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PETITIONER: GOVERNING BODY, ST. ANTHONY’S COLLEGE,SHILLONG & ORS.

       Vs.

RESPONDENT: REV. FR. PAUL PETTA OF SHILLONG EASTKHASl HILLS.

DATE OF JUDGMENT18/08/1988

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) THAKKAR, M.P. (J)

CITATION:  1988 AIR 2005            1988 SCR  Supl. (2) 507  1988 SCC  Supl.  676     JT 1988 (3)   531  1988 SCALE  (2)526

ACT:     St.       Anthony’s       College-Whether       Salesian Provincial/President  of the Governing Body of  the  College could  order transfer of the Principal of the  College    or whether  the  governing Body could pass such  an  order   of transfer-Whether  an opportunity of hearing was to be  given to  the  Principal  to  show  cause  against  the   proposed transfer.

HEADNOTE:     The  respondent  had  been appointed  Principal  of  St. Anthony’s College by Salesian Provincial and his appointment had  been  approved by the Director  of  Public  Instruction (D.P.I.) on the recommendation of  the governing body of the College.  Due to differences between the Principal  and  the Church authorities, and particularly, the appellants Nos  2, 3 and 4, i.e. the President and the members of the governing body  of the College, the appellant No. 2, the President  of the governing body and the Salesian Provincial intimated  to the respondent of his transfer from the post of Principal of the College. The respondent contended that the appellant No. 2  had  no authority to appoint or dismiss or  transfer  the Principal,  as  the Principal of the  College  belonging  to minorities  was to be selected by the governing body and  to be approved by the D.P.I. in accordance with the  government instructions  contained in its Memo dated December 7,  1979. But  the  Salesian  Provincial proposed  another  person  as Principal,  to  which  the governing  body  agreed  and  his appointment was approved by the D.P.I. The respondent  filed a  writ  petition  in the High Court,  contending  that  the Salesian Provincial had no power to transfer him, as he  had been  appointed  Principal  by the  governing  body  of  the College  with  the  approval  of  the  D.P.I.,  and  so  the Governing  Body  with  the approval1  of  the  D.P.I.  could transfer  him under the statutory rules. and that the  order of  transfer,  having  been passed without  giving  him  any opportunity  to show cause, was arbitrary, illegal and  mala fide and violative of the principle of natural justice.  The High   Court  held  that  there  was  no  reason   why   the respondent’s  removal from the post of Principal should  not                                                   PG NO 507

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                                                 PG NO 508 have been by the governing Body and subject to the  approval of  the  D.P.I., and directed inter alia that  the  impugned order of transfer be kept in abeyance and that the governing body would give the respondent an opportunity  to show cause why  he should not be transferred as stated in the  impugned transfer  order,  and decide the matter  of  transfer  after hearing  him. Aggrieved by the order of the High Court,  the governing body and others moved this Court by special leave.     It  was contended by the appellants inter alia that  the respondent could not have any grievance against the order of transfer as he had no statutory right to remain as Principal and  that  he,  being ordained as priest  according  to  the Articles  of the constitution of the Society of St.  Francis de  Sales,  the Salesian Provincial could  transfer  him  to serve  in  any  of the institutions of the  Society  as  his service  was  transferable, and he could  not  question  the transfer.     Dismissing the appeal, the Court,    HElD:   The   St.  Anthony’s  College  was   a   minority institution  within  the  meaning  of  Article  30  of   the Constitution,   and  the  instructions  contained   in   the Government  Memo dated 7th December,  1979, laying down  the procedure of appointment of Principal, vice-Principal,  etc, in  religious minority Colleges in the State would apply  to this Institution. [514E-F]     The impugned order of transfer was passed without asking the respondent to show cause against the transfer and giving him an opportunity  of hearing. The impugned order purported to transfer the respondent from the post of Principal of the College  to the post of Teacher in a school. This  order  of transfer   prejudicially   affected  the   status   of   the respondent. [5I5E-F]     The  main  question for consideration  was  whether  the Salesian  Provincial,  appellant  No.  2  was  competent  to transfer  the  respondent  who had  been  appointed  by  the governing body of the college and approved by the D.P.I.  as per  the  Government instructions applicable to  a  minority college. [515G]     According to the Government instructions aforesaid,  the Principal whose appointment had been approved by the D.P.I., could work as Principal in the minority college till the age of  superannuation  as  determined by  the  Government.  The impugned   order  of  transfer amounted to  removal  of  the respondent  from  the post of Principal. The  principles  of natural justice and fair play mandate that in administrative actions  the  audi alteram partem rule  is  applicable;  the person affected by the order had to be given an  opportunity                                                   PG NO 509 of  hearing  against  the purported  order  apart  from  the question  whether the Assam Aided College  Management  Rules and Assam Aided College Employees, Rules  are applicable  to minority institutions. [516B-D]     The  appellants  contended  that  Salesian   Provincial, appellant  No.  2,  was  the  appointing  authority  of  the respondent and as such he had the right to make the impugned order  of  transfer though there was  no  express  provision conferring such a power. [5l6F]     The question was whether the Salesian Provincial was the appointing  authority  of the respondent, or  the  governing body of the College appointed the respondent and recommended his  appointment for approval to the D.P.I. The  D.P.I.  had approved  the appointment of the respondent pursuant to  the recommendation  of the governing body. So this question  had to be gone into and determined by the governing body, as had

