated to promote excellenceof the institution - a text book instance <9fconstitutional conditions".43
To Krishna Iyer, J., what seemed to be thedistinguishing factor between the case he was dealing withand the cases decided earlier was that in the earlier casesthe regulations were in the nature of restrictions whereasin the instant case the regulation was intended to improve"the tone and temper of administration".
38. Supra note 3.39. A.I.R. 1969 S.C. 465.40. Supra note l.41. Supra note 6.42. Supra note 7.43. A.I.R. 1975 S.C. at 1829.
233
The mere presence of non—minority members canchange the whole colour of the managing body. The presenceof outsiders in the management body has helped the courtsin certain cases44, to form a presumption that theinstitution in question were not intended to be minorityinstitution. It can be said that §andhi+Faig:§:am_§9lleggcase45 was not decided on logically justifiableassumptions.
In émtlflaaéa G-heal; Pastiésr aailsthers v- ____@u1"u
QanahrgducationT§ustA§nQM9the§§46, the Court quashed theorder dated May 7, 1983 of the President of the West BengalBoard of Secondary Education appointing an administrator totake charge of the management of the school which belongedto the Guru Nanak Education Trust. Their Lordships held:
"The Board cannot, however, under anycircumstances interfere xmhflm the management ofthe school by superseding the Managing Committeeand appointing administrator to take charge ofthe school and administer the same".47
44. gamani §antha v. gauhatiugniyersity, A.I.R. 1951 Assam163= §*fxa_r55a§;ni9hi§2Eh§ v- étstsrsfifiihsr» P~-I-R1973 Pat. 101: Pannalal v. §agadh Uniygrsity, A.I.R.1976 Pat. 82.
45. A.I.R. 1975 S.C. 1821.46. A.I.R. 1984 Cal. 40.47. Id. at 43.
234
An analysis of the decisions reviewed above bringsout the fact that the Courts were firm and consistent inits approach that the right to establish and administereducational institutions including the right to select thegoverning body and that this right cannot be restricted orinterfered with. The rule laid down in §andhi€§aig:e:amCollege is that imposition of outsiders on managing body ofa minority institution is an interference with the right ofminority to administer its institution according to itschoice. There is an exception to this rule that inductionof such a nominal number of insiders (such as Principal ora teacher) as would not be able to dominate the ManagingBody's voice in the decision making is permissible.
In sanqerenoeb v- glgr‘-]i‘§§naE‘;Ed29g;ioQ‘IE¥l!S'§48'
the Court held that the education Board could not under anycircumstances, interfere with the management of a minorityschool by superceding the managing committee and appointingan Administrator to take charge of the school andadminister the same. The Court also noticed that in theimpugned order of supersession, there was no allegation asto the mismanagement of the school.49
48. A.I.R. 1984 Cal. 40.49. lg. at 43.
235
In Sushil Kumar v. Statemof Assamso, Rule 6 ofAssam Aided Higher Secondary, High and Middle SchoolManagement Rules, 1976, empowered the inspector of schools
to dissolve and reconstitute the Managing Committee at anytime, subject to two conditions: (a) the circumstances mustso demand: and (b) this must be subject to the approval ofthe Director of Public Instruction.
In the instant case the School in questionbelonged to Bengali Community which was a linguisticminority in the State of Assam. Under Rule 6, theInspector <xE Schools dissolved the nmmaging committee ofthe school and reconstituted new committee withoutobserving pminciples cnf natural justice. The Court heldthat there is absolutely nothing on record to show thecircumstances which had led the Inspector of Schools topass the impugned order dissolving the committee formed and
constituting new committee. Moreover, principles ofnatural justice had run; been followed. EM: a reasonableopportunity of being heard was not given. Any attempt totranscend permissible limit in the garb of supervisionwould not admit the tolerance of Article 30.51
50. A.I.R. 1984 Gau. 69.51. IQ. at 74.
236
In §njuman_§hle4Ha egg, Qarbhanga v. State52, theconstitutional validity of Section 7(2)(n) of Bihar State,Madarsa Education Board vans challenged. The pattern forconstitution of managing committee as laid down in Section7(2)(n) comprised of 9 members. Of those 9, the donorrepresentative would be only 2. The management couldnaturally pass out of the hands of the organisation whichhad sponsored and set up the Madarsa and it might become atool of Madarsa Board. The- minority community "would,therefore, be deprived of its right and privilege ofmanaging its institution, namely, the Madarsa. Theprovision of Section 7(2)(n) thus clearly violated Article30(1) of the Constitution.
