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CASE NO.: Appeal (civil)  8599 of 2003

PETITIONER: The Secretary,Malankara Syrian Catholic College

RESPONDENT: T.Jose & Ors.

DATE OF JUDGMENT: 27/11/2006

BENCH: H.K. SEMA & R.V. RAVEENDRAN

JUDGMENT: J  U   D   G   M   E   N   T (With CA Nos. 8600/2003 & 8576/2003)

R.V. RAVEENDRAN, J.

       These appeals by special leave arise from the  judgment  dated 5.6.2003 of the High Court of Kerala in O.P.  No.10111/2000 and connected cases. As these appeals involve   questions which are analogous, they are heard and disposed of  by this common judgment. As the ranks of the parties vary, they  will be referred  to by their abbreviated names.  Facts in CA Nos. 8599 and 8600 of 2003 :

2.      The Malankara Syrian Catholic College Association of  Archidiocese at Trivandrum is a Society registered under the  Kerala Literacy, Scientific and Charitable Socieities  Registration Act, 1955.  It is a minority organisaion and an  Educational Agency (for short ’the Society’).  It has established  and runs several private colleges in Kerala.  The colleges are  managed by a ’Managing Council’ (for short ’the  management’) appointed by the Educational Agency. The  Society has appointed a Manager for the colleges under its  management, who implements the decisions of the  management.  Mar Ivanios College (’college’ for short) is one  of the colleges run by the said Educational Agency.  The said  college is an aided private minority institution affiliated to  Kerala University under the Kerala University Act, 1974 (’Act"  for short).  Educational instruction is provided in the college, in  accordance with the provisions of the statutes, Ordinances and  Regulations made under the Act.  Each of the colleges run by  the Society is headed by a Principal, who is responsible for the  functional efficiency, quality of education and discipline.  3.      The post of Principal of the college fell vacant on  31.3.2000. The Manager issued an order dated 27.3.2000 giving  charge of the post of Principal and Drawing & Disbursing  Officer (’DDO’ for short) to  Rev. Daniel Kuzhithaakthil,  a  lecturer in the college.  The said order  was approved by the  Vice-Chancellor of the University by order dated 15.4.2000.  The order dated 27.03.2000 was challenged by one of the  Lecturers - Dr. Varghese M. Mathunny in O.P. No.10111/2000,  wherein an interim order was passed restraining  Rev. Daniel  from taking charge as  Principal. Another Senior Lecturer of the  college, Dr. P.V. Thomas also challenged the order dated  27.03.2000  by filing O.P. No. 14337/2000. An interim order  was issued in that case on 24.5.2000, restraining Rev. Daniel  from functioning as the Principal or DDO.

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4.      In view of the interim stay preventing  Rev. Daniel from  acting as the Principal and DDO, the Management made an  interim arrangement by appointing T. Jose,   a  senior lecturer  in the College, to discharge the duties of Principal, pending  regular appointment to the post. On 5.6.2000, the High Court  modified the interim order and gave liberty to the Management  to make appointment to the post of Principal on regular basis.  In pursuance of it, on 6.6.2000, the Management appointed  Rev. Daniel as the Principal on regular basis.  

5.      The appointment of  Rev. Daniel as Principal on 6.6.2000  on regular basis was challenged by T.Jose, (claiming to be the  senior most among the eligible and fit lecturers) in Appeal  No.5/2000 before the Kerala University Appellate Tribunal,  raising two contentions : (i) that Rev. Daniel was ineligible to  be appointed as Principal as he did not process the requisite  qualifications for the post; and (ii)  that the appointment was  violative of Section 57(3) of the Act, which required the post of  Principal, when filled by promotion, to be made on the basis of  seniority-cum-fitness. The Tribunal, by an order dated  20.12.2000, held that Rev. Daniel fulfilled the eligibility  criteria, but allowed the appeal holding that the appointment of  Rev. Daniel as Principal violated Section 57(3) of the Act. The  Tribunal directed the Manager to make a fresh appointment in  accordance with law. The said order of the Tribunal was  challenged by Rev. Daniel and the Society  in O.P.  No.3015/2001 and O.P. No. 3742/2001 contending that Section  57(3) of the Act was invalid and inapplicable in respect of  minority institutions, as it interfered with the right of a  minorities to establish and administer educational institutions of  their  choice and thereby violated Article 30(1) of the  Constitution of India. T. Jose , the appellant  before the  Tribunal, also challenged the order of the Tribunal in O.P.  No.10721/2001, as he was aggrieved by the finding of the  Tribunal that Rev. Daniel possessed the qualifications for  appointment to  the post of Principal.  