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been  directed by the order of the High Court. In so far  as the  respondent was transferred in his capacity as a  priest from  one  division of the religious order to  another,  the matter pertained to the internal management of the religious order and it was not justiciable, but in so far as the order of transfer had been made, transferring the respondent  from the post of Principal of the College to the post of  Teacher of a school in another State, the respondent could  complain against  it.  Since  the respondent had not  been  given  an opportunity of hearing against the purported transfer  which seriously  affected his status, judgment of the  High  Court which directed the governing body to give the respondent  an opportunity  to  show cause against the  impugned  order  of transfer  and to give him a hearing and decide the  transfer matter in accordance with law, could not be faulted.  [516G- H; 517A-D]

JUDGMENT:     CIVlL APPELLATE JURISDICTION: CIVIL Appeal No. 3717  of 1986.      From  the  Judgment and Order dated  12.9.1986  of  the Gauhati High Court in Civil Rule No. 428 of 1986.     Ms. Lira Goswami and D.N. Mishra for the Appellant.     Shankar Ghosh, S.K. Hom Choudhary and S.K. Nandy for the Respondent.     The Judgment of the Court was delivered by                                                   PG NO 510     RAY,  J.  The  respondent,  Rev.  Fr.  Paul  Petta   was appointed as Principal of St. Anthony’s’ College by Salesian Provincial  on April 16, 1982 and on the  recommendation  of the  Governing Body of the College, the Director  of  Public Instruction,  Meghalaya, Shillong accorded approval  to  his appointment  with effect from 1st May, 1982.  St.  Anthony’s College was established by Salesian Congregation, a Catholic religious  Society of imparting general education. It  is  a religious  minority  institution  under Article  30  of  the Constitution of India and it is receiving Government grants- in-aid since the scheme of deficit grant-in-aid colleges was intoduce by the government of Assam in 1959. After  creation of Meghalaya it has been grants-in-aid under the same system as  adopted by th Government of Meghalaya. By Memo No.  EDN. 75/74/280  dated  4th  November,  1976  the  Government   of Meghalaya, Education Department conveyed to the Director  of Public   Instucion,  the  sanction  of  the  Government   of Meghalaya  to the implementation of the Instruction.  scales of  pay, as indicated thereunder to all the deficit  college teachers  including the Principals, Professors in the  State with effect from 1st April, 1975. By Memo No. EDN>  75/74/51 dated December 7, 1979 the Government of Meghalaya laid down the procedure for appointment of Principals, Vice-Principals and Lectuers and  other staff in Religious Minority Colleges in   the   State  with  refernce  to  Article  30   of   the Constitution. Paragraph 1 which is relevant is quoted below:     "In  the matter of appointment of Principals  and  Vice- Principals  in  the  colleges  belonging  to  th   religious minorities,  the  governing Body of  the  College  concerned shall select a Principal and Vice-Principal from a panel  of names   submitted  by  th  sponsoring  Church   Organisation concerned  subjects  to th condition  that  the  educational qualifications   of  the  persons  selected  shall   be   in accordance with the conditions laid down in the Government’s letter No. EDN/75/74/280 dated 4.11.76. Other conditions  in respect   of  age  of  super-annuation  etc.  shall  be   as