In M2ns2i@9_¢9@@i§t2s;Eestistlénsrchir@<E:S§h2Q1
v. State53, District Inspector of Schools in exercise ofhis power under Rule 3(1) of the Orissa Education(Management of the Private Schools) Rules 1980, constituteda managing committee for the petitioner school which was aminority school. The rules framed under the OrissaEducation Act excluded from its application institutionsestablished and administered by minority committees. The
52. A.I.R. 1985 Pat. 315.53. A.I.R. 1988 Ori. 250.
237
Court held that the rules could not be invoked to appoint aManaging Committee for the petitioners school. It is toowell settled ix: law that even though regulatory measurescan be made applicable to the institutions protected underArticle 30(1), yet interference with the management in theshape of either taking over of the management orreconstitution of it in effects destroys the very guaranteeunder Article 30(1) and would be ultra vires of it.
The validity of sub-clause (a) of paragraph 17¢sub—clause (l)(i) as also sub—clause (a) of paragraphl7(l)(ii) of Statute No.28 framed under Indore UniversityAct which prescribed that 'Ku1apati' or his nominee shallbe the Chairman of the selection committee in the case ofteaching posts and in the case of Principal, werechallenged in lslamia_§arimia Societyl lndore v. QeyiAkilya?Yi§hwa_!idyalaya54. The petitioner was linguisticand religious minority. The petitioner challenged the saidprovision as violative of Article 30 of the Constitution.The Court held that the provision contained in paral7(l)(i) of Statute No.28 in regard to the constitution ofthe selection committee iml the case <n5 teaching postsexcept in so far as they provided in sub~clause (a) that
54. A.I.R. 1988 M.P. 200.
238
the Kulapati or his nominee should be Chairman of suchcommittee, were aimed at ensuring educational standards andmaintaining excellence thereof and could not be said to beviolation of Article 30(1). The same was the position withregard to clause (ii) also of the said paragraph 17(1)which dealt with the constitution of selection committee inthe case of Principal. Except sub—clause (a) whichprovided for the Kulapati or his nominee being theChairman, the other sub—clause did not offend Article 30(1)
of the Constitution in as much as they too apparently hadbeen enacted for ensuring educational standards andmaintaining excellence thereof.55
Educational authorities have no right to encroachupon fundamental rights of founders of nominees of minorityeducational institutions by constituting or reconstitutingmanaging committees for such institutions. In gerhraympurP129299!“ Q‘?-‘Ehgrlic5¢h°2l_M§“aEliE9_§Q“‘!BiE§§S "- .§.E§‘_£E56' the
institution in question was a minority institution and theauthorities had from time to time recognised the saidschool to have been established by the minority. In l986,the Inspector of school interfered with the constitution ofthe Managing Committee. The petitioner challenged the
55. lg. at 205.56. A.I.R. 1993 Ori. 93.
239
interference as violative of Article 30(1) of theConstitution. The Court held that the State had noauthority to interfere with constitution of the managementcommittee, since it did not fall within the regulatorypower of the State to be exercised in the interest ofexcellence of education. To permit the indulgence woulddestroy the enshrined rights guaranteed under theConstitution.57
I" §iha£l@QEi§£i§9lS¢n99ls 5s§9§i¢ti9n-2Q§ a89EEs£
v. State of Biharsa. the constitutional validity of Section3 and 18(3) of Bihar Non—Government Secondary Schools
(Taking Over of Management and Control) Act, 1981 waschallenged on the ground that the provisions were violativeof Article 30(1) of the Constitution. The Court consistingof Ranganadh Misra and K.N.Singh, JJ. held that Section 3which provided for taking over of management and control ofnon-government secondary schools did not in any mannerencroach iqxni the fundamental right of ea minorityinstitution as sub-section (1)59 did not effect a minority
57. id. at 99.58. (1988) 1 s.c.c. 208.59. Sub-section (1) eaf Section 3 <mf Bihar Non-Government
Secondary Schools (Taking Over of Management andControl) Act, l98l:- "A11 non-government secondaryschools other than the minority secondary schools basedon religion or language declared as such by the StateGovernment and centrally sponsored; autonomous and
(contd...)
240
secondary school at all. Sub-section (2) merely enabledthe State to take over the control and management of andnority institution only when an unconditional offer wasmade ttwzhz by the management of the nunority institutionand sub—section (3) related to the taking over ofumnagement and control of unrecognised schools other thanminority school.6O
Clause (a) <mE Section 18(3) required ea minority
secondary school to frame written bye-laws for constitutionof managing committee entrusted with the function ofrunning and administering its school. It was held thatthis clause was in the interest of the minority institutionitself, as no outsider was imposed as a member of themanaging committee and it would ensure efficientadministration, there vans no interference with theminority's right to administer its school.