6.      The said five writ petitions were heard together and  disposed of by a common judgment dated 5.6.2003. The High  Court rejected the contention of the Educational Agency and  Rev. Daniel that section 57(3) of the Act was violative of  Article 30(1). The High Court held that the said Section applied  to minority institutions also having regard to that Section, the  seniormost from among the eligible and fit lecturers had to be  appointed as the Principal.  It held that  Rev. Daniel was not the  senior-most among the eligible and fit lecturers of the college  and therefore his appointment could not be sustained.  Consequently, the High Court rejected O.P. Nos.3015/2001 and  3742/2001 filed by Rev. Daniel and the Society O.P.  No.10111/2000 filed by Dr. Varghese M. Mathunny was  dismissed as having become infructuous as he had retired on  31.5.2001 and as he had not challenged the order dated  6.6.2000 appointing Rev. Daniel as Principal. O.P.  No.10721/2001 filed by T.Jose was allowed. Even though  T.Jose had also retired in the meanwhile on 31.3.2001, the High  Court directed that his claim for promotion as Principal shall be  considered with effect from the date (6.6.2000) when Rev.  Daniel was promoted, with all consequential financial benefits.  Similarly, O.P. No.14337/2000 filed by Dr. P V Thomas was  also allowed with a direction that his claim  for appointment as  Principal  shall be considered with effect from 1.4.2001 with  consequential benefits.  

7.      Feeling aggrieved by the said Judgment dated 5.6.2003,  the Society and Rev. Daniel have filed C.A. No.8599/2003 and

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C.A.No.8600/2003 respectively  challenging the dismissal of  their writ petitions OP No.3742/2001 and OP No.3015/2001.  

Re : Facts in CA 8576/2003 :

8.      St. Gregorious College, another aided minority  educational institution,   appointed P.G. Thomas Pannicker as  Principal by order dated 25.9.2002. The said appointment was  challenged by Thomas Lukose before the Kerala University  Appellate Tribunal in Appeal No. 15/2002. The Tribunal  allowed the said appeal by order dated 30.1.2003 and  set aside  the appointment of P.G. Thomas Pannicker as Principal and  directed fresh selection. That was challenged by the Manager of  St. Gregorious College and P.L. Thomas Pannicker,  in O.P.  No.6621/2003. The said petition was disposed of by the High  Court along with the five petitions relating to Rev. Daniel (O.P.  No.10111/2000 and connected cases) by its common Judgment  dated 5.6.2003,  upholding the order of the Tribunal and  directing the college Management to make a fresh selection in  accordance with section 57(3) of the Act. The order rejecting  O.P. No.6621/2003 is challenged by the Manager of St.  Gregorious College and Thomas Pannicker in CA  No.8576/2003.

The Issue 9.      The High Court relying on the decision of the Eleven- Judge Bench of this Court in T M A Pai Foundation v. State of  Karnataka [2002 (8) SCC 481] has held that receipt of aid by a   minority institution removes the protection under Article 30(1),  by taking  away its right to claim immunity from interference  and therefore all regulations made by the State, governing the  manner of making appointments and removal, as also the  conditions of service of Principals and Lecturers, will be  binding on such aided institution. The High Court held that aid  carries the ’price’ of surrender of a part of its freedom and   independence in matters of administration.  As a consequence,  it held that Section 57(3) of the Act providing that  appointments of Principal should be on the basis of seniority- cum-fitness, is valid and binding on minority institutions.     

10.     The appellants contend that the right to appoint Principal  and teachers is the most important facet of minority’s "right to  administer" under Article 30(1) of the Constitution. They  submit that receipt of aid by minority institutions, does not, in  any way, fetter or abridge their constitutional right to  administer educational institutions, and therefore Section 57(3)  of the Act requiring  the appointment of only the senior-most of  lecturers as Principal is violative of Article 30(1) of the  Constitution.    11.     On the other hand, the respondents contend that  minorities do not have an unfettered right under Article 30(1) to  administer and manage its education institutions; that the State  and its agencies can regulate  certain facets of administration of  private educational institutions by minorities, in particular  by  prescribing the minimum qualification, experience and other  conditions bearing on merit for being appointed as a teacher or  Principal; that if  such institution is aided by the State, the State  can make regulations governing the service conditions for  teaching and other staff, which includes the post of Principal;  and that Section 57(3) of the Act providing for the manner of  filling the post of Principal by promotion, is therefore binding  upon minority institutions receiving aid from the State.

