GANDHI FAIZEAM COLLEGE SHAHAJAHANPUR

UNIVERSITY OF AGRA AND ANOTHER

March 3, 1975

(K. K. MATHEW, V. R. KRISHNA IYER AND A. C. GUPTA, JJ.]

llld:~iute 14A of the Agra University-If violative of Art. 30, Constitution of

1 J:e appellant is a minority College, affiliated to he respondent-Universiti•

n. . ugust 1964, th1~. Co!lege management applied to the respondent for per:

~111s;~1on to. tart teaclung 1!1. certain courses pf study. The respondent insisted: that C as. a cond1tion of rcco¥mt1on. of the additional subjects, the Managing Com

m1te~ must be re-constituted m conformity with statute 14-A by including the Prmc1pal of the Col !ege n.d th.e senior most member of the staff in it.

The~ ilppell.ant file~ a wrnt peuuon !n the High Court challenging Statute 14-A a.~ v10Jative of J\rt. 30, but the High Court dismissed the petition. ·

(Per majority, V. R. Krishna Iyer &nd A. C. Gup':a, JJ.)

'Thi? inclusion. of th7 Principal and the . senior member of the staff on thu D M.anagmg Comm1tte1!, improves the administration and does not inhibit its autonomy, and the Statute is therefore good and valid.

[833A]

. ( 1) Abridgement of the right under Art. 30 is as obnoxious as its annihi·

lafl<?J~. but the right can be regulated in a benign manner which neither abnc; l!ICs nor exagge.rates autonom~ .but promotes better performance. To regulate. 1s not to restncl, but to fac1htate the effective exercise of the very right regul11ted.

(820B-C; 8240] E

(2) The Principal is an invalua, ble insider-the Management's own choiceand not an outsider. He brings into the work of the Managing Committe~

that intimate acquaintanee with educational operations and that necessary ex• pression of student-teacher aspirtions and complaints which are so essential for the minority institutions to achieve a happy marriage between individual.ity and cixcellence. An activist Principal is an asset in discharging the dutiesof the Managing Committee whic}l are inextricably inter-laced with academic func- F tions. The senior most teacher is a seasoned representative of the teachers and

is, also chosen by the management itself. His role, though less striking and more unobstrusive, is also a useful input into managerial skills.

[825F-H]

(3) Moreover the Managing Committee is subject to the hierarchiral control of the Govering Body and General Council.

[825H]

(4) T~. draw a distinction between creating a managing body, and regulating the manner of its functioning to obviate mal-administration, and hold that. th.e G former is beyond the pale of legislative prescription while the latter is permiss1•

ble as a pieservative, is broadly sound; but, as a rigid Jogi.cal formula, It breaks down. For example. jf the law says thM a person convicted of breach of trust or that an undischarged insolvent would be disqualified to be the treasuer, it affects .the structure of the governing body, but it is indubitably a protection agJinst likely maladministration.

[823E-H]

(5) In the D.A.V. College case (1971) Supp. S:C.R. 688 and Sla!e. of Kera/a v. Verv Rev. Mother Provincial. ( 1971) 1 S.C.R. 734 some provmons H relatinig to the. principal of thei institution were tuck down, but the -r:al reason for striking them down was that those provmons and others deprived the mipority of its right to. manage its own institutions.

[831D-832B]

G~NDHI F)IZEAM COLLEGE v. AGRA UNIV. (Mathew, !.)

8 1 I

Kera/a Educati011 Bill Case (1959) S.C.R. 995; St. Xavier's College case

(1975) I. SCR,173; Rev. Fr. W. Proost case (1969) 2 S.C.R. 73 and Rt. Rev.

Bishop Patro's case (1970) 1 S.C.R. 172, referred to. ..

(Per K. K. Mathew, J dissentinJl :

The whole temper and tone of a college do depend upon the 171 incipal and the teachers, but that does not mean that they should be members of the governing cot•ncil of a w!lege.

[815F-G]

Th~ rnat:er is concluded by the decisbn of this Court in Al11nedabad St.

Xarier's College Sdcieiy v. Stote of Gujarat (1975) 1 S.C.R. 173. This Court

hld by a majority that s. 33A( 1) (a) of the Gujarat UniversitY Act, 1949, was violative of Art. 30(1) because, that provision required the inclusion, in the governing body of the College, of persons whom the religious minority did not want to include. When the article says that a religious or linguisti.:: mi.D.ority has the right to administer educational institutions of its choice, it means that the light 10 carry on the administration of the institution must be left to the managing body consisting of' Pe.rsons in whom the religious or liitguistiC minority has faith and confidence. The minority, community has the exclusive right too

vest the administration of the College in a body of its own choice and any compulsion from an outside authority to include any other person in that body is an abridgement of its fundamental right to administer the educational institution. The determination of the composition of the body to administer the educational institution established by a religious minority must be left to the minority as that is the core of the right to administer, though regulations to prevent mal-administration by that oody are permissible.

But, such regulations can only relate to the manner of administration after the body which is to adminiqer has come into being.

[8120; 815B-D] ·

State of Kera/a /~<Mother Provincial [1971] 1 S.C.R. 734; W. Proo.it v.

Bifwr [1969] 2 SCR 73 and Rer. Bishop S. K. Patro v. Bihar [1969] 1 SCR

863. referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No~ 1611 of 1969.

Appeal by special leave from the Judgment and Order dated the 125th July, 1967 of the Allahabad High Court in Special Appeal No. ;)65 of 1967.

Frank Anthony, K. L. Hathi and P. C. Kapur, for the appellant..

Santosh Chatterjee and G. S. Chatterjee, for the respondents.

' The Judgment of the Court was delivered b, y Krish11<t iyer, J. K. K.

Mathew, J. gave a dissenting opinion.

MATHEW, J.

The question is whether Statut~ 14A framed by the University of Agra abridges the fundamental right guaranteed under Article 30(1) of the Constitution of the Muslim community of Saharanpur, a religious minority, to administer the Gandhi Faizeam College, Saharanpur, established by it.

In August; -1964,, an application was made on behalf of the college management to the University for permission to start teaching in courses of study including Sociology, Sanskrit, Arabic, Military Studies, Drawing and Painting.· The University insisted that as condition .for recognition of these additional subjects as courses of study, the managing committee of the college must be reconstituted in conformity with

.Statute 14A by including the Principal and the senior-most member of

tJic :>taff in it.

Statute 14A provides :

.; 14-A. E:ich college, already affiliated or when ; iffil iatcd, which is not maintained. cxclmively by Government mus!

l>e under the Managemcm of a rcg:JJbr constitued Governing Hody .(which term includes Man~·.r!ng Committee) on which !he staff of the college shall be rcptcenlcd l'Y the Princip~! of the College and at lcat one rtprcsc:; tali"v~ of the teachers 1..11 l lie college to be appointed by rotation in order of seniority iJctcrmined by kngth of St;'.rvicc in the college, who shall hold office for one academic year." '

In the writ petition filed before the High Court, the app~Jlant c1m-- u:11ucd that Statute 14 A ahrid, gcd its fundamental right under Article .ltl( I).

But the High Court negatived the con:ention holding that even if Statute l '1 A is implemented by the religi.ou;; m!nority, the right of the minority to administer the educational insl!tution woulJ not be take11 away w destroyed and dismissed the writ petition.

t should have thought that the matter was concluded by th~ .decishm , of this Court in Ahmedabad St. Xavier's College Soriety v.

Szate of Guiarat(l). Section 33A(l)(a) of the Gujarat University Act, 19~9, which fell ior consideration m that case, amcng other matters, read :

"33A (I) Every college (other than a Government college or a college maintained by the Government) affiliated before

tllr. commencemrnt of the Gujarat University (Amendment) Act. 1972 {hcreina!'tcr in this section referred to as 'such commencement')-

t.<U , fflafl be under the management of a gavcrning body

which sh2:11 include amongst its members the Principal of the College, a representative of the University nominated by the Vice Chancellor, and three repr::- sentatives of the teachers of the college and at least one representative each of the members of the non-teach-. ing staff and the students of the college, to be elected respectively from amongst such teachers, members of the non-teaching staff and students."

This provision was challenged in that case as violating the fundamental

right under Article 30( I) of the minority community in question there.

