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TMI Blog1970 (8) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment of Kerala. 7 appeals have been preferred by seven original petitioners, who seek a declaration that some other provisions of the Act, upheld by the High Court as valid, are also void. The Kerala University Act 1969 (which repealed and replaced the Kerala University Act 1957 (Act 14 of 1957) was passed to reorganise the University of Kerala with a view to establishing a teaching, residential and affiliating University for the southern districts of the State of Kerala. Some of its provisions affected private colleges, particularly those founded by minority communities in the State. They 'were consequently challenged of various grounds. The petitions were consolidated in the High Court and were decided by the judgment and order under appeal. Before we begin to discuss these appeals we may say a few words about them. 33 petitioners belong to different denominations of the Christian community; 8 are Superiors of different Catholic Religious Congregations; 8 are Catholic Bishops representing their dioceses; 3 are Vicars of Catholic parishes; 5 are Boards of Associations constituted by different Catholic denominations for establishing colleges and other educational institut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd then deal with the contentions of the majority institutions and the challenge to the sur- viving portions of the impugned Act by the appealing original petitioners. in the matter of the minorities the main attack comes from Art. 30(1) of the Constitution. This clause reads : "30. Right of minorities to establish and administer educational institutions. (1) All minorities, whether based on religions or language, shall have the right to establish and administer educational institutions of their choice. It declares it to be a fundamental right of the minorities, whether based on religion or language, to establish and administer educational institutions of their choice. It is conceded by the petitioners representing minority communities before us (and indeed they could not gainsay this in the face, of authorities of this Court) that the State or the University to which these institutions are affiliated may prescribe standards of teaching and the scholastic efficiency expected from colleges. They concede also that to a certain extent conditions of employment of teachers, hygiene and physical training of students can be regulated. '. What they contended is that here there is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me and the intention in either case must be to found an institution for the benefit of a minority community by a member of that community. It is equally irrelevant that in addition to the minority community others from other minority communities- or even from the majority community can take advantage of these institutions. Such other communities bring in income and they do not have to be turned away to enjoy the protection. The next part of the right relates to the administration of such institutions. Administration means 'management of the affairs' of the institution. This management must be free of control so that the founders or their nominees can mould the institution as they think fit, and in accordance with their ideas of how the interests of the community in general and the institution in particular will be best served. No part of this management can be taken away and vested in another body without an encroachment upon the guaranteed right. There is, however, an exception to this and it is that the standards of education are not a part of management as such. These standards concern the body politic and are dictated by considerations of the, advancement of the count ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in which instruction is provided in accordance with the provisions of the Statutes,, Ordinances and Regulations. These are framed by the University. 'Educational Agency' means any person or body of persons who or which establishes and maintains a private college. 'Private College' means a college maintained by an agency other, than the -Government or the University and affiflated to the University. I 'Principal means the head of a college. By 'teacher' as used in the Act is meant a Principal, Prof Assistant-Professor, Reader. 'Lecturer, Instructor or such other person imparting instruction or supervising and whose appointment has been approved by the University in any of the colleges or recognised institutions. 'Recognised teacher' means a, person employed as a teacher in an affiliated institution and whose appointment has been approved by the University. There is much overlap between 'college, -teacher' and 'recognised teacher' but there is no antinomical contusion which might have otherwise resulted. These definitions by themselves are not questionable but in the context of the provisions of Chapters VIII and IX, about to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een that a body quite apart from the educational agency 'or the corporate management is set up. Sub-section (2) in either section make these bodies into bodies corporate having perpetual success in and a common seal. The manager of the college or colleges, as the case may be is the, Chairman in either case [sub-s. (3)] Sub- section (4) then says that the member shall hold office for a period of 4 years from the date of its constitution. Sub-section(5) then says as follows; "It shall be the duty of the Government body/(Managing council) to administer the Private college (all the private colleges under the corporate management) in accordance with the provisions of this Act and the Statutes, Ordinances, Regulations, -Bye-laws and Orders made thereunder." (We have attempted to combine the two provisions here. In the case of governing body the sub-section is to be read omitting the ,words in brackets and in the case of managing council the underlined words are to be omitted and the sub- section read with the words in brackets.) Sub-section(6) then lays down that the powers and functions of the governing body, (the managing council), the, removal of members thereof and the Procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o administer the institution it has founded. Sub-section (5) also compels the governing body or the managing council to follow the mandates of the University in the administration of the institution. No doubt the Statutes, Ordinances, Reguula- tions, Rules. Bye-laws and Orders can also be examined in the light of Art. 30(1) but the blanket Dower so given to the University bears adversely upon the right of administration. This position is further heightened by the other provisions of the Act to which a reference is now needed. Section 53-, sub-ss. (1), (2) and (3) confer on the Syndicate of the University the power to veto even the,, action of the governing body or the managing council in the selection of the principal. Similarly, sub-s. (4) fakes away from the educational agency or the corporate management the right to select the teachers. The insistence on merit in sub-s.(4) or on seniority cum fitness in sub (7)does not save the situation. The power is exercised not by the educational agency or the corporate management but by a distinct and autonomous body under the control of the Syndicate, of the University. Indeed sub-s. (9) gives a right of appeal to the, Syndicate to any pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eport from the University or upon other information that a grave situation has arisen in which the working of a private college cannot be carried on for all or any of the following reasons, namely:- (a) default in the payment of the salary of the members of the staff of the college for a period of not less than three months; (b) wilful closing down of the college for a period of not less than one month except in the case of the closure of the college during a vacation; (c) persistent default or refusal to carry out all or any of the duties imposed on any of the authorities of the college by this Act or the Statutes or Ordinances or Regulations or Rules or Bye-laws or lawful -orders orders passed thereunder; and that in the interest of private college it is necessary so to do, the Government may, after giving the governing body or managing council, as the case may be, the manager appointed under sub-section (1) of section 50 and the education agency, if any, of the college a reasonable opportunity of showing cause against the proposed action and after considering the cause, if any, shown, by order,, appoint the University to manage the affairs of such private college temporarily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b- sections vis-a-vis Art. 30(1). We also agree that Section 58 (in so far as it removes disqualification which the founders may not like to agree to) and Sec. 63 are ultra vires Articles 30(1) in respect of the minority institutions. The High Court has held that the provisions (Except s. 63) are also offensive to Art. 19(1)(f) in so far as the petitioners are citizens of India both in respect of majority as well as minority institutions. This was at first debated at least in so far as majority institutions were concerned. The majority institutions invoked Art. 14 and complained of discrimination. However, at a later stage of proceedings Mr. Mohan Kumaramangalam stated that he had instructions to say that any provision held inapplicable to minority institutions would not be enforced against the majority institutions also. Hence it relives us of file task of considering the matter under Art. 19(1)(f) not only in respect of minority institutions but in respect of majority institutions also. The provisions of s. 63 affect both kinds of institutions alike and must be declared ultra vires in respect of both. The result is that the Judgment under appeal is upheld. The appeals of the Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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