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PETITIONER: CHAIRMAN, SCHOOL OF BUDDHIST PHILOSOPHY, LEH

       Vs.

RESPONDENT: MAKHAN LAL MATTO AND ANR.

DATE OF JUDGMENT25/07/1990

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) KASLIWAL, N.M. (J)

CITATION:  1990 SCR  (3) 515        1990 SCC  (4)   6  JT 1990 (3)   319        1990 SCALE  (2)139

ACT:     School of Budhist Philosophy--Appointment of  Principle- Board of Management whether competent to alter or amend  the rules governing appointments.

HEADNOTE:     Appointments  to  various  posts in  School  of  Budhist Philosophy,  Leh, were governed by the Rules framed  by  the Board of management in the year 1973. According to the  said rules, the qualifications prescribed for the post of Princi- pal  as also for the Administrative Officer were  identical. In  March  1973, one M.L. Mattoo, Respondent No. 1,  who  at that  time was working as the Administrative Officer of  the School was given the additional charge of the post of  Prin- cipal.  Thereafter  the Board of management at  its  meeting held  on 22.8.1978, decided that  qualifications  prescribed for  the post of Principal should be revised, so as to  make it obligatory for the Principal to have a thorough  academic knowledge of Buddhist Philosophy--the primary object of  the institution  being research and propagation of Budhist  phi- losophy. A selection committee was constituted by the  Board of  management to appoint a suitable person as Principal  of the school and one Tashi Paljor, was appointed as Principal. Being  aggrieved by the said appointment, Respondent No.  1, filed  a writ petition in the High Court contending that  he was removed from the additional charge without affording him an  opportunity of being heard and further that he  was  not considered  by the selection committee. The High  Court  re- jected the first contention but allowed the writ petition on the ground that he was not considered for the post of  Prin- cipal  and  thus his right under Article 16  was  infringed. Thereupon the management advertised the post of Principal to be  filed by direct recruitment on the basis of the  revised qualifications. Respondent Mattoo challenged the  advertise- ment  by  means of a writ petition on the  ground  that  the revised  qualifications were not validly prescribed  and  as such  the post of Principal could only be filled in  on  the basis  of the pre-revised qualifications. He based his  con- tention  on the concession made by the counsel for the  man- agement,  when  his  earlier petition was  heard,  that  the petitioner possessed the requisite qualifications. According to  him  the  rules have not been amended.  The  High  Court

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accepted the contention of Mattoo 516 and  allowed the writ petition, quashed the impugned  adver- tisement and directed the management not to make appointment on  the basis of the advertisement in question.  Hence  this appeal by the Board of management of the school. Allowing the appeal, this Court,     HELD:  The  Board of management is  fully  competent  to alter  or  amend the rules in any manner and  at  any  time. [521E]     The qualifications/experience for the post of  Principal were  validly revised by amending the rules in August  1978. The advertisement issued on January 5, 1982, was in  accord- ance with the Rules and the High Court was not justified  in quashing the same. [522B]     Since  respondent  No. 1 does not  possess  the  revised qualifications, he is not eligible to be considered for  the said post. [521F]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 3492  of 1990.     From the Judgment and Order dated 3.8.1988 of the  Jammu & Kashmir High Court in L.P.A. No. 110 of 1988.     N.S. Mathut, Ramesh C. Pathak, G. Venkatesh Rao and Baby Lal for the Appellant.     E.C. Agarwala, Ms. Purnima Bhatt, V.K. Pandita and  Atul Sharma, for the Respondents. The Judgment of the Court was delivered by KULDIP SINGH, J. Special leave granted.     The  School  of Buddhist  Philosophy,  Leh  (hereinafter called  the  ’School’) is an affiliate  institution  of  the Sampurnanand Sanskrit University, Banaras. The management of the  School  is  in the hands of a  society  called  Central Institute of Buddhist Studies, Leh which is registered under the  Jammu  and Kashmir Registration of Societies  Act.  Ap- pointments  to various posts in the School are regulated  by the  rules  framed by the Board of management  in  the  year 1973. The academic and other qualifications for the post  of Principal under the rules, are as under: 517 "Academic Qualification At  least Master’s Degree in Humanities or Social  Sciences, with  knowledge  of Rules and  Regulations,  procedures  and Accounts. Experience Minimum experience of 7 years, out of which at least 2 years should  be in administration such as  administrative  Asstt. and  not less than 3 years in teaching in  Higher  Secondary and/or Degree classes." The  qualifications for the post of  Administrative  Officer under the 1973 rules are identical.     M.L.  Mattoo (Respondent No. 1), who was functioning  as the Administrative Officer, was given the additional  charge of  the post of Principal by an order dated March  26,  1973 issued  by  the Ministry of Education  and  Social  Welfare, Government of India, New Delhi.     The  Board of Management in its meeting held  on  August 22,  1978  decided that apart from the  qualifications  pre- scribed under the Rules, the person selected for the post of Principal  should  have a thorough  academic  background  in Buddhist  Philosophy.  Pursuance to the  said  decision  the qualifications/experience  for  the post of  Principal  pre-