(f.n.59 contd.)proprietary secondary schools recognised by the StateGovernments, recognised permanentlyq provisionally iorpartially by the Board of Secondary Education under theBihar Secondary Board Education Act, 1976 (Bihar Act 25of 1976) and the Bihar Secondary Education Board(Second Amendment) Ordinance, 1980 (Bihar Ordinance 82of 1980) shall, notwithstanding, anything contained inthe said Act, or the said ordinance, be deemed to havebeen taken over by the State government with effectfrom October 2, 1980.
60. (1988) 1 s.c.c. 225.
241
In Bihar State Madarsa Education Board v. Madarsait i;_—i_i '__'_Z C‘. 5.‘ T_i_i__i7_Ti——iiiil77 ‘ ‘_ii"il‘- -‘ ii-3-Z-iii
Banifau§£abic_§gllege6l, Sections 7(2)(n) of State MadarsaEfiucation Board Act, 1982 was challenged as violative ofArticle 30(1) of the Constitution by the respondents whichwere educational institutions established by time Muslimminority community. Section 7(2)(n) empowered the Board to
dissolve the management of an aided and recognisedMadarasa. The Court62 held that Section 7(2)(n) of the Actwas clearly violative of Article 30(1) in so far as itprovided for dissolution of a managing committee of aMadarasa. The Court further observed that though theminority institution could not be allowed to fall below thestandard of excellence on the pretext of their exclusiveright of management, but at the same time theirconstitutional right to administer their institutions couldnot be completely taken away by superseding or dissolvingmanaging committee. Under the guise of regulating theeducational standards to secure efficiency in institution,the State was not entitled to frame rules or regulationscompelling the management to surrender its rights ofadministration.63
61. (1990) 1 s.c.c. 428.62. Consisting of K.N.Singh and N.M.Kasliwal, JJ.63._lQ. at 432.
242
CONCLUSION
The requirement that the college should have agoverning body including "persons other than those whoconstitute governing body has the effect of divesting that
I4
body of its exclusive right to manage the educationalinstitution. The choice in the personnel of management isa part of administration. If the administration has to beimproved through permissible regulatory measures it shouldbe done through the agency of the existing management bodyand not by displacing it. A law which interferes with theminorities choice of a governing body would be violative ofthe right under Article 3O(l).64 There is a cleardistinction between creating a governing body by theminority community and the regulation of the manner pf itsfunctioning txa prevent maladministration. The former isbeyond the pale of legislative prescription while thelatter is permissible as preservative. Regulations arepermissible to prevent maladministration but can onlyrelate to the manner of administration after the body whichis to administer has come into being. The imposition of
64- State Ofi§9§§l§ v- m9§Q¢£-ErQvi"¢iel- A-I-R- 197° 5-C§O89*: §.K.Patr9 v.l§tate of Biha§¢ A.I.R. 1970 S.C.259= D-A-Y;§9lle9e¢ilJhI1u5de5 v- §EQE§ii2§,iE2519P'A.I.R.*l97l S.C.dI737?“$€e§§yier'suggllggg v. State ofGujarat, A.I.R. 1974 S.C. 1389.
243
outsiders CH1 the governing body against the will of theminority is more likely to create a state of confrontation that tc>create
conditions for improvement of the tone and temper of thecollege management. The mere presence of non—minoritymembers can change the whole colour of the managing body.This presence of outsiders in the management bodies hadhelped the courts65 to form a presumption that theinstitutions in question were not intended to be minorityinstitutions. The induction of snufli a nominal number ofinsiders (such as the Principal or a teacher) as would notbe able to dominate the managing bodies voice~ in thedecision-making is not permissible because it is morelikely to be of a curse than a blessing.66
65- Baivanilantlza v- Qauhatilvnivsrsitzr A-I-tR- 1951 Ass163= Ange E§§tir1i<_§hil§§bh§ v- éggtemgg Elgar: A-I-Rl9T3 Pat. 101: Pannalal v. @Qg§Qh;UQ}!§€$l§11 A.I.R.1976 Pat. 82.
66. The decision laid down in §andhiyFaig:e§amM§ollgge v.§g§a;l_Jniyersity, A.I.R. 1975 S.C. 1821; is a case incontrast and is distinguishable from all others decidedby the Supreme Court on the question of autonomy in thematter of selection of management bodies.