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12.     The rival contentions give rise to the following questions:

(i)     To what extent, the State can regulate the right of  the minorities to administer their educational  institutions, when such institutions receive aid  from the State.  

(ii)    Whether the right to choose a Principal  is part of  the right of  minorities under Article 30(1)  to  establish and administer educational institutions of  their choice.  If so, Section 57(3) of the Act would  violate Article 30(1) of the Constitution of India.

Re : Question (i)

13.     Article 30(1) gives  minorities the right to establish and  administer educational institutions of their choice. In State of  Kerala v. Very Rev. Mother Provincial [1970 (2) SCC 417], a  Constitution Bench of this Court explained ’right to administer’  thus :

"Administration means ’management of the affairs’ of the  institution. This management must be free of control so that  the founders or their nominees can mould the institution as  they think fit, and in accordance with their ideas of how the  interests of the community in general and the institution in  particular will be best served. No part of this management  can be taken away and vested in another body without an  encroachment upon the guaranteed right."

"There is, however, an exception to this and it is that the  standards of education are not a part of management as  such. These standards concern the body politic and are  dictated by considerations of the advancement of the  country and its people. Therefore, if universities establish  the syllabi for examinations they must be followed, subject  however to special subjects which the institutions may seek  to reach, and to a certain extent the State may also  regulate the conditions of employment of teachers and the  health and hygiene of students. Such regulations do not  bear directly upon management as such although they may  indirectly affect it. Yet the right of the State to regulate  education, educational standards and allied matters  cannot be denied. The minority institutions cannot be  allowed to fall below the standards of excellence expected  of educational institutions, or under the guise of exclusive  right of management, to decline to follow the general  pattern. While the management must be left to them, they  may be compelled to keep in step with others."

                                              (Emphasis supplied)            

14.    In The Ahmedabad St. Xavier’s College Society v. State  of  Gujarat [1974 (1) SCC 717 ],  a nine Judge Bench of this  Court considered the scope and ambit of minority’s right to   administer educational institutions established by them.  The  majority were of the view that prescription of conditions of  service would attract better and competent teachers and would  not jeopardize the right of the management of minority  institutions to appoint teachers of their choice.  It was also  observed : "Autonomy in administration means right to administer

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effectively and to manage and conduct the affairs of the  institutions. The distinction is between a restriction on the  right of administration and a regulation prescribing the  manner of administration. The right of administration is  day to day administration. The choice in the personnel of  management is a part of the administration. The university  will always have a right to see that there is no 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  minority institutions are engaged in activities which are not  conducive to the interest of the minority or to the  requirements of the teachers and the students."    

"The ultimate goal of a minority institution too imparting  general secular education is advancement of learning. This  Court has consistently held that it is not only permissible  but also desirable to regulate everything in educational and  academic matters for achieving excellence and uniformity  in standards of education.

In the field of administration it is not reasonable to claim  that minority institutions will have complete autonomy.  Checks on the administration may be necessary in order to  ensure that the administration is efficient and sound and  will serve the academic needs of the institution. The right  of a minority to administer its educational institution  involves, as part of it, a correlative duty of good  administration."   

15.     In FRANK ANTHONY Public School Employees’  Association v Union of India [1986 (4) SCC 707], this Court  observed :  "The excellence of the instruction provided by an  institution would depend directly on the excellence of the  teaching staff, and in turn, that would depend on the quality  and the contentment of the teachers.  Conditions of service  pertaining to minimum qualifications of teachers, their  salaries, allowances and other conditions of service which  ensure security, contentment and decent living standards to  teachers and which will consequently enable them to render  better service to the institution and the pupils cannot surely  be said to be violative of the fundamental right guaranteed  by Article 30(1) of the Constitution.  The management of a  minority Educational Institution cannot be permitted under  the guise of the fundamental right guaranteed by Article  30(1) of the Constitution, to oppress or exploit its  employees any more than any other private employee.   Oppression or exploitation of the teaching staff of an  educational institution is bound to lead, inevitably, to  discontent and deterioration of the standard of instruction  imparted in the institution affecting adversely the object of  making the institution an effective vehicle of education for  the minority community or other persons who resort to it.   The management of minority institution cannot complain of  invasion of the fundamental right to administer the  institution when it denies the members of its staff the  opportunity to achieve the very object of Article 30(1)  which is to make the institution an effective vehicle of  education."  