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prescribed by the State Government from time to time."     The respondent after his appointment had been working as Principal of the College. While working as such, differences arose   between   him  and  the  church   authorities   more particularly the appellant Nos. 2,3 and 4 i.e. the President and  the  members  of the Government  Body  of  the  College regarding certain matters relating to the management of  the college.                                                   PG NO 511     On  December  14,  1985, Fr.  John  Kalapura,  SDB,  the Appellant No. 2, President, Governing Body of St.  Anthony’s College  and  Salesian  Provincial  sent  a  letter  to  the respondent intimating him of his transfer from the power  of Principal of the College. The letter states :     "After due consultation with the Provincial Council I am transferring you from the post of Principal of St. Anthony’s College,  Shillong  and am appointing Rev. Fr. J.  Kenny  as Acting  Principal of the same college with effect from 2  f. 12. 85.     Kindly hand over the charge to Rev. Fr. J. Kenny by 21st Dec. 1985."     On receiving the said letter the respondent on that very day sent a letter to the appellant No. 2 stating that he had no authority to appoint or dismiss or transfer the Principal of  the College as the Principal and Vice-Principal  in  the College  belonging to the minorities are to be  selected  by the  Governing  Body and to be approved by the  Director  of Public    Institution   in   accordance   with    Government instructions mentioned in its letter dated December 7, 1979. The  respondent  sent  a letter to the  Director  of  Public Instruction  (in short D.P.l.) intimating that he  had  been removed  from the Principalship of St. Anthony’s College  by the  appellant  No. 2, the Salesian  Provincial  of  Cauhati Province and Rev. Fr. Kenny had been appointed as the Acting Principal  and requested him to intimate if  the  Government has  given  any  power  to  Sponsoring  Authority  for   St. Anthony’s  College  in  contravention  of  the  Memo   dated December 7,  1976. The D.P.I. has informed the respondent by his  letter dated 23rd December, L985 that "this  office  is not  aware of any such power given to the  Church  Authority concerned".  The  Salesian Provincial by  its  letter  dated March  7, 1986, proposed the name of Fr. Stiphen  Mavely  as Principal  of  the said College. The Governing Body  at  its meeting held on  17th March, 1986 resolved that Fr.  Stephen Mavely be appointed Principal-cum-Secretary of St. Anthony’s College   with  effect  from  March  10,  1986.   The   said appointment  was approved by D.P.l., Meghalaya  with  effect from 10th March, 1986.     The respondent filed a suit being T.S. No. l (T) of L986 in  the Court of the Assistant District Commissioner with  a prayer  for  temporary  injunction.  An  interim  order   of maintaining status quo was obtained. But as in the  meantime the office of the Principal was and taken possession of, the suit was withdrawn and a writ petition being Civil Rule  No.                                                   PG NO 512 428  of 1986 was filed challenging that Salesian  Provincial has no power to transfer the respondent, viz. the  Principal of  the  College to Don Bosco  Technical  School,  Maligaon, Gauhati.  The respondent was appointed as Principal  of  the said  College by the Governing Body of the College with  the approval  of  D.P.I.  and so the  Governing  Body  with  the approval  of  D.P.I. can transfer him  under  the  statutory rules. It was also contended that the respondent acquired  a satutory  right  to  hold the post  of  Principal  till  his attaining the age of super-annuation. The purported order of