This Court held by a majority that the provision was bad as it offended

tht! fundamental right of the religious minority under Article 30 (I) to G a\Jminister its educational institution. The reason was that the provision required the inclusion, in the governing body of the college, of per- sons whom the religious minority did not want to include. When Article 30(1) speaks that a religious or linguistic minority has the right to administer educational institutions of its choice, it means that the rlg; ht m carry on the administration of the institution must be left to the managing body consisting of persons in whom the religious or linguistic H mioority has faith and confidence..

I ). C.C. 717.

GANDHI FAJZEAM COLLEGE v. AGRA UNIV. (Mathew~ !.) 8 13;

The learned Chief Justice, speaking foc himself and 1'alekar, J., aiter referring to the provisions of s. 3JA(l) (a) said m that case that

rnc right to administer is the right to conduct and manage the affairs of the institution and that this right is exercised "through a body of per- ; uns i11 whom the founders of the instil ution :iave faith and confidence and who have full autonomy in that sphere".

He further said that the nghr to administer is subject to permissible regulatory measures and'

that pnnissible regulatory measures are those which do not restrict the. nght ot adnumstratJon but facilitate it and ensure better and more effective exercise of the right for the benefit of the institution and through the instrumentality of the management of the institution and w1tl1out displacing the management.

He was of the view that if the udmilllsiration has to be improved, it should be done through the agency vr thc iustrnmcntality of the cxis1ing management and not by displac• ing i1.

The learned Chief Justice further observed that autonomy ia administration means right toadminister effectively and fo manage and conduct the affairs of the institutions, that the right of administration means day to day administration and that the choice in the personnel of

management is a part of th~ administration.

He concluded by saying :

"The provisions contained in Section 33A(l) (a) of the Act have the effect of displacing the management and entrusting it to a different agency.

The autonomy in administration is lost.

New elements in the shape of representatives of different types are brought in.

The calm waters of an institution will not only be disturbed but also mixed.

These previsions in Section 33A(l) (a) cannot therefore apply to minority institutions."

Jaganmohan Reddy. J. speaking for himself and Alagiriswami, J .. agreed with the view expressed by. the learned Chief Justice on the ques-· tion of the validit~_of s. 33A(l) (a) in its application to lbe minority.

Khanna, J. in his concurring judgment said that the argument that a law or regulation could not be deemed unreasonable unless it was totally destructive of the right of the minority to administer educationaf institi1tions was fallacious and wa5 negatived by this Court by its previous decisions and that a law which ·

'" .... interferes with the minorities choice of a governing body or management council would be violative of the,-/ . right guaranteed by Article 30 (1). This view has been cdnsistently take'! by this Court in the cases of Rt. Rev. S. K,,

Patro, Mother Provincial and D. A. V. College (affiliated to the Guru Nanak Umversity) (supra).

"Section 33-A which provides for a new governing body for the management of the college and also for selection committees as well as the constitution thereof would consequently have to be quashed so far as the minority educational institutions are concerned because of the contravention of Article 30(1) ."

On behalf of Chandrachud, J. and myself, I said :

"The requirement that the college should have a governing boay which shall include persons other than those who are members of the governing body of the Society of Jesus would take away the management of the college from the governing body constituted by the Society of Jesus and vest it in a different body. The right to administer the educational institution established by a religious minority is vested in it. It is in the governing body of the society of Jes us that the religious minority which established the college has vested rhe right to administer the institution and that body alorie has the right to administer the same.

The requirement that the

ollege should have a governing body including persons -other

than those who constitute the governing body of the Society

lt Jesus has the effect of divesting that body of its exdusive !ight to manage the educational institution. That it is desirable in the opinion of the legislature to associate the Principal .of the college or-the other persons referred to ins. 33A(l) (a)

in the management of the college is not a relevant considera- 1ion. The question is whether the provision has the effect <>f divesting the governing body as constituted by the religious minority of its exclusive right to administer the institution.

Under the guise of preventing maladministration, the right of rhe governing body of the college constituted by the religious minority to administer the institution cannot be taken away."

In State of Kerala v. Mother Provincial(!) this Court said that "Administration means management of the affairs of the institution, .that the management must be free of control so that the founders or

their nomiBees can mould the institution according to their way of thmking and in accordance with their ideas of how the interests of the community in general and the institution in particular will be best served and that no part of this management can be taken away and vested in another body without an encroachment upon the guaranteed right." 'Sec:tions 48 and 49 of the Kerala University Act, 1969 which came up for consideration in that. case respectively dealt witp the governing body for private colleges not under corporate management and the managing council for private colleges under corporate management. Under the provisions of these sections, the educational agency or the corporate management was to establish a governing body or a managing council respectively.

The sections provided for the composition of the two bodies. It was held that the sections had the effect of abridging the right to ad111inister the educational institution of the religious minority in question there.

One of the grounds given in the judgment for upholding the decision of the High Court striking down the sections is that these bodies had a legal personality distinct from governing bodies set up by the educational agency or the corporate management and that they were not answerable to the founders in the matter of administration .of the educational institution. The Court said that a law which

GANDHI FAIZEAM COLLEGE v. AGRA UNIV. (Mathew, J.) 8 i 5

interferes with the composition of the governing body or the managing council as constituted by the religious or linguistic minority is arr abridgment of the right of the religious minorities to administer the educational institution established by it [see also W. Proost v. Bihar( 1) and Rev. Bishop S. K. Parra v. Bihar(") ]. .

The determination of the .composition of the body to l!_dminister the educational institution established by a religious minority must be left to the minority as that is the core of the right to administer.

Regulations to prevent maladministration by that body are permissible.

As the right to determiae the composition of the body which will administer the educational institution is the very essence of the right to administer guaranteed to the religious or linguistic minority under Artilce 30(1), any interference in that area by an outside authority cannot be anythi•.ig but an •abridgment of that right.

The religious or linguistic minority must be given the freedom to constitute the agency through which it proposes to administer the educational insti(ution established by it as that is what Article 30 (1) guarantees. The right to shape its creation is one thing : the right to regulate the mam1er in which it would function after it has come into being is another. Regulations are permissible to prevent maladministration but they can only relate to the manner of admh1istration after the body which is to administer has come into being.

The .provisions of Statute 14A are in pari materia with those of s.33A(l) (a) of the Act which fell for consideration in Ahmedabad St. Xavier's College case (supra) except that only the principal and the senior-most member of the staff alone are required to be included in the ma1.1aging committee of the college in question here.

Bttt, in principle, that makes no difference. ihe principle, as I said, is tlfat the minority community has the exclusive right to vest the administr<}tiOO. of the college in a body of its own choice, and any compulsion from an outside authority to include any other perso.1 in that hody is lln abridgment of its fundamental right to administer the educationa1 institution. ·

It is, no doubt, true that it is upon the principal and the teac.hers that the whole temper and the tone of a college depend.

But ttiat does ;1ot mean that the. principal a9d the teachers should be members

of the governing council of a college .. It was only in the co!frext:o( the right of the religious or linguistic minority to appoint the pripeipal and teachers of the college established by it that we said h1 Ahmediib, od- St. Xavier's, College case (supra)

"It.is upon the principal and tachers of a college that the tone . and temper of an. educational institution depend.

On them would depend its reputation, the maintenance of discipJit.1e and its efficiency in teaching.

The right to Choose the principal and. to have the teaching c0',1ducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important

(2) (1969] 1 s.c.c. 863.

A facet of the right to administer ari educational/ institution.

W ,' can perceive "10 reason why a representative; of the Univ..:rsity nominated by the Vice Chancellor shou\tl be on the S:.kction Committee for recruiting the Principal or for the

in.<.iscnce of head of the department besides the ., representative of lhc University being on the Selection Committee for 1Tcruiting the members of the teaching $taff. So long as the pwons chosen have the qualifications prescribed by the University. the choice must be left to the management.

That is part of the fundamental right of the minorities to administer the educational institution est•ablished by them."

While affirming tlic correctness of the observatici.1 in the context in which it was made, I think it necessary to repudiate its relevance and application here.

I would, therefore, allow the appeal without any order as to costs. c

KRISHNA IYER, J.-Our essay in this appeal is to interpret and apply Art. 30 of the Constitution, illumined by the ratio of the recent D leading case on the constitutioaal rights of minorities vis a i>is educational institutions where a Bench of 11 Judges handed down six opinions on the thorny issue.