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scribed under the Rules were revised as under: "Essential:       (a)  A  consistently good academic  record  possessing eminent  scholarship in Buddhist Philosophy as a subject  of specialisation at M.A. or Doctoral level. or Acharya Degree with research experience to Buddhist Philoso- phy or equivalent. or An  equivalent degree of traditional monastic  education  in Buddhism. 518      (b) Evidence of research work and/or public work in the field. Desirable:      (a) 5 years teaching experience in Buddhist  Philosophy and allied subject at the degree level. (b) 5 years of administrative experience."     The Board of Management constituted a selection  commit- tee to appoint a suitable person as Principal of the School. By  an order dated January 9, 1979 one Shri Tashi  Pal  jot, who  fulfilled the revised qualifications, was appointed  as Principal  of the School. Aggrieved by the said  appointment M.L. Mattoo filed Civil Writ Petition No. 256 of 1979 in the High  Court of Jammu and Kashmir on the ground that  he  was removed  from  the additional charge  without  affording  an opportunity  of heating to him and further that he  was  not considered  by  the selection committee. He  contended  that selection was liable to be quashed being violative of  Arti- cle  16 of the Constitution of India. The writ petition  was resisted  by the Management on the ground that it was not  a ’State’ under Article 12 of the Constitution of India and as such the writ petition was not competent. At the hearing  of the  writ petition the counsel for the  Management  conceded that  the  society was a ’State’ within Article  12  of  the Constitution  of India and as such the writ  petition  could not be dismissed on that ground. The High Court rejected the contention of M.L. Mattoo that he was entitled to an  oppor- tunity  of  hearing or Article 311 was attracted.  The  High Court, however, allowed the writ petition on the ground that the petitioner was not considered for the post of  Principal and  as such his right under Article 16 of the  Constitution of  India  stood infringed The operative part  of  the  High Court judgment is as under: "Mr.  V.K. Gupta has on the authority of Ajay  Hasia’s  case (supra)  frankly conceded that the society being an  instru- mentality or agency of Government of India, was ’state’  for the  purpose  of Part III of the Constitution as  such,  the petitioner had a fundamental right to be considered for  the post  alongwith the third respondent. He not having been  so considered, and it also being admitted that he possessed the requisite qualifications, the rule of equality enshrined  in Articles 14 and 16 of the Constitution stood clearly violat- ed. That being so, as in fact it is, the impugned order 519 passed  by  the second respondent appointing the  third  re- spondent as the Principal of the School has to be quashed."     Thereafter the Management advertised the post of Princi- pal  to  be  filled by direct recruitment on  the  basis  of revised  qualifications. The advertisement was published  in the ’Kashmir Times’ of January 5, 1982.     M.L. Mattoo filed another writ petition being Civil Writ Petition No. 29 of 1982 challenging the advertisement on the ground that the revised qualifications had not been  validly prescribed  and as such the post of Principal could only  be

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filled  on  the  basis of  the  pre-revised  qualifications. According to him the revised qualifications were  advertised only to make him ineligible for the post. The main thrust of Mattoo’s  argument  was that his earlier writ  petition  was decided  by the High Court on October 29, 1981  wherein  the counsel  for the Management conceded that he  possessed  the requisite  qualifications for the post of Principal.  Admit- tedly  Matto  does not possess the  revised  qualifications. According to him the earlier writ petition was filed in  the year 1979 and had the qualifications been revised by  amend- ing the rules in 1978, the counsel for the management  would have  certainly brought the same to the notice of the  Court and  since it was not done there was factually no  amendment to  the  rules. The High Court accepted  the  contention  of Mattoo  and allowed the writ petition by its judgment  dated June 9, 1988 on the following reasoning: "It is stated in para No. 13 of their counter that  qualifi- cations  were changed in August, 1978 with the  approval  of the  Govt. of India. This statement is not accepted for  two reasons  one, that this was not the defence of the  respond- ents  in  writ petition No. 256/1979 in  which  petitioner’s eligibility  was granted by the High Court for the  post  of Principal;  and second, that after the decision of the  High Court granting eligibility to the petitioner for the post of Principal  in  writ petition No. 256/1979,  the  respondents plea on the basis of some policy or note whereby  qualifica- tions  were changed in 1978 prior to the filing of the  writ petition No. 256/1979 cannot be now pressed into service nor would be permitted to be made because same will be barred by doctrine of constructive res judicata." The High Court quashed the advertisement dated January 5, 520 1982 and restrained the management from filling the post  of Principal  on the basis of the impugned  advertisement.  The management  has come up to this Court in appeal against  the above said judgment of the High Court of Jammu and Kashmir.     The  learned counsel for the appellant has  invited  our attention  to the proceedings of the meeting of the  manage- ment  of the School held on August 22, 1978. It was  decided in  the said meeting that the person selected for the.  post of Principal of the School must have academic background  in Buddhist  Philosophy in addition to the qualifications  pre- scribed  under the Rules. Thereafter the amended  qualifica- tions  which have been reproduced above were  prescribed  by the Board of Management. 3    It is not disputed that the recruitment Rules could  be altered  by  the Board of Management at any  time  with  the sanction  of  the  Government of India.  Mr.  E.C.  Agarwala appearing  for  the  respondent M.L.  Mattoo  has,  however, contended that the recruitment rules were never amended  and in any case there was no sanction of the Government of India regarding the amended Rules.     Learned counsel for the appellant has invited our atten- tion to the affidavit of Dr. (Mrs.) Kapila Vatsyayan, Chair- man, Board of Management of the School filed before the High Court.  Dr. Kapila Vatsyayan is the Additional Secretary  to Government  of India in the Ministry of Education  and  Cul- ture. Para 13 of the affidavit is as under: "When  in  the year 1978, the question of appointment  of  a Principal  of  the  school on regular basis  was  under  the consideration  of the Board of Management, it was held  that keeping  in view the objects of the school being a  research Institution  to  propogate Buddhist  Philosophy  a  thorough academic background in Buddhist Philosophy was considered as one of the essential qualifications for the post of  Princi-