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transfer  is illegal and without jurisdiction  It  has  also been   contended  that  the  purported  order  of   transfer tantamounts  to removal of the respondent from the  post  of Principal and the said order being issued without  recording any reason and without giving any opportunity to show  cause to  him is arbitrary, illegal and mala fide.  The  purported order of transfer is thus violative of principles of natural justice and as such it is liable to be quashed.     An  affidavit  in  opposition was  filed  on  behalf  of appellant  Nos. 2, 3 and 4 denying that  the  administration and   management   of  the  said   college   including   the appointment, discipline etc. are governed by the Assam Aided College   Management  Rules.  1965,  Assam   Aided   College Employees’  Rules,  1960 for appointment of  Principals  and Vice-Principals   and  conditions  of  grants-in-aid   aided colleges  in  1956. It has been stated  that  St.  Anthony’s College  is   a  minority  institution  and  the   Salesians Provincial  is  the  only Competent Authority  to  make  any appointment to the rank of Principal in the said College and no advertisement before making any appointment is necessary. This relaxation of restriction in regard to Minority College availing  of  deficit grants-in-aid has been  made  by  Memo dated  December 7, 1979. The petitioner is a member  of  the Salesian  of Don Bosco and his appointment to the said  post of Principal could never have been permanent. As a priest he is transferable from time to time different institutions  of the Society. The Constitution of the Salesians of Don  Bosco provides that such transfer is binding on the petitioner  as a  priest  and  a  member of the  Salesian  Don  Bosco.  The transfer of the petitioner and other priests are matters  of normal  routine as members of Salesian Society. It has  also been stated that any money drawn by a priest has to be given to  the  order  of  Salesian of  Don  bosco  and  no  priest maintains any private fund. It is the responsibility of  the Salesian Society to look after the needs and requirements of any  member  of  the community and is  responsible  for  the upkeep  of such members. The petitioner has taken a  vow  of obedience when he was ordained as a priest and was  admitted as  a  member  of Don bosco. The petition is  liable  to  be dismissed  as no statutory right of the petitioner has  been violated.                                                   PG NO 513     After  hearing the learned counsels for the  parties  as well  as  considering the facts and circumstances  the  High Court held that the Governing Body of the College was not  a Statutory Body. The Court further held that:     "To  our  mind there is violation of the  principles  of natural  justice in dislodging the petitioner from his  post of Principal without hearing him."     The High Court further held that:     "So long as the members of the Salesian Body obeyed  the rules and regulation of the Body, accepted transfers in good spirit  this  Court  would have nothing to do.  But  if  the petitioner   having  been  appointed  as   Principal   feels aggrieved  that his transfer is not in accordance  with  the rules of the body and comes to the Court, this Court has  to look  and  listen to him. By appointing  the  petitioner  as Principal  of the College, the organisation has exposed  the petitioner  to  the judicial gaze of the Court  and  if  the petitioner makes grievances, it is for the Court to  redress it." ".....  The petitioner was appointed by the  Governing  Body and that was subject to the approval of the D.P.I. There  is no  reason  as  to  why his removal from  the  post  of  the Principal  should not have been made by the  Governing  Body