As we proceed to Judgment, we are reminded of two famous American observations. Chief Justice Marshall, while deciding the celebrated McCol/och v.

Maryland Case(!) made the pregnant remark : 'We must never forget that it is the constitution we are expounding'.

Governor Hughes, soon te E ascend the lJ .S. Supreme Court, said : 'We oare under a Co.1stitution, but the Constitution is what the Judges say it is.' Reverentially guided and bound by great precedents but mindful of the luminous texts 1md goals of he Constitution itself, we have to attempt the task.

The l;!cts of the present case are virtually admitted, the precedent that binds us is of fresh vintage but the legal test when applied to F this concrete case-situation is fine, if nqt baffling.

Of course, the only area for judicial exploration is decoct the rule from the ruling and fit it to the admitted facts.

The appellant is a registered society formed by the members of

th~ Muslim community at .Shahjehanpur. Indubitably, the community ranks as minority in the country and the educational institution run G by it has been found to be what may loosely be called a 'minority institution,' within the constitutional compass of Art 30. The ear:lier history of the institution need not detain us and a rapid glance at its evolution is enough. The A. V. Middle School was the off-spring of the effort of the Muslim. minority resident in Shahjehanpur Di:; trict.

Ii: later bec:ame a High School and afterwards attained the status of •an Intermediate College.

Even~ H tually it blossomed into a degree college affiliated to

(I) 4 Wheaton 316, 407.

GANO, ll FAIZEAM COLLEGE v. AGRA UNN. (Krishna /y!.'I', J.) 8 Ii

the University of Agra. lo 1948, on the assasination of the Father of the Nation, this college was commemoratively renamed as Gandhi Faiz-e-am College. In August 1964, an applieation was made on behalf of the college management to the University for permission to start teaching in courses of study including Sociology, Sanskrit, Arabic, military studies, ch'awing a~1d painting.

The University entertained the thought that a new organisational dL5cipline mllst_ be brought into the institution and insisted, as a condition of recognitlbn of these additional subjects as course of study, oh certain mutationN~- the admr.1istrative body of the college.

The bone of contention before us, as was before the High Court, is th•at this prescription by the University, in tune:with Statute 14-A framed by it, is an invasion of the fundamental ri&ht guaranteed to the minority comm1p1ity under Art. 30 of the Constltut1on of India.

The High Court has negatived the plea of the management a!ild the appe'al issues from that decision.

What i~ the core of the restriction clamped down by Statute 14-A '!

What is the ca,1sciencc and tongue of Art. 30? If the former is incongruous with the latter, it withers as void; otherwise, it prevails and binds.

That is the crux of the controversy.

The minority college is administered by a three-tier body organised h1tra-murally by the Society. No outsider has entered the precincts of management, which has all along remained with the members only.

The General Council with plenary powers, the Governing body more circumscribed yet effective as policy-maker and the Managing Committee, the day-to-day administrative sub-agency-these arc the organs vested with controlling power, under the relevant rules of the Society.

The essential point is that the Society is that the Society is autonomous and its organs administer the i•astitution.

The University directive, backed by Statute 14~A. it is contended, forces two persons on the area of administration.

This is argued to be a serious erosion of the great right guaranteed to cultural and rcli~ gious minorities. Statute 14-A, may at the outset, be reproduced :

"14-A. Each college, already affiliated or when affiliated, which is not maintained exclusively by Government must be under the Management of a regular constituted Governing body (which term includes Managing Committee) on which the staff of the college shall be represented by the Principal of the college and at least one represent•ative of the teachers of the college to be .appointed by rotation in :order of seniority determined by length of service in the college, who shall hold .office for one academic year." ·

Emboldened by this provision, the Registrar of the Agra University has made the impugned demand which ru'as thus :

6-LS64SCI/7S

Agra U11irersi1y

From

Sri R. N. Pathak, Asst. Registrar (Affiliation), Agra University. Agra.

The Principal, G. F. College, Shahjahanpur.

[ 19751 3 ~:.C.R..

No. Aftl/7965 Sir,

Dated Agra, 24 Apr. 1965 c

With rcforcncc to your application dated December I , 1964 re~ cognition in c:ertain subjects upto the B. A. standard, I am to inform you that the Executive Council at its meeting held on April 10, 1965

after considering the report of the Inspectors on the inspection ol' your college and the recommendations of the relevant committee thereon decided that recognition applied for upto the B. A. Standard be not granted to the college unless provision is made in the constitution for representation: ef the,. Principal irnd one Head of Department to be chosen in order of seniority every year on the Managing Committee of the college and other condit'ions have been fulfilled.

I am therefore to request you to take immediate steps to implement the afo:rcsai<l decision of the Council and let me know that you have done so. On receipt of your reply th.c inattcr will be further considered.

Yours faithfully.

Sd/- R. N. F'athak Asst. Registrar (Affi)" Maybe, we may as welt' mention the stand taken by the Management of the College in the cqrrespondence with the Registrar.

Tn one reply it \Vas :represcptcd : ·

"From

The Prcsidcnt1, Managfug Committee, G.F. Collcg~ Shahjahanpur.

The Deputy Registrar (Affl), Agra Univcrsity.

No .. 660 Dated, Shahjaha.npur,

Nov. 22, 1965

GANfJllI FA!ZEAM COLLEGE v. AGRA UNIV, (Krislt11a Iyer, J.) 8 l 9

Sir.

With reference to your letter no. Afll/1336, dated August 31, 1965 and subsequent reminder dated October 20, 1965, I have the honour to s:.iy that we arc very grateful to the Univers, ity for its acceptance of the minority status of our college.

While mentioning that the University has no legal power to interfere iu our right to administer the institution, we are willing, to make the inclusion of the Principal and one Head of Department by rotation obligatory in the Governing Body as proposed ~.1 the written legal opinion of our counsel, (relevant extract of which has been forwarded to us along with your letter under reference), simply for the reason that we arc very anxious to keep up smooth and cordial relations with the University.

The learned Vice-Chancellor is, therefore, requested to grant us affiliation in all the new subjects in respect of which our applications arc pending at a very early date, to en.able us to make the necessary pre.parations, which are likely to take sufficient time, to start the classes in those subjects from the beginning of the next session.

D We undertake to amend our constitution suitably to give the proposal a pmctical shape within three months after the receipt of your kind reply.

An early disposal of this letter is solicitecl.

Yours faithfully, Sd/-........ '.·.

President, Managing Committee, G. F. College~

Shahjahanpur." This concession was retracted allegedly because the University took 110 Mcps accepting it and a writ petition was filed ch•allenging the

virs of the Statute 14-A and legality of the directive.

If rilliancc had been placed by the University, on this concession of the Manageme.nt as amounting to a waiver of the fuildamental right. thereby making short shrift of the dispute, it would have been difficult for us to accede to the plea. Indeed, wisely no plea of waiver of the Fundamental right l1as been put forward and perhaps none can be, in this branch of constitutional jwisprudence. We are therefore concerned with discerning the parameter o[ 'minority' right in Art. 30.

A stream of Supreme Court rulings commencing with the Kera/iJ Education Bill Case (') and climaxed by St. Xavier's College Case( 2) has settled the law for the present, and the last refers to the prccedcntial past.

We will confine ourselves largely to the currently final pronouncement; but where did the Court draw. the delicate line between unconstitutional conditions and constitutional-re1?U!ations ?

A certain thread of una.nimi~ exists among the manv opinions and that common ground-not ind1v, idual deviations and differences-must be the basis of our judgment. Right at the beginning we must observe -·-w--•

(I) [l9S9] S.C.R. 995. i

(2) A.l.R: {1974] S.C. 1389.

that the whole (:dificc of case law on Art. 30 has been bed-rocked on the Kera/a Ed11catio11 Bill Case (upra).

The greaccst common measure of agreement among the various opinions in St. Xm1ier's College case (sup.ra) will have to be ascr taincd.

Ray, CJ., following Das CJ. (m the firs~ Kerala Cas.:·), has taken middle view, if one may say so with great respect. 'Hands-off Administration altogether' is a !<ill call today; but 'hand-culI managements into uniformity is also not the correct rule. A benignantly regulaied liberty which neither abridges nor exaggerates autonomy but promotes bctll'r pi:rformance is the right constmction of the constitutional provision.