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pal  of the School as will be evident from the extract  from brief note on Agenda item I considered in the meeting of the Board  of Management held on 22nd August, 1978 Annexure  IV. Shri  Tashi Paljore was appointed as Principal as stated  in para  No. 5 of the petition as he possessed this  qualifica- tion and was selected by a duly appointed Selection  Commit- tee.  The contention of the petitioner that this  qualifica- tion has been added now after the decision of writ  petition No. 256 of 1979 is incorrect. As 521 stated above, the qualifications were changed in August 1978 with the approval of Govt. of India.           These qualifications are obviously very  necessary for  the  fulfilling  of the objectives of  the  Schools  of Buddhist  Philosophy, Leh (Ladakh). In the absence of  these qualifications,  the very object for which  the  Institution exists  is bound to be defeated. The qualification has  been provided the interest of the Institution and for the attain- ment of the object for which it exists, namely imparting and propagating  Buddhist Philosophy. The Recruitment  Rules  of 1975, Annexure ’D’ to the petition were framed by the  Board at that time. Under the Rules and Regulations of the  Board, the Board of Management is competent to amend the same. ’ ’     it is obvious from the affidavit of Dr. Kapila Vatsyayan reproduced  above  that the qualifications for the  post  of Principal were revised by amending the Rules and the revised qualifications were approved by the Government of India. No. 1 rejoinder was filed by M.L. Mattoo to the above affidavit,     The  High  Court was not justified in  disbelieving  the contents of the affidavit. The rules are not statutory.  The Board of Management is fully competent to alter or amend the rules  in any manner and at any time. The affidavit  by  the Chairman of the Board of Management who is additional Secre- tary  to  Government of India to the effect that  the  rules were amended in 1978 with the approval of the Government  of India, should have put an end to the controversy. We have no hesitation  in holding that the qualifications for the  post of  Principal  of the School stood validly  revised  by  the amendment of the Rules in August, 1978. Since respondent No. 1  Shri M.L. Mattoo does not possess the revised  qualifica- tions,  he  is not eligible to be considered  for  the  said post.     In  the earlier writ petition No. 256/1979 the  question as  to whether the qualifications for the post of  Principal had  been  revised was not before the High Court.  The  main contention  of  the Management, before the High  Court,  was that the Management society was not a ’State’ under  Article 12 and as such no writ petition was competent. At the  hear- ing  the counsel for the management, however, conceded  that the society was a ’State’ under Article 12 of the  Constitu- tion  of India. It is no doubt that the High Court has  men- tioned that it 522 was  admitted by the counsel for the Management that  Mattoo possessed  the requisite qualifications for the post but  we do not understand how in the face of categoric affidavit  of Dr.  Kapila Vatsyayan such a statement could be made  before the High Court.     We,  therefore, hold that the  qualifications/experience for  the post of Principal were validly revised by  amending the  Rules  in  August, 1978. The  advertisement  issued  on January  5,  1982 was in accordance with the Rules  and  the High  Court  was  not justified in quashing  the  same.  We, therefore,  allow the appeal, set aside the judgment of  the High  Court  and  dismiss the writ petition  filed  by  M.L.

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Mattoo before the High Court. There shall be no order as  to costs. Y. Lal                                 Petition dismissed. 523