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and  subject  to  the approval of the  D.P.l.  However,  the College  Governing Body has got no control over  the  School whereto the petitioner has been transferred."     The  High Court therefore made the rule absolute to  the extent indicated in the directions quoted below:     "We  accordingly  keep the impugned  order  in  abeyance forthwith  and direct the Governing Body of the  College  to give  the petitioner an opportunity to show cause as to  why he  should  not  be transferred as stated  in  the  impugned transfer  order  dated 14.12..1985 (Annexure-10)  and  after hearing the petitioner on the cause shown, shall decide  the matter  of  transfer within one month from receipt  of  this order,  and  act according to the decision so taken  and  in                                                   PG NO 514 conformity with the Government instructions (Annexure-8). If the   impugned  order  is  revoked,  the  petitioner   shall automatically be reinstated in his post of principal of  the College, and shall be given all the emoluments and  benefits thereof. The Respondent No.  11 shall  correspondingly cease to be Principal of the College, but shall not be disentitled to the pay and allowances for the services already  rendered by  him  to  the College prior to this date.  In  case   the Governing  Body  decides  to give  effect  to  the  impugned transfer  order it shall revive and the petitioner shall  be free  to pursue his remedies under the law. In the  interest of  fair hearing and reasonable opportunity, we  direct  the Governing  Body to make available to the petitioner all  the records  which he may need for the purpose of  his  defence; the  petitioner  shall, not, however function  as  Principal during  the  period  of  one  month  pending  decision.  The decision shall be taken within a month from today."     Aggrieved  by the said order made in Civil Rule No.  428 of  1986,  a special leave petition has been  filed  by  the Governing Body and some of the members of the Governing Body of  the College. After hearing the learned counsel  for  the parties special leave was granted.     The  St.  Anthony’s  College is  admittedly  a  minority institution  within  the  meaning  of  Article  30  of   the Constitution  and as such the Salesian Don Bosco Society  is competent  to administer the said college. This  College  is getting   deficit  grants-in-aid  from  the  Government   of Meghalaya  and the instructions contained in Memo  No.  EDN. 75/74/S1  issued  by  the Government  of  Meghalaya  on  7th December,  1979 laying down the procedure of appointment  of Principal,  Vice-Principal,  Lecturers and  other  staff  in religious minority colleges in the State will apply to  this Institution.  The  respondent  who was  a  lecturer  of  St. Anthony’s College was sponsored by Salesian Provincial,  the appellant No. 2 for appointment of Principal of the  College and  the Governing Body of the College recommended the  same to  the  Director  of  Public  Instruction,  Meghalaya   for approval  as  required  under the  above  instructions.  The D.P.I. duly approved the appointment of the respondent, Rev. Fr. Paul Petta as Principal of the College with effect  from May  1,  1982.  The appellant worked  as  Principal  of  St. Anthony’s College since the date of his appointment till the impugned order of transfer made by the appellant No. 2  Rev. Fr.  John Kalapura as Salesian-Provincial from the  post  of Principal  of the said College to the post of  Teacher,  Don Bosco  Technical  School, Maligaon, Gauhati on December  21,                                                   PG NO 515 1985  without asking him to show cause against the order  of transfer and without giving him any opportunity of  hearing. It  has been urged that the respondent being ordained  as  a priest  of the society has taken vow of servie to  any  post

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where  he will be asked by the Society to work. As a  priest he was sponsored by the Church Authority for appointment  as Principal  and  the  Governing  Body  of  the  College  also recommended  his appointment as made by Salesian  Provincial for  approval.  The  petitioner cannot  have  any  grievance against  the order of transfer as he has no statutory  right to  remain  as Principal of the College. It  has  also  been contended by refering to certain Articles of Constitution of the  Society  of St. Francis de Sales  that  the  respondent being  ordained  as priest of the Society took  the  vow  of service  and  the Salesian Provincial can  transfer  him  to serve  in any of institutions of the Society as his  service is transferable. It has also been submitted that as a priest the  respondent cannot keep any money with him and  whatever salary  he gets will have to be given to the  Society  which will  look  after  him and meet his  needs.  The  respondent question the order of transfer. The respondent so long as he to the order of transfer and complies with it, the court has nothing  to  do.  But  if he does not  comply  with  it  and questions  it  before  the Court, the  Court  will  have  to consider his grievances and to decide if the impugned  order of transfer is legal and valid.     The  respondent  was  appointed  as  Principal  of   St. Anthony’s  College by the Governing Body of the College  and the  same  was  duly  approved by  the  Director  of  Public Instruction, Meghalaya in accordance with the procedure laid down in the Government’s letter dated December 7, 1979.  The impugned   order  of  transfer  purports  to  transfer   the respondent from the post of Principal of the College to  the post  Teacher in the Don Bosco Technical School at  Maligaon within the State of Gauhati over which the Governing Body of St.  Anthony College has no control. This order of  transfer has  prejudicially affected the status of the respondent  as Principal  of St. Anthony’s College. The main question  that arises  for  consideration  in this appeal  is  whether  the Salesian  Provincial, the appellant No. 2, is  competent  to transfer the petitioner who has been appointed as  Principal of  the  College by the Governing Body of  the  College  and approved  by  the  D.P.I.  as  per  Government  instructions applicable to minority college. There is no dispute that the respondent  is a member of Salesian Don Bosco Society  as  a priest.  It is also not in dispute that as a priest  of  the society  h was  sponsored by the Church Authorities for  the post  of Principal of th College and the Governing  Body  of the  College recommended to the D.P.I. for approval  of  his appointment   as   Principal  of  the   College.   In   such                                                  PG NO 516 circumstances  it is required to be considered  whether  the Salesian Provincial has power to transfer him from the  post of  Principal  of the College to the post of  Teacher  in  a Technical  School  of the Society. It is apparent  from  the aforesaid  Government instructions that the Principal  whose appointment has been duly approved by the D.P.I. can work as Principal in the minority college till he attains the age of super-annuation   as  determined  by  the  Government.   The impugned  order of transfer in substance amounts to  removal of the respondent from the post of Principal of the College. It  has been held by the High Court that the respondent  has been  condemned unheard as he was not given any  opportunity to  show  cause  for the purported order  of  transfer  whih seriously prejudiced him. The principles of natural  justice and  fair  play mandate that in administrative  actions  the audi  alterum  partem  rule is  applicable  and  the  person affected by the order to be given an opportunity of  hearing against the purported order apart from the question  whether