Such an approach cnabks the fundamental right meaningfully to fulfil its tryst with the minorities' destiny in a pluralist polity.

That is the authentic voice of Indian democracy.

To regulate, be it noted, is not to restrict. but to facilitate effective exercise of the very right.

The constitutional i:state of the minorities should not be encroached upon, neither allowed to be neglected 'Jor maladministcrcd.. This quintcsence of the decision may now be aptly hornc out by pertinent excerpts from the various judgments.

''The right to administer is to be tempered with regulatory measures to facilitate smooth administration. The best administration will reveal no trace or colour of minority. A minority institution should shine in exemplary clcctricism iu the aclministration of the institution" (at P. 1398) "Regulations which will serve the interests of the students, regulalilins which will serve the interest of the teachers arc of pare.mount importance in good administration. Regulations in the interest of efficiency 0£ teachers, discipline and fairness in administration arc necessary for preserving harmony among aflitiated institutions." (at p. 1398) "Autonomy in administration means right to admi11ister effectively and to

manage and . conduct the affairs of the institutions ..... .

The University wiJJ always have a right to see that .ther~ is fll) mal .. administration.

If there is mal-administration, the university will take steps to cure the same. There may be control and check on administration in order to find out whether the minQrity institutions arc engaged in activities which arc not conducive to the interest of the minority or to the requirements of the tca.:hers and the students." (at p. 1399).

The 'iuncr voice' of the whole pronouncement should not be muffled while reading the particular result in the case and that it happilv expressed thus : "The right conferred 011 the religious and Jinouis-tic minorities to administer educational institutions of.

0 their d1oicc is not an absolute right.

This right is not free from reiiulation.

Just as regulatory measures are necessary for maintaining the cducatior.i; ll character and contcat of minoritv institution!: similarly regulatory measures are nccesmry fo;

GA:\DHJ FAIZEAM COLLEGE r. AGRA UNIV. (Krishna Iyer,/,) 8 ll I

ensuring orderly, efficient and sound administration.

Dast C.J., in the Kera/a Educatio11 Bill Case (supra) summed up in one sentence the true meaning of the right to administer by saying that the right to administer is not the right to maladminister." (at p. 1396) Mr. Justice Jaganmohan Reddy summed up the law at the threshold :

"The right of a linguistic or religious minority to administer educational institutions of their choice, though couched in absolute terms had been held by this Court to be subject to regulatory measures which the State might impose for furth_ering the excellence of the standards of education." (at p. 1401)

Mr. Justice Khanna stressed what is s-vmetimes ill-remembered :

"The idea of giving some special rights to the minorities is not to have a kind of a privileged or pampered section of the population but to give the m_inorities a sense of security and a feeling of confidence." ( af p. 1415).

The learned Judge, after visualising.the abundant catholicity of the guarantee in favour of minorities in our multi-cultural country, insisted that regulations for the welfare of the institution were not constitutional anathema :

"It is, in my opinion, permissible to make regulations fur ensuring the regular payment of salaries before a particular date of the month. Regulations may well provide that the funds of the institution should be spent for the purposes of OO!.lcation or for the betterment of the institution and not for extraneous purposes." (at p. 1422)

And, after itemising, illustratively other permissible constraints, observed:

"A regulation which is designed to prevent mal-ad- . ministration of an educational institution cannot be said to offend clause (1) of Article 30. At the same time it has to be ensued that under the power of making reguations nothing is done as would detract from the character of the institution as a minority educational institution or which would impinge upon the rights of the minorities to establish and administer educational institutions of their choice." (at p. 1422)

"As observed by this Court in the case of Rev. Sidhrajbhai Sabhai ( 1963 3 SCR 837), regulations which may ]awfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as minority institution effective as an educational institution. Such regulation must satisfy a dual test-:-the test of reasonableness, and the test that it is regulative of the

educational character c4 the institution and is conduive .to

makin~ the institution an effective vehicle of education for the minority community or other persons who resort to it."

(at p. 1422:) bi the context of affiliation of rollegcs, the learned Judge concrcti scd the law thus :

"The said authority can always prescribe regulations and insist that they should be .complied with before it would grant affiliation or recognition to an educational institution.

To deny the p0wer of making regulations to the authority concerned would result in robbing the concept of affiliation or recognition of its real essence." (at p. 1423) "It would be wrong to assume that an unrestricted right a> in Article 30 postulates absence of regulations. Regulations can be prescribed in spite of the unrestricted nature of the right.'' (at p. 1423)

Jn short, the view which appealed to Khanna J., shows that the law, to be constitutional, should not impair the minorities' right but may be promotional in the sense of making the purpose ol the institution more productive.

One \Jf us, sitting on that Bench (Mr. Justice Mathew) has illumined the amplitude of the right under Art. 30 but has not dissent•::d from the validity Of putting on that right regulatory harness. In a pithy statement, this point has been made by the learned Judge : 'No right, however absolute, can be free from regulation' (at p. 1441).

The spiritual seed of this thought is found in the Holmesian obse'Tvation extracted by him :

"All rights tend t\J declare themselves absolute to their logical extreme.

Y ct all in fact are limited by the neighhourhOod of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point 1s reached." (at p. 1441) .

• With specific rcforence to 'affiliation' these guidelines fell from tlte learned Judge : ·

"Recognition or. affiliation creates an interest in the universitv to ensure that the educational institution is maintained for the purpose intended and any regulation which will subserve or advance that purpose will be reasonable and no educational institution established :and administered by a religious or linguistic minority can claim recognition or amliation without submitting to those regulations. That is the price of reco1nition or affiliation .. . . In other words rcoognition or affiliation is a facility which the university grants to an educational institution." (at p. 1442) Justices Beg and Dwivcdi have stretched the regulatory power further than the majority, holding that it is an illusion for a minority

GANDHI FAIZEA:M COLLEGE l'. AGRA UNIV. (Krishna Iyer, J.) 8 23

A to claim absolute immunity. The thrust of the case is that real rcgu- . lations arc desirable, necessary and constitutional but, when they operate on the 'administration' part of the right, must be confined to chiselling into shape, not cutting down out of shape, the individual personality of the minority.

The discussion throws us back to a closer study of Statute 14-A B to see if it cuts into the flesh of the Managements' . right or merely tones up its health and habits.

The two requirements the University asks fur arc that the Managing Body (whatever its name) must take in (a) the Principal of the College; (b) its seniormost teacher. Is this desideratum dismissible as biting into the autonomy of management or tenable as ensuring the excellence of the institution without injuring the essence of the right ? On a careful reflection and conscious C ot the constitutional dilemma, we are inclined to the view that this case falls on the valid side of the delicate line. -Regulation which restricts is bad; but regulation which facilitates is good.

Where does this fine distinction lie? No rigid formula is possible but a flexible test is feasible.

Where the object and effect is to improve the tom: and temper of the administration without forcing on it a stranger, however superb his virtues be, where the directive is not to restructure D the governing body but to better its perfom1ance by a Q1arginal catalytic induction, where no external authority's fiat or approval or outside nominee is made compulsory to validate the Management Board but inclusion of an internal key functionary appointed by the autonomous Management alone is asked for, the provision is saluc tary and saved, bcil\g not a diktat eroding the freedom of the free- . doru.

E A dichotomy is sometimes drawn in this branch of juridical dis- cussion. /More plainly, the difference drawn is between creating a Managing body by .. the minority community and regulation of the manner of its functioning to obviate maladministratio.n. The former i§ ordinarily beyond the pale of legislative prescription while the latter is permissible as a preservative. Broadly, this is sound, but as a rigid F logical follllula, it breaks down.

For, some regulations may impinge marginally upon the romposition of the administrative organ though manifestly meant to save the institution from mismanagement.

Just one or two examples. If the Jaw says that a person sentenced for a prescribed period of imprisonment for breach of trust or an undischarged insolvent would be disqualified to. be the treasurer or one who has been removed from public office for moral delinquency or G has been punished for outraging the religious feelings of the very minority under s.295-A, I.P.C; should not hold office on the governing body, such a relation affects the structure of the _governing body but is indubitably a protection against likely maladministration.

Likewise, supposing the management has to award scholarships to students of merit, decide on courses of study to be undertaken, regulate techer-students comitv and discipline, who but the Principal n chosen by the minority itself will be better on the Committee to l!Uid.:

it in these vital affairs. These fine but real lines cannot be obfuscated bv excessive emphasis on the character of the organ as against its method of working.

Men matter in extm11c situations.

SUPREMB'COURT REPORTS (19751 3 s.c.R. ·

This perspective helps us discern the points made by either side.

The pith of Shri Fmnk Anthony's submission is that the command of the University to include even the Principal, the bead appointed by that very Management to be in plenary charge of the education imparted in the college, is an &was ion. of the minority right. ·· Freedom from any form of external press1:1re, however well-meant and bcnefidcnt, is the soul of the right to administer, if one may pamphrase his contention. This is simply countered by the words of Khanna J :

"It would be wrong to assume that an unrestricted right as i•.i Article 30 postulates absence of regulations. Regulations . can be prescribed in spirt of the unrestricted nature of the

right." (at p. 1423)

All th~ other learned Judges who are party to St. Xavier (supra) and all th:: earlier rulings have negatived the untouchable absoluteness urged by the managements.

Equally fallacious is the simplistic submission which appears. to have appealed to the High Court th-at Art. 30 is disturbed only when the right is destroyed, not when it is demaged. St. Xavier (supra) has dispelled doubts in this behalf: Abridgement of the constitutional right is as obnoxious as annihilatjon.

To cripple is to kill.

Steering clear of these unconstitutional shoals let us again feel our way through the controversy.

First, the princip>al. In the eloquent words of one of the> learned Judges (Mathew, J.) in St. Xavier's case

(supra) :

"It is upon the principal and teachers of a college that the tone and temper of an educational i11stitution depend.

On them would depend its reputation, the maintenance of discipline IUld its efficiency in teaching.

The right to choose the princqml and to have the teaching conducted by teachers appointed by the mai.1agement after an overall assessment of their outlook and philosophy is perhaps the most important facet of the right to administer an educational institution." (emphasis ours)

This strategic appointee must be chosen by the management with :>edulos care and his choice should not be 'externalised' by regulations.

All right. But for the excellent reason that the principal is the vital, vibra!at and luscent presence within the educational campus, no administration can bring out its best in the service of the institution sans the principal. To alienate him is to self-inflict wounds; to associiate him is to integrate the academic head into the administrative body for the obvious betterment of managerial insight and proficiei,1cy.

is no stranl!er to the college but the commander appointed by the m'anagement itself. A regulation which requires his inclusion in the H

~ :t

Govcminl( Council imposes no external element nor exposes the college to the espionag•~ of one with dual loyalties.

His membership on the ,_ floatd is a blessing in many ways and not a curse in any conceivable

c;\SDH! FAiZEAM COLLEGE r., AGRA UNIV. (Krish11a Tyer,/.) 8 25

way. After all the functions of the Managing Committee, as set down, in bye-law 15, are :

"15. . The Managing Committee shall-

( a) .Dispose of applications for, scholarships and concession etc., received by the Secretary or any other person.

(b) Check and pass account kept by the treasurer, Secretary or Principal.

(c) Have powers to appoint, suspend, remove or otherwise punish or dismiss any servant of the school or college or give them promotioi,1 or make reductions in their salaries and , grant them lcavc, in accordance with the Agra University rules as the c:ase may be.

Provided that in c-ase of dismissal or removal or fine exceeding one month's pay or suspension for a period exceeding cine month, an appeal shall lie to the Governing Body whose decision shall be final.

The period for fillag the appeal shall be 15 days from the receipt of the order again~! which the appeal is to be preferred. .

(d) See that the property of the institution, whether movable or immovable, is , properly managed and cpl.

(e) Gcneralty supervise the work of all the Office bearers.

(f) To pass the annual budget, annual report and dispose of the audit note.

(g) To sanction expenditure upto Rs. 25,00P/- in the course of one year, irrespective of the budget provisiQl,1s.

(h) To acquire by purchase, mortgage or otherwise immoveable or movable property for the institution and to sell or otherwise dispose of movable p_roperty."

n acivist pincipal is an. asset in di.schargin$ these duties. wlich: arc mextncably mterlaced with academic functions.

The 1mnc1pal is an invaluable insider-the Management's own choice-not an outsider answerable to the Vice-Chancellor. He brings into the work of the Managing Committee that intimate acquaintance with educational operations and that necessary expression of studei,1t-te-acher aspirations and complaints which are so essential for the minority institution to achieve a happy marriage between individuality and excellence. , And , the role of the seniormost teacher, less striking maybe and more un• obstrusive, is a useful ffiput into managerial skills, representing_ as be does the teachers and being only a seasoned mir.ion chosen oy the management itself.

After all, two creatures of the Society on a 16member Managing Committee can bring light, not tilt scales.

Moreover, the Managing Committee .itself is' subject to the hierarchical control of the Governi'ag Body, and the General Councit

W..:, see no force in the objection to the two innocuou~ insider> , being seated on the Managing Committe<",

, A The various decisions .of this Court where legislative fetters have . been struck down are cases in contrast. There the rules maim;· here. they improve.

There the input upsets the baJ~.1cc; here the addition is minimal and strengthens from within.

There, arc external mandates to approve; here an internal principal is proposed to be dovetailed to make administration more proficient without injury to independent .action. In the Kera/a University Act Case(') the vice of ss. 48 and

~9. summarised by R.ay C.J., in St. Xavier {supra) was stated thus

 "Those sections were found by this Court to have effect of displacing the administration of the college and giving it to a distinct corporate body which was in no way answerable to the institution. The minority community was found to ·

lose the right to adrni.1ister the institution it founded. The c governing body contemplated in those sections was to administer the colleges in accordance with the provisions of the Act, statutes, ordinances, regulations, bye-Jaws and orders made thereunder. The powers and functions of the governing body, the removal of the members and the procedure to be followed by it were all to be prescribed by the statutes.

These provisions amounted to vesting the management and t> administration of the institution in the hands of bodies with mandates from the University.'.' {at p, 1397)

\ ' Likewise in Rev. Fr. IV. Proost(3 ) the mischief w3s summed up fa the St. Xal'ier Case by Ray C.J., in these words :

"This Court in Rev. Fr. IV. Proost Case(') held that i: s.48-A of the Bihar Universities Act which came into force from 1st March 1962, completely took away the autonomy of the governing. body of St. Xavier's College established by the Jesuits of Ranchi. Section 48-A of the said Act provided inter alia that appointments, dismissals, removals, termination of service by the governing body of the College were to be made .on the recommendation of the University Service Com- F mission and subject to the approval of the University. There were other provisions in that section, viz., that the Commission would recomme.1d to the governing body names of persons in 'order of preference and in no case could the governing body appoint a person who was not' recommended by the University Service Commission." {at p. 1397) .

Again, the same judgment pinpoints in these brief words, the uncousti- 1utional sting in the Bihar Case viz. Rt. Rev Bishop Patro(•) :

. "In Rt. Rev. Bishop S. K. Patro v. State of Bi/iar(•) the State of Bihar requested the Church Missionary Society School, Bhagalpur to constitute a managing committee of the

(I) Stalpf Kera/av. Ver.11 Rei. JfrJther Prorbrcia/; [1971] .J s.C.R. 734.

-(2) (t959J 2 S.C.R. 73.

O) [1970] t S.C.R. 11!.

c; A,.DHI FAIZE.•M COLLEGE I'. AGRA UNIV. (Krishna Tyer, J.) 827

school in accordancc with an order of the State.

This Court held that the State authorities could not require the school to constitute a managing committee in accordance with thdr order." (at p. 1397)

The G11jarat Case of St, Xavier (supra) is a study. in contrast, as stated earlier. Sections 40 and 41 ands. 38 shackled the management, trenching seriously upon the right to administer. The law, as now expounded, regards this excess as unconstitutional. ·

In all these cases administrative ai; tonomy is imperilled transgress" ing purely regulatory limits. In our case autonomy is virtually left intact and refurbishing,. not restructuring, is prescribed; . The. core of the right is not gouged out •at all and the regulation is at once reasonable and calculated to promote excellence of the institution-a text book instance of constitutional conditions. ·

To project in bold relief the intrusion into the administration of the provisions in the 2nd Kerala Case (supra), the D.A.V. College Care(I) and St. Xavier's Case (supra) as against the innocuous prescriptions bearing on management in the preSC''1t case, we may make a vivid comparison of the clauses. A chart may speak with eloquent clarity :

(I) (1971] Supp. S.C.R. 68~.