16.     The scope of Article 30(1), with reference to the scope of  the right to administer educational institutions, was also

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considered  by  this court  in In  re. Kerala Education Bill,   1957 ( AIR 1958 SC 956), Rev.Sidhajbhai v. State of Bombay   [1963 (3) SCR 837], D.A.V. College v. State of Punjab  [1971  (2) SCC 269],  All Saints High School v. Government of A.P.  [1980 (2) SCC 478],  St. Stephen’s College v. University of  Delhi [1992 (1) SCC 558],  N. Ammad  v. Manager, Emjay  High School [1998 (6) SCC 674],  Board of Secondary  Education & Teaching Training v. Joint Director of Public  Instructions, Sagar  [1998 (8) SCC 555].  

17.     In TMA Pai (supra), this Court made it clear that a  minority institution does not cease to be so, merely on receipt  of aid from the State or its agencies. In other words, receipt of  aid does not alter the nature or character of the minority  educational institution receiving aid. Article 30(1) clearly  implies that any grant that is given by the State to the minority  institution cannot have such conditions attached to it which will  in any way dilute or abridge the rights of the minorities to  establish and administer educational institutions. But all  conditions that have relevance to the proper utilization of the   aid by an educational institution can be imposed. The High  Court, however, wrongly construed TMA Pai and concluded  that acceptance of aid by a minority institution takes away its  right to claim immunity from interference and therefore the  State can lay down any regulation governing the conditions of  service of employees of aided minority institutions ignoring the  constitutional guarantee under Article 30(1). For this purpose,  the High Court relied on the  observations in Paras 72 and 73 of  TMA Pai (supra).  The said paragraphs are extracted below   :  

"72.    Once aid is granted to a private professional  educational institution, the Government or the State  agency, as a condition of the grant of aid, can put fetters on  the freedom in the matter of administration and  management of the institution. The State, which gives aid  to an educational institution, can impose such conditions as  are necessary for the proper maintenance of the high  standards of education as the financial burden is shared by  the State. The State would also be under an obligation to  protect the interest of the teaching and non-teaching staff.  In many States, there are various statutory provisions to  regulate the functioning of such educational institutions  where the States give, as a grant or aid, a substantial  proportion of the revenue expenditure including salary, pay  and allowances of teaching and non-teaching staff. It would  be its responsibility to ensure that the teachers working in  those institutions are governed by proper service  conditions. The State, in the case of such aided institutions,  has ample power to regulate the method of selection and  appointment of teachers after prescribing requisite  qualifications for the same. Ever since In Re, Kerala  Education Bill, 1957 [AIR 1958 SC 956] this Court has  upheld, in the case of aided institutions, those regulations  that served the interests of students and teachers. Checks on  the administration may be necessary in order to ensure that  the administration is efficient and sound and will serve the  academic needs of the institutions. In other words, rules  and regulations that promote good administration and  prevent maladministration can be formulated so as to  promote the efficiency of teachers, discipline and fairness  in administration and to preserve harmony among affiliated  institutions."

73.     There are a large number of educational institutions,  like schools and non-professional colleges, which cannot

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operate without the support of aid from the State, Although  these institutions may have been established by  philanthropists or other public-spirited persons, it becomes  necessary, in order to provide inexpensive education to the  students, to seek aid from the State. In such cases, as those  of the professional aided institutions referred to  hereinabove, the Government would be entitled to make  regulations relating to the terms and conditions of  employment of the teaching and non-teaching staff  whenever the aid for the posts is given by the State as well  as admission procedures. Such rules and regulations can  also provide for the reasons and the manner in which a  teacher or any other member of the staff can be removed. In  other words, the autonomy of a private aided institution  would be less than that of an unaided institution."         

But the aforesaid observations in Paras 72 and 73 were not   made with reference to aided minority educational institutions.  The observations in para 72 were intended for aided non- minority private professional institutions. The observation in  para 73 in the context of  aided non-minority non-professional  private institutions. The position of minority educational  institutions securing aid from the State or its agencies was  considered in Para 80 to 155, wherein it was clearly held that  receipt of State-aid does not annihilate the right guaranteed to  minorities to establish and administer  educational institutions  of their choice under Article 30(1).