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the  Assam  Aided College Management Rules, l965  and  Assam Aided  College  Employees’  Rules. 1965  are  applicable  to minority  institutions. We do not consider it necessary  for the purposes of this appeal to make any observations on  the question  whether the Assam Aided College Management  Rules, 1965  and  Assam Aided College Employees’  Rules,  1960  are applicable  to  minority  institutions or  to  consider  the question   whether  the  rules  concerning  the  terms   and conditions   of   appointment   as   well   as   prescribing qualification  for appointment  the post  of  lecturers  and principals as well as prescribing condition for service  are regulatory  in  nature  and  they  do  not  contravene   the fundamental  right  guaranteed  under  Article  31  of   the Constitution  to  the  minority  institutions  at  has  been observed  in  the  case  of  Frank  Anthony  Public   School Employees Association v. Union of India & Ors., [1987] I SCR 238. It  has been contended on behalf of the learned counsel for  the  appellants  that the  appellant  No.  2,  Salesian Provincial is the appointing authority of the respondent and as  such  he  has the right to make the  impugned  order  of transfer  though there is nc, express  provision  conferring such  power. The case of Kutoor Vengayil Rayarappan  Nayanar v.  Kutoor  Vengayil Valia Madhavi Amma and Ors.,  AIR  1950 (Federal  Court)  140  has been cited at  the  bar  for  the proposition that the power to terminate flows naturally  and as  a  necessary  sequence from the power  to  create.  This proposition  is  a  well  established  proposition  but  the question   is  whether  the  Salesian  Provincial   is   the appointing  authority  of the respondent  or  the  Governing 8body  of  the  said College appointed  the  respondent  and recommended  his appointment for approval to the  D.P.I.  As stated earlier D.P.I. pursuant to the recommendation of  the Governing Body approved the appointment of the respondent as                                                   PG NO 517 Principal  of the said College. So this question has  to  be gone  into and determined by the Governing Body as has  been directed  by  the  order  of the High  Court.  It  has  been contended that the impugned order of transfer has  seriously affected  the status of the respondent as Principal  of  the College  and  this  has been made by the  appellant  No.  2, Salesian  Provincial without giving him any  opportunity  of hearing.  Now in so far as the Respondent is transferred  in his  capacity as priest from one division of  the  religious order  to  another  the  matter  pertains  to  the  internal management of the religious order and it is not justiciable. However, in so far as the order of transfer has been made by the Governing Body of the St. Anthony’s College transferring the respondent from the post of Principal of the College  to the  post of Teacher of Don Bosco Technical School which  is in  another  State the respondent can complain  against  it. Since  the respondent has not been given any opportunity  of hearing against the purported order of transfer outside  the State  which seriously affected his status, the High  Court, in the facts and circumstances of the case has directed  the Governing  Body  of the College to give  the  respondent  an opportunity  to  show cause against the  impugned  order  of transfer  dated 14. 13. 1985 and to give him a  hearing  and decide   the  transfer matter in accordance  with  law.  The judgment  and  order  passed  by  the  High  Court  in   the circumstances of the case cannot be faulted.     We therefore, uphold the order passed by the High  Court and  the  appeal is dismissed with costs quantified  at  Ks. 5,000. S.L.                                     Appeal dismissed.

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