TMI Blog1970 (8) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... 6) and 49(6) and do not consider it necessary to repeat what is said by the High Court. These appeals are dismissed except as to those sections but without costs. - C.A. 2598 OF 1969 - - - Dated:- 10-8-1970 - HIDAYATULLAH, M. (CJ) SHAH, J.C., HEGDE, K.S. GROVER, A.N. RAY, A.N. DUA, I.D., JJ. JUDGMENT These appeals by certificates granted by the High Court of Kerala under Arts. 132(1) and 13.3(1)(c) of the Constitution are directed against a common judgment, September 19, 1969, declaring certain provisions of the Kerala University Act, 1969 (Act 9 of 1969) to be ultra vires the Constitution of India while upholding the remaining Act as valid. They were heard together. This judgment will dispose of all of them-. 'The validity of the Act was challenged in the High Court by diverse petitioners in 36 petitions under Art 226 of the Constitution. Some parts of the Act were declared ultra vires the Constitution As a result there are cross appeals. 36 appeals have been filed against the several petitioners by the State of Kerala. Another 36 appeals have been filed by the University of Kerala which made common cause with the Government of Kerala. 7 appeals have been pref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minority institutions are concerned, offensive to Art. 30(1), and therefore void. The petitions were, therefore, allowed except two petitions (O.t.S. No. 2339 and 2796 of 1969) filed by Sree Sankara College Association and the Nair Service Society since the petitioners were companies and were not entitled to the benefit of Art. 30(1) not being minority institutions and not entitled to Art. 19(1)(f) not being citizens. Section 63 was, however, held to offend Art. 31(2) and not saved by Art. 3 1 A(1)(b) and this declaration was in favour of all the petitioners. It was also declared void as offending Art. 30(1) in so far as the minority institutions were concerned. The rest of the Act was declared to be valid and the challenge to it was 'rejected. There was no order about costs. The State of Kerala and the University challenge the judg- ment in so far as it declares the provisions of the Act to be void and the petitioners in the 7 counter appeals challenge the judgment in so far as it has rejected the attack on some other provisions. We shall deal first with the contentions urged on behalf of the State of Kerala and the University of Kerala and then deal with the contentions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which in reason must ,also go to the majority community institutions but a special kind of protection for which the Constitution singles out the minority communities. This question, however, does not fall within. out purview as the State, at the hearing announced that it was not intended to enforce the provisions of the -law relating, to administration against the majority institutions only, if they could. not be enforced against the minority institutions. Therefore, we,, have', to consider, the disputed provisions primarily under Art. 30(1) and secondarily under Arts. 31 and 19 where applicable. Article 30(1) has been construed before by this Court. Without referring to those cases it is sufficient to say that the clause contemplates two rights which are separated in point of time. The first right is the initial right to establish institutions of the minority's choice. Establishment here means the bringing into being of an institution and it must be, by a minority community. It matters not if a single philanthropic individual with his own means, founds the institution or the community at large contributes-the funds. The position in law is the same and the intention in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arat university, Ahmedabad v. Krishna Ranganath Mudholkar and Ors. ([1963] Supp 1 S. C. R. 112.) and Rev. Father W. Proost Ors. v. State of Bihar([1969] 2 S.C.R. 73) In the last case it was said that the right need not be enlarged nor whittled down. The Constitution speaks of administration and that must fairly be left to the minority institutions and no more. Applying these principles we now consider the provisions of the Act. The Act as stated already consists of 78 sections. arranged under 9 Chapters. Chapter VIII is headed 'Private Colleges' and Chapter IX 'Miscellaneous'. Chapter I contains the short title and commencement (s. 1) and definitions (s. 2). We are concerned with some definitions in s. 2 -and Chapters VIII and IX. The other chapters lay down the constitution of University and contain matters relating thereto. They are not in dispute. The High Court in its judgment has carefully summarized the impugned provisions and it is not necessary for us to cover the same ground. We shall content ourselves by mentioning the important aspects briefly. College in the Act means an institution maintained by, or affiliated to, the University, in which instruc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s give the compositions of the two bodies. The governing body set up by the educational agency is to consist. of I I members and the managing council of 21, member The 1 1 members of the governing body are (i) the principal of the private college (ii) the manager of the -.private college (iii)a person nominated by- the University-in accordance with the provisions in that behalf contained in the Statutes,(iv) a person nominated by the Government (v) a person elected in accordance with such, procedure as may be prescribed by the, Statutes of the University from among themselves by the permanent teachers of the private- college and (vi-xi) not more than six. persons nominated by the educational agency. The com- position of the managing council consists of -a principal in rotation from the private colleges, manager of the private colleges, the nominees of the University, and the Government as above, described, two elected representatives of the teachers and not more than 15 members nominated by the educational agency. The Act ought to have used the expression corporate management' instead of 'educational agency' but the meaning is clear. It will thus be seen that a body ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aramangalam drew attention to two facts only. The first is that the nominees of the educational agencies or the corporate management have the controlling voice and that the defect, if any, must be found in the Statutes, Ordinances, Regulations, Bye-laws and Orders of the University and not in the provisions of the Act. Both these arguments are not acceptable to us. The Constitution contemplates the administration to be in the hands of the particular community. However desirable it might be to associate nominated members of the kind mentioned in ss. 48 and 49 with other members of the governing body or the managing council nominees, it is obvious that their voice must play a considerable part in management. Situations might be conceived when they may have a preponderating voice,. In any event, the administration goes to a distinct corporate body which is in no way answerable to the educational agency or the corporate management. The founders have no say in the selection of the members nominated or selected except those to' be nominated by them. It is,. therefore, clear that by the force of sub-ss. (2), (4) and (6) of ss. 48 and 49 the minority community loses the right to admini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... body and the managing council and confer it upon the University. Then comes s. 58 which reads 58. Membership of Legislative Assembly, etc., not to disqualify teachers.- A teacher of a private college shall not be disqualified for continuing as such teacher merely on the ground that he has been elected as a member of the Legislative Assembly of the State or of Parliament or of a local authority : Provided that a teacher who is a member of the Legislative Assembly of the State or of Parliament shall be on leave during the period in which the Legislative Assembly or Parliament, as the case may be, is in session. This enables political parties to come into the picture of the administration of minority institutions which may not like this interference. When this is coupled with the choice of nominated members left to Government and the University by sub-s. (1)(d) of ss. 48 and 49, it is clear that there is much room for interference by persons other than those in whom the founding community would have confidence. To crown all there is the provision of s. 63(1) which reads 63. Power to regulate the management of private colleges. (1) Whenever Government are satisfied o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hods and standards. He, argued that what has been done by the Kerala University Act is to implement these suggestions in Chapters VIII and IX and particularly the impugned sections. We have no doubt that the provisions of the Act were made bona fide and in the interest of education but unfortunately they do affect the administration of these institutions and rob the founders of that right which the Constitution desires should be theirs. The provisions, even if salutary, cannot stand in the face of the constitutional guarantee. We do not, therefore, find it necessary to refer to the two reports. The-result of the above analysis of the provisions which have been successfully challenged discloses that High Court was right in its appreciation of the true position in the light of the Constitution. We agree with the High Court that sub-ss. (2) and (4) of ss. 48 and 49 are ultra vires Art. 30(1). Indeed we think that sub-ss. (6) of these two sections are also ultra vires. They offend more than the other two of which they are a part and parcel. We also agree that sub-ss. (1), (2), (3) and (9) of s. 53, sub-ss. (2) and (4) of s. 56 are ultra vires as they fail with ss. 48 and 49. We express ..... X X X X Extracts X X X X X X X X Extracts X X X X
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