- . - .. _ _i

Krala University Act

(I)

S. 48-Goveming body for private college not under corporate management- (!) The educational agency of a private college, other than a private college under a C()rporate managemtnt, shall constitute in accordance with the provisions of the statutes a governing body consisting of followinu members, namely:

(a) the principal of the private college;

(b) the manager of the private college;

(c) a person nominated by the university in accordance with the Provisions in that behalf contained in the .statutes;

(d) a .person nominated by the Government;

(c) a person rkctcd in accordance with such procedure as may be prescribed by the Statutes from among themselves by the permaneRt teachers of the private college; and

ff) not more than six persons nominated . by the educational agency.

(2) The governing body shall be a body corporate having perpetual succession and a comrnon seal.

(3) The manager of the private college shall be the Chairman of the go1•erning body.

(4) A member of the governing body shaU hold office for a period of four years from the date of its constitution.

(5) It shall be the duty of the governing body to administer the private college in accordance with the provisions of this Act and the Statutes, Ordinances Regulations rules, Bye-Jaws and Orde 1'5 made thereunder.

Guru Nanak University

Statutes (D.A. V. College)

(2)

Statute 2 {I) (a)

A college applying for admission to the privileges of the University shall send a letter of application to the Registrar and shall satisfy the Senate:

(a} That the College shall have a regularly constituted governing body consisting of not more than 20 per sons approved by the Senate and iri eluding, among others, 2 representatives of the University and the Principal of the college ex-officio.

GANDHI FAIZEAM COLLEGE '" AGPA UNIV. (Krishna Iyer, J.) K 2 9

Gujarat University Act (St. Xavier's College Case) Statute 14-A . (impugned in the instant case)

3 -------·----·.r------··---

3J.A.(I) Every college (other than a Government college or col- . lege maintained by tho Government) . affiliated before the commencement of the Ouj.:lrat University (Amendment)-Act, 1972 (hereinafter in this section referFed to as such commencement')-

(a) shall be under the management of a governins body which shall include amongst its members the Principal of thef college, a representative of the University nominated by the Vice• Chancellor and three representatives of the teachers of the College and at least one representative each of the members of the non-teaching staff and the students of the college, to be elected respectively from amongst such teachers members of the non-teaching staff and students; and

(b) that for recruitment of the Principll and members C\f the teaching staff of a college there is a selection committee of the college which shall include-(1) in the case of recruitment of the Principal, a representative of the University nominated by the Vice- Chancellor, and

(2) in the case of .recruitment of it member of the teaching staff of the college, a representative of the University nominated by the Vice-Chancel!or and the Head of the Department, if any, concerned with the subject to be taught by such member.

(2) Every college referred to in subs~tion (I) shall,-

(a) within a period .of six mont.hs after such commencement,' constitute or reconstitute 1 , 'its governing

bod~ in conformity with sub-section (l) , and (b) as and when cccasion first arises after such commencement, for recruitment of the Principal

14.A. Each college, already affiliated or when affiliated , which is not maintained exclusively by Government must be under the Management of a

re8'!1ar . constituted Governing body (which. term inludes Managing Conumttee) on which the staff of the college shall be represented by tbc Principal of the college and' at least one representative of the teachers of the college to be appointed by rotation in order of seniority detennincd by length of service 'in the college, who shall hold otlicc for one academic year.

and teachers of the college, constitute or reconstitute its

scletion committee so as to be in conformity with sub-section (I).

(3) The provisioas of sub-section (I) ' sliaU bC deemed to be a conditiori of affiliation of every college referred to in sub-section (I).

(ll

(6) The powers and functions of the goyeming body, the removal of mem bers thereof and the procedure to bo l'ollowed by it, including the delegation of its powers, sha\.I be prescribed by the Statutes. ·

. (7) otwithstading anything contntned m su!rsoclton (6), decisions of the governing body shall be taken at meeting<; on the basis of simple majority of the members present an.d voting.

S.49-'-Managing . council for pri mte coUcges under corporate management-

(a) one principal by rotation in such manner us mav be prescribed by the Statutes; •

(b) the manager of the private college;

(c) a person nomin3ted by the Uni- ' crsity in aceor'<lance with the provisons in that behalf contained in the Statute:

(d) a per>on nominated by the Government;

(e) two prson> elected in acconlan<:<: with such procedure as may be prescribed by tl1e Statutes from :unong thcmsc!w; by the permanent teachers of all the pril'atc colleges; and

(t) not more: than fifteen persons

nominat~'<I by the educational agency.

(2) The managing council shall be a body corporate having perpetual succession tmd a common seal.

(3) The manager of the private colleges shall be the chairman of the

managing council.

(4) A member of the managing council shall hold office for a period of four years from the date of the Constitution.

(5) It shall be the duty of the managing council to administer all the private colleges under the corporate management in accordance with the proviions of this Act and the Statutes, Ordinances, Regulations, Bye .. Jaws and Orders made thereunder.

[l 97 SJ 3 s.c . R.

(2)

(J,\SDlll FA!ZEAill COLLEGE I', AGRA UNIV. (Krisllna Iyer, J.) s :it

---------·---------~-,-~----- ·---·

(6) The power; aml functions of the managing council, the removal of members thereof and the procedure to be . followed by it, including the delcgatJon of tts powers, shall be prescribed by the Statutes. .

. (7) Notwithstanding anything contained in sub-section (6), decisions of the maaaging council shall be taken at meetings on the basis of simple ma- .jority of the members present and vot-

10g,

S, 63-Power to regulate the manage ire rt of private colleges :-

(4) Iftegoverning body or managing councd, as the case may be, disapproves any decision taken by the University in connection with the management of the private college the matter shall be referred by the governing bLdy or managing council, as the case may be, to the Government, within one month of the date of receipt of the report under subsection (3) who shall there upon pass such order there on as they think fit and communicate the same to the go\'erning bc, dy <lr managing council and also to tc

University.

(6) The manager appointed under sub-section (I) of section 50 shall be bound to give effect tothe dccisic, ns of the University and if at any time, it appears to the University that. the manager is not carrying out its decisions, it may, fer reasons to be recorded in writing and after giving the manager an opportunity of being heard, by order remove him from office and appoint another person to be the manager after consulting the educ•1tional agency. '

In the chart aforesaid, we have confu1ed our attention to the 'managemct1t' facet of the case but may mention that while in the earlier cases even the power to appoint the principal and staff was controlled,

i11 the instant case it is a refreshing contrast.

First the D.A.V. College.

He who runs and reads will discover that Statute 2(1) (a) insists upon (a) a limit to the strength of the governing hotly; (b) the approval of the Senate. of the University for

the constitution of the governing body; and ( c) the inclusion of two representatives oI tho University as also the Principal of the college ex-officio. To legislate for the governing body a rigid restriction on its members is to deprive the minority of its free play in organising its management. To compel approval by the Senate-an outside instrumentality-before the governing body can have legal status. is a violent violation of Art. 30. To foist two representatives of the

SUPREME C:OURT RE!'ORTS ll975] 3 S.C.R.

U11ivcrsity-rank outsiders-is again an infringement of the autorwmy .of the minority institution. The Court, in D.A. V. College case (supra) upheld the complaint of the college nuthorities thus

"In our view there is no possible justification for the provisions contained in Clauses 2 (I )(a) and 17 or Chap. V of the statutes which decidedly interfere with the rights of management of the Petitioners Colleges.

These provisions cannot therefore be made as conditions of affiliation, the non-compliance of which would involve dis-affiliation and consequently they will have to be struck down as offending Article 30( J) ."

Jt is impossible to predicate from the above observations that thi' <.'ourt regarded as obnoxious the inclusion of the Principal of the very college. On the other hand, the more serious encroachment which caved in!o the independent management of the College consists in the first three. provisions which arc deprivatory in character. TI1c present case is a graphic contrast. No ceiling on membership; no unbidtien guests, nominees of the University fobbed off on the Managing Committee. The solitary bu( inconsequential similarity of circumst:incc that there is reference to the Princip1l, there and here, cannot approximate the two cases from. the constitutional angle at all, what with complete hold on staff appointment in the former and none in 1hc latter. ·

The Kera/a Case (supra), as.the table :ibovc shows, insists on the appointment of the Principal himself being controlled, displaces th: minority's Managing Committee by imposing an admixed governing agency of statutory concoction wresting authority from the minority.

A different entity with legislatively limited functions robs the religi-

<lUS group of its right of administration.

The distance between th: Kerala University Act provisions and those of the Agra University Act is considerable an'J the constitutional import too obvious for ;1rgumcnt.

The manacle regulations of the Gujarat University Act arc also tell-talc. Its metamorphic impact is best summed up in the t.:rs~ words of Ray, C.J.

TI1e minority character of the college is lost. \1i1nrity iistitut:ons became part and parcel of the University. Why!

G Because:

"The provisions contained in section 33-A(l)(a) of the Act state tlnt every college shall be under the management of a governing body which shall .include amongst its members, a representative. of the University nominated by the H Vice-Chancellor and representatives of teachers, non-teachir.g staff and stu'dents of the college ... "

GA:'\Di-11 FAIZEAM COLLEGE v. AGRA UNIV. (Krisll'la Iyer, J.) 8 33

"In (1971) l SCR 734 (State uf Kera/a '' Very Rev . . \!other Provincial) this Court said that if the administration goes to a body in the selection of whom the founders have no say, the administration would be displaced. This Court also said that situations might be conceived when they might have a preponderating voice.

That would also affect the autonomy in administration. The provisions c0ntained in section 33-A(l) (a) of the Act have the effect of displacing

th~ management and entrusting it to a different agency.

The autonomy in administration is lost.

New elements in the shape of representatives of different types are brought in. The calm waters of an institution will. not only" be df!>- turbed but also mixed.

These provisions in Section 33-A(l) (a) cannot therefore apply to minority institutions."

(at p. 1399)

The foatures of the Agra University Act vis-a-vis the minority institutions are conspicuously different and leave almost unaffected the total integrity of the administration by the religious group; save in the minimal inclusion of two internal entities namely the principal of

their own choice and the seniormost lecturer indepen'dently appoint- ed by th'em.

We are satisfied that the regulatory clauses challenged before E . us impi:ove the administration and do not inhibit its autonomy and are therefore good and valid.

w~ therefore hold that the statute impugned is not vulnerable nor void. The appeal has to be and is dismissed, but without costs in the c'rcumstanccs of this case.

ORDER

In accordance with the opinion of the ajority. the appeal is dismir.sed without any order as to costs.

V.P.S.

Appeal dismissed.

7-564 Sup CI/75

GANDHI FAIZEAM COLLEGE SHAHAJAHANPUR

UNIVERSITY OF AGRA AND ANOTHER

K. K. MATHEW

V. R. KRISHNA IYER

A. C. GUPTA, JJ.

Art. 30

Art. 30

1971) 1 S.C.R. 734

(1969) 2 S.C.R. 73

(1970) 1 S.C.R. 172

K. K. Mathew

(1975) 1 S.C.R. 173

s. 33A( 1)

Gujarat UniversitY Act, 1949

Art. 30(1)

State of Kera

[1971] 1 S.C.R. 734

[1969] 2 SCR 73

[1969] 1 SCR

863

Frank Anthony

K. L. Hathi

P. C. Kapur

Santosh Chatterjee

G. S. Chatterjee

K. K.

Mathew

MATHEW

Article 30(1)

Saharanpur

Section 33A(l)(a)

Article 30( I)

Article 30

Article 30(1)

s. 3J

Section 33A(l)

Section 33A(l)

Jaganmohan Reddy

Alagiriswami

s. 33A(l)

Khanna

Article 30

S. K

Section 33

Article 30(1)

Chandrachud

Kerala University Act, 1969

Article 30

Ahmedabad St. Xavier's College

KRISHNA IYER

Art. 30

Marshall

Art 30

A. V. Middle School

Shahjehanpur

University of Agra

Art. 30

Art. 30

R. N. Pathak

April 10, 1965

R. N. F'athak

Art. 30

Supreme Court

Art. 30

Ray

Das

Krishna Iyer,/

Dast C.J.

Article 30

1963 3 SCR 837

Article 30

Mathew

Art. 30

Dwivcdi

GANDHI FAIZEA

Krishna Iyer

I.P.C

Fmnk Anthony

Article 30

Xavier

Art. 30

St. Xavier

ss. 48

R.ay

1st March 1962

Ranchi

Section 48

State of Bihar

Krishna Tyer

Sections 40 and 41

D.A.V. College Care(I)

Krala University Act

S. 48

Guru Nanak University

GANDHI FAIZEAM COLLEGE

Gujarat University Act

Krisllna Iyer

Krisllna Iyer, J.) s :it
·---------~-,-~----- ·---·

(6) The power; aml functions of the managing council, the removal of members thereof and the procedure to be .

section 50

Art. 30

Article 30( J)

section 33

Krisll'la Iyer

section 33

Section 33


MAMLESHWAR PRASAD & ANR

KANAHAIYA LAL (DEAD) THROUGH L.Rs.

March 4, 1975

[A. N. RAY, K. K. MATHE"Y AND V. R. KRISHNA IYER, JJ.]

Prarctice a11d Procedure-Judgment given at the instance of the party ill one appeal on the ha.n's it wdu/d dispose of connected appeals on Identical ftu.13 and law-Whether conMcted appeals can be argued on the bosis of earlier j11dgm'e11t beinR i11c11riam.

The question that arose in the three appeals and a connected appeal relalli:d to the jurisdiction of Civil courts under the Delhi Land. Reforms Act to adjud.icat•e on certain questions. The four mi1tters were disposed of by a common judg. ment by the High Court. Special leave having been granted, there were four appeals to this Court. The appellants then moved this Court with a view to save money etc., that one of the four appeals may be got ready and directed to be posted as the matter for decision is common to all. Accordingly, one of

the appeals was he.ard and decided against the appellants. It was, howewr, contended, as regards the other three appeals, that the earlier adjudication was a judgment per incuriam and, therefore, was not binding either on the appella:nts or the Court.

ejecting the 1:ontention,

 HELD : (I) As a result of an application at an earlier stage the appellants got benefits like l'(:duced security deposit and consolidation for printing a:11d hearing on their representation to the Court that the points arising in all the appeals were common and the disposal of one would govern the rest. A litigant cnnnot play fast and lose with the Court.

[836F-HJ Ex Parle Pratt (52) Q.B. 334, referred to.

(2) Ordinarily a decision once rendered must later bind like cases that is, a prior decision of the Court on identical facts and law binds the court on the same points in a fater case. In the present case the earlier decision was ad mittedly rendered on facts and Jaw, indistinguishably identical with those in the other three appeals. [837B, C-D)

(3) In cxc l'ptional and rare instances, where by obvious inadvertence or oversight a judgment failis to notice a plain statutory provision or obligatorY authori' y runnin11 counter to the reasoning and the result reached, it may not havo the sway of a binding precedent. But in the present case, the point abciut the Civil Court's power to go into a land reform litigation had been considered

and adversely decided, so much so, it is not correct for the appellants to say that the matter had, by grave lnadventence been missed. to give rise to any

qt~stion of a judgment given per incuriam.

[835E; 837B-C] Cassel & Cd. Ltd. v. Broome [1972] 1 All. E.R. 301=[1972] 2 W.L.R. 645 and The English Le1?al System by R. J. Walker & M. G. Walker, III [dn ..

Butterwmths, 1972, referred to.

C!vrL APPELLATE ~URISDICTION : Civil Appeals Nos. 2167 to 2169 of 1968. - From the Judgment and Order dated 16th August, 1966 of the Delhi High Court in L.P.A. Nos. 63-D, 65-D & 66-D of 1965.

N. S. Bindra, S. S. Dalal and D. D. Sharma, for the appellants.

V. D. Mahajan, for respondents (In C.As. 2168-69).

Sarjoo Prasad, Uma Mehta, R. K. Mehta and M. L. lain:, for the respondent (inC.A. No. 2167/68). ·

The Judgment of the Court was delivered by

KRISHNA IYER, J. A common judgment of the Division Bench of the Delhi Hign Court disposed of four appeals, the points covered by all being admittedly identical. Special leave was granted by this Court and thus four appeals came into existence here. However, the appel !ants before us moved this Court that with a view to save money and energy, one of the four may be directed to be got ready and disposed of and the others may, thereafter, follow the fate of the first.

On this basis C.A. 2556 of 1966 was heard at length and decided adversely to the present appellants. Shri Bindra, learned counsel for the appellants, submits that the earlier adjudication by this Court amounted to a judgment per incuriam and did not bind him or the Court. He was thus free to argue on the merits, especially the holding on the civil court's jurisdiction, and . the matter was at large.

We have to coli.sider this contention on its merits.

Certain background facts bearing on the narrow question above posed serve to appreciate the point made. The present batch of appeals, as already stated, emanated from a judgment covering them all rendered by the Delhi High Court which itself arose out of a like common judgment of a Single Judge of the High Court and so on down the pyramid to the base viz., the decree of the trial Court. The present appellant had lost the battle all along the line. For brevity's sake, we may content ourselves with the statement that the Courts had been invited to pronounce upon the jurisdiction of the civil court to adjudicate upon the c:ontroversy which related to the Delhi Land Reforms Act with special reference to relevant provisions barring suits. In short the point about the civil court's power to go into a land reform litigation had been considered and adversely decided, so much so it is not correct for the appellants to say that the matter had, by grave inadvertence, been missed. We are not examining the soundness of the actual decision on the merits since indeed we feel that the appeals must fail in limine and no principle of judgment per incuriam can salvage the case.

 At an early stage, an application was made before tpis Court embracing all the appeals, including the present thre.e, which runs thus :

"In the matter of: Civil Appeal No. 2556 of 1966 and

In the matter of Appeals arising from the orders dated 14-8-1968 of the Delhi High Court in S.C.A. No. 186-D/66. 189-D of 1966 and 190-D/66 and

"In the matter of Mamleshwar Pershad and another.

x x x x The petitioners (appellants) accordingly pray that this H Hon'ble Court may be pleased to pass orders

(1) Consolidating the 4 appeals above-mentioned.

(2) Modifying the orders dated 8-12-1966 in S.L.P.

836 SUi'REME COURT REPOkTS £19751 3 s.c.R.

i 366 of 1966 so that the security for the respondents' costs deposited in the said appeal may be considered also as security for the costs of the Respondents in the 3 appeals arising from the S.C.As. No. 186-D, 189-D and 190-D of 1966.

( 3) That in case the appellants are required to furnish further security llpart from . the amount deposited in Civil Appeal No. 2556 of 1966, time may be suitably extended for such deposit and delay in depositing within the time allowed by the Rules may be condoned.

( 4) Modifying the directions regarding the preparation of record so that the proceedings in the High Courts to be printed in the appeal No. 2556 of 1966 be read as record in the three other appealr. afore-mentioned and that the re- . cord for the said three other appeals may' be printed only so as to include the proceedings in the trial Court and the 1st Appellate Courts; and

(5) Such further or other directions may be made as this Hon'ble Court may deem fit in the circumstances of the case."

What needs to be underscored is the appellant's own prayer that the four appeals be consolidated. The reason given is tell-tale :

"That only one judgment of the High Court in the Letters Patent Appeals is impugned before your Lordships in all the

4 appeals abov.:-mentioned. It is therefore in the interest of E justice that the 4 appeals viz., the Civil Appeal No. 2556 of 1966 and the other 3 appeals arising from SCAs No. 186-D, 189-D and 190-D of 1966 deserve to be cons:Jlidated and would be disposed of by one argument common to all of them.

That there is nothing to be decided by this Hon'ble Court in any of the Appeals which is not common to any of the rest of them." (Emphasis, ours) F

This prayer was granted and thus the appellants got the benefits like 1reduced security deposit and consolidation for purposes of printing and hearing of the appeals, on their representation to the Court that the points arisint; in all the appeals were common and the disposa.l .of one would gov(:rn the rest.

A litigant cannot play fast and loose with the Court. His word to the Court is as good as his bond and we must, without more ado, negative the present shift in stand by an astute discovery of a plea that the earlier judgment was rendered per bicuriam.

The wisdom which has fallen from Bowen, L.J. in Ex Parte

Pratt(l), though. dlivered in a different context, has wider relevance H to include the present position. The learned Lord Justice observed :

(I) 52 Q.B. 334, 34!.

"There is a good old-fashioned rule that no one has a right to conduct himself before a tribunal as if he accepted its jurisdiction, and then afterwards, when he finds that it has decided against him, to turn round and say, "You have no jurisdiction"." _

Certainty of the law, consistency of rulings and comity ot courtsall flowering from the same principle--coverage to the conclusion that a decision once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents.

It should be a glaring case, an obtrusive omission. No such situatlon presents itself here and we do not embark on the principle of judgment per incuria. n.

Finally it remains to be noticed that a prior decision of this Court on identical facts and law binds the Court on the same points in a later case. Here we have a decision admittedly rendered on facts and law, indistinguishably identical, and that ruling must bind.

Shri Bindra, learned counsel has cited a few decisions before us to substantiate his submission that judgments per incuriam bind none except the particular parties to the lis. In this context, he has drawn our attention to the observations in Young v. Bristol Aeroplane Co.

Ltd. ( 1) which has been approved by the House of Lords in Young

v. Bristol Aeroplane Co. Ltd. (2).

Similar statements are found in brief terms in the rulings reported as Nicholas v. Penny( 3 ) and The Bengal Immunity Company Ltd, Case(4). We need not debate, in the present case, this fresh ground to undermine otherwise conclusive judgments for other paramount ruler governing justice administration prevail, as earlier indicated.

But it is extremely significant that this facile theory was frowned upon by the House of Lords in Cassel & Co. Ltd. v. Broome('). In that case the highest Court, viz. the House of Lords.

"rejected in condemnatory terms the Court of Appeal's decision to the effect that the decision of the House of Lords in Rooke.s v. Barnard (1964 A.C. 1129) on the issue of exemplary damages had been reached per incuriam because of two previous decisions of the House.

Lord Hailsham.

L.C., in the course of the leading speech for the majority,

asserted that 'it is not open to the Court of Appeal to give gratuitous advice to judges of first instance to ignore decisions of the House of Lords in this way' while Lord Reid took the vie wthat it was 'obvious thm the Court of Appeal failed to understand Lord Devlin's

(I) [1944] 1 K. B. 718, 729.

(2) [1946] A.C. 163, 169.

(3) [1950] 2 KB. 466.

(4) [1955] 2 S.C.R. 613

(5) [1972] l All E.R. 801-(1972) 2 W.L.R. 645.

8 3:3

SUPREME COURT REPORTS [197 51 3 s.c;.R.

speech'. The per incuriam principle is of lin1ited application. \'ery few decisions have subsequently been regarded as having been reached per incuriam and in Morelle v. Wakeling

11955 2 Q.B. 379) a Master of the Rolls stated that such instances should be 'of the rarest occurrence', and should be limited to 'decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned'. Thus the doctrine will not be extended to cases which were merely not fully argued or

which appear to talce a wrong view of the authorities or to misinterpret a statute." (1)

Kow to costs. A compassionate submission was made by Shri Bindra that the parties do bear their costs in this Court. We diirect accordingly.

V.P.S.

Appeal dismissed

(IJ aThe English Legal.System" by R.J. Walker & M. G. Walker, Ill hill.

Butter•, yorths, 197'.c.

MAMLESHWAR PRASAD

ANR

KANAHAIYA LAL (DEAD) THROUGH L.Rs

March 4, 1975

A. N. RAY

V. R. KRISHNA IYER, JJ.

R. J. Walker

M. G. Walker

N. S. Bindra

S. S. Dalal

D. D. Sharma

V. D. Mahajan

Sarjoo Prasad

Uma Mehta

R. K. Mehta

M. L. lain

KRISHNA IYER

Delhi Hign Court

Bindra

Delhi High Court

Bowen

Bengal Immunity Company Ltd

Hailsham.

L.C.

Reid

Devlin

[1955] 2 S.C.R. 613

R.J. Walker