18.     The observations of the Eleven-Judge Bench in TMA Pai  (supra) in respect of the extent to which the right of  administration of  aided minority  educational institutions could   be regulated, are extracted below :  "\005\005 the state cannot, when it chooses to grant aid to  educational institutions, deny aid to a religious or linguistic  minority institution only on the ground that the  management of that institution is with the minority. We  would, however, like to clarify that if an abject surrender of  the right to management is made a condition of aid, the  denial of aid would be violative of Article 30(2). However,  conditions of aid that do not involve a surrender of the  substantial right of management would not be  inconsistent with constitutional guarantees, even if they  indirectly impinge upon some facet of administration.

It cannot be argued that no conditions can be imposed  while giving aid to a minority institution. Whether it is an  institution run by the majority or the minority, all  conditions that have relevance to the proper utilization of  the grant-in-aid by an educational institution can be  imposed. \005. The conditions for grant or non-grant of aid to  educational institutions have to be uniformly applied,  whether it is a majority-run institution or a minority-run  institution. As in the case of a majority run institution, the  moment a minority institution obtains a grant of aid, Article  28 of the Constitution comes into play. When an  educational institution is maintained out of State funds, no  religious instruction can be provided therein."                                                 (Emphasis supplied)                          Among the questions formulated and answered by the majority  while summarising conclusions, Question 5(c) and answer  thereto has a bearing on the issue on hand :  Question 5 ( c ) is  extracted below :  "Whether the statutory provisions which regulate the facets

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of administration like control over educational agencies,  control over governing bodies, conditions of affiliation  including recognition/withdrawal thereof, and appointment  of staff, employees, teachers and principals including their  service conditions and regulation of fees, etc. would  interfere with the right of administration of minorities ?

The first part of the answer to Question 5 ( c ) related to  unaided minority institutions. With reference to statutory  provisions regulating the facets of administration, this court  expressed the view that in case of an unaided minority  educational institutions, the regulatory measure of control  should be minimal; and in the matter of day-to-day  management, like the appointment of staff (both teaching and  non-teaching) and administrative control over them, the  management should have the freedom and there should not be  any external controlling agency.  But such  institutions should  have to comply with the conditions of recognition and   conditions of affiliation to a University or Board; and a rational  procedure for the selection of teaching staff and for taking  disciplinary action has to be evolved by the management itself.  This Court also held that fees to be charged by unaided  institutions cannot be regulated but no institution should charge  capitation fee.

The second part of the answer to Question 5( c ) applicable  to  aided minority  institutions,  is extracted below :-  "For redressing the grievances of employees of aided and  unaided institutions who are subjected to punishment or  termination from service, a mechanism will have to be  evolved, and in our opinion, appropriate tribunals could be  constituted, and till then, such tribunals could be presided  over by a judicial officer of the rank of District Judge.       The State or other controlling authorities, however, can  always prescribe the minimum qualification, experience  and other conditions bearing on the merit of an individual  for being appointed as a teacher or a principal of any  educational institution.

Regulations can be framed governing service conditions for  teaching and other staff for whom aid is provided by the  State, without interfering with the overall administrative  control of the management over the staff."                                           (Emphasis supplied)

The position enunciated in TMA Pai is reiterated in P.A.  Inamdar vs. State of Maharashtra [2005 (6) SCC 537].  

19.  The general principles relating to establishment and  administration of educational institution by minorities may be  summarized thus:  

(i)     The right of minorities to establish and  administer   educational institutions of their choice comprises the  following rights  :

a)      To choose its governing body in whom the founders  of the institution have faith and confidence to  conduct and manage the affairs of the institution;

b)      To appoint teaching staff (Teachers/Lecturers and  Head-masters/Principals) as also non-teaching staff;  and to take action if there is dereliction of duty on the

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part of any of its employees;  

c)      To admit eligible students of their choice and to set  up a reasonable fee structure;  

d)      To use its properties and assets for the benefit of the  institution;

(ii)    The right conferred on minorities under Article 30 is only  to ensure equality with the majority and not intended to  place the minorities in a more advantageous position vis- ‘-vis the majority.  There is no reverse discrimination in  favour of minorities.  The general laws of the land  relating to national interest, national security, social  welfare, public order, morality, health, sanitation,  taxation etc. applicable to all, will equally apply to  minority institutions also.  

(iii)   The right to establish and administer educational  institutions is not absolute.  Nor does it include the right  to maladminister. There can be regulatory measures for  ensuring educational character and standards and  maintaining academic excellence.  There can be checks  on administration as are necessary to ensure that the  administration is efficient and sound, so as to serve the  academic needs of the institution. Regulations made by  the State concerning generally the welfare of students  and teachers, regulations laying down eligibility criteria  and qualifications for appointment, as also conditions of  service of employees (both teaching and non-teaching),  regulations to prevent exploitation or oppression of  employees, and regulations prescribing syllabus and  curriculum of study fall under this category.  Such  regulations do not in any manner interfere with the right  under Article 30(1).

(iv)    Subject to the eligibility conditions/qualifications     prescribed by the State being met, the unaided minority  educational institutions will have the freedom to appoint  teachers/Lecturers by adopting any rational procedure of  selection.

 (v)     Extention of aid by the State, does not alter the nature  and character of the minority educational institution.   Conditions can be imposed by the State to ensure  proper utilization of the aid, without however diluting  or abridging the right under Article 30(1).  

20.  Aided institutions give instruction either in secular  education or professional education. Religious education is  barred in educational institutions maintained out of State fund.  These aided educational minority institutions providing secular  education or professional education should necessarily have  standards comparable with non-minority educational  institutions. Such standards can be attained and maintained only  by having well qualified professional teachers. An institution  can have the services of good qualified professional teachers  only if the condition of service ensures security, contentment  and decent living standards. That is why  State can regulate the  service conditions of the employees of the minority educational  institutions to ensure quality of education. Consequently, any  law intended to regulate the service conditions of employees of  educational institutions will apply to minority institutions also,  provided that such law does not interfere with the overall  administrative control of the managements over the staff.

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21.  We may also recapitulate the  extent of regulation by the  State, permissible in respect of employees of minority  educational institutions receiving aid from the State, as clarified  and crystalised in TMA Pai.  The State can prescribe : (i)     the minimum qualifications, experience and other  criteria  bearing on merit, for making appointments,

(ii)    the service conditions of employees without  interfering with the overall administrative control by  the Management over the staff.

(iii)   a mechanism for redressal of the grievances of the  employees.

(iv)    the  conditions  for  the   proper  utilisation  of  the  aid by the educational institutions, without abridging  or diluting the right to establish and administer  educational institutions.

In other words, all laws made by the State to regulate the  administration of educational institutions,  and grant of aid, will  apply to minority educational institutions also.   But if any such  regulations interfere with the overall administrative control by  the Management over the staff, or abridges/dilutes, in any other  manner, the right to establish and administer educational  institutions, such regulations, to that extent, will be inapplicable  to minority institutions.  Re: Question (ii) :

22.     The  Principal or Headmaster of an educational  institution is responsible for the functional efficiency of the  institution, as also the quality of education and discipline in the   institution.  He is also responsible for maintaining the  philosophy and objects of the institution.

23.     In State of Kerala vs. Very Rev. Mother Provincial [1970  (2) SCC 417], this Court upheld the decisions of the Kerala  High Court declaring sub-sections (1) (2) (3)  of section 53 of  the Kerala University Act, 1969 relating to appointment of  Principals were ultra vires Article 30(1) in respect of minority  institutions. This Court affirmed the following findings of the  High Court (reported in 1969 Kerala Law Times 749) without  independently considering the same :-

"The principal of a college is, as S.2(12) recognizes, the  head of the college, and, the post of the principal is of  pivotal importance in the life of a college; around him  wheels the tone and temper of the institution; on him  depends the continuity of its traditions, the maintenance of  discipline and the efficiency of its teaching; and the right to  choose the principal is perhaps the most important facet of  the right to administer a college. The imposition of any  trammel thereon \026 except to the extent of prescribing the  requisite qualifications and experience or otherwise  fostering the interests of the institution itself \026 cannot but  be considered as a violation of the right guaranteed by  article 30(1) of the Constitution, and, for the reasons we  have already given, by article 19(1)(f) as well. To hold  otherwise would be to make the rights "a teasing illusion, a  promise of unreality". Provision may, of course, be made to  ensure that only proper persons are appointed to the post of  principal; the qualifications necessary may be prescribed,  and the mode of selection for the purpose of securing the  best men may be laid down. But to go beyond that and

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place any further fetter on the choice would be an  unreasonable interference with the right of management.  Therefore, so far as the post of principal is concerned, we  think it should be left to the management to secure the  services of the best person available. This, it seems to us,  is of paramount importance, and the prospects of  advancement of the staff must yield to it. The management  must have as wide a field of choice as possible; yet sub- section (2) of Section 53 restricts the choice to the teachers  of the colleges or of all the colleges, as the case may be,  and enables the appointment of an outsider only if there is  no suitable person in such college or colleges. That might  well have the result of condemning the post to a level of  dull mediocrity. A provision by which an outsider is to be  appointed, or a junior member of the staff preferred to a  senior member, only if he is of superior merit, the  assessment of which must largely be left to the  management, is understandable; but a provision which  compels the management to appoint only a teacher of the  college (or colleges) unless it pronounces all the teachers  unsuitable, is clearly in derogation of the powers of the  management, and not calculated to further the interest of  the institution\005\005\005.. But we might say that there can be  no objection to the appointment of the principal as of any  other member of the staff being subject to the approval of  some authority of the University so long as disapproval can  be only on the ground that the person appointed has not the  requisite qualifications. Also that if disapproval is not to be  only on some such stated ground, but is left entirely to the  will and pleasure of the appointing authority, that would be  to deprive the educational agency of its power of  appointment and would be bad for offending article  19(1)(f) and article 30(1)."  (Emphasis supplied)    

24.     The importance of the right to appointment of  Principals/Head-masters and teachers of their choice by  minorities, as an important part of their fundamental rights  under Article 30 was highlighted in St. Xavier (supra) thus :

"It is upon the principal and teachers of a college that the  tone and temper of an educational institution depend. On  them would depend its reputation, the maintenance of  discipline and its efficiency in teaching. The right to  choose the principal and to have the teaching conducted  by teachers appointed by the management after an overall  assessment of their outlook and philosophy is perhaps the  most important facet of the right to administer an  educational institution\005\005. So long as the persons 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 established by them." [Emphasis supplied]

25.     In N.Ammad (supra) the appellant contended that he  being the senior-most graduate teacher of an aided minority  school, he should be appointed as the Headmaster and none  else. He relied on Rule 44A of the Kerala Education Rules  which provided that appointment of Headmaster shall ordinarily  be  according to seniority, from the seniority list prepared and  maintained under clauses (a) and (b) of Rule 34. This Court  held: "Selection and appointment of Headmaster in a school (or

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Principal of a college) are of prime importance in  administration of that educational institution. The  Headmaster is the key post in the running of the school. He  is the hub on which all the spokes of the school are set  around whom they rotate to generate result. A school is  personified through its Headmaster and he is the focal point  on which outsiders look at the school. A bad Headmaster  can spoil the entire institution, an efficient and honest  Headmaster can improve it by leaps and bounds. The  functional efficacy of a school very much depends upon the  efficiency and dedication of its Headmaster. This pristine  precept remains unchanged despite many changes taking  place in the structural patterns of education over the years.

How important is the post of Headmaster of a school has  been pithily stated by a Full Bench of the Kerala High  Court in Aldo Maria Patroni v. E.C. Kesavan (AIR 1965  Ker 75). Chief Justice M.S. Menon has, in a style which is  inimitable, stated thus :

"The post of the headmaster is of pivotal importance in the  life of a school. Around him wheels the tone and temper of  the institution; on him depends the continuity of its  traditions, the maintenance of discipline and the efficiency  of its teaching. The right to choose the headmaster is  perhaps the most important facet of the right to administer a  school, and we must hold that the imposition of any  trammel thereon \026 except to the extent of prescribing the  requisite qualifications and experience \026 cannot but be  considered as a violation of the right guaranteed by Article  30(1) of the Constitution. To hold otherwise will be to  make the right ’a teasing illusion, a promise of unreality’."                

Thereafter, this Court concluded that the management of  minority institution is free to find out a qualified person either  from the staff of the same institution or from outside, to fill up  the vacancy; and that the management’s right to choose a  qualified person as the Headmaster of the school is well  insulated by the protective cover of Article 30(1) of the  Constitution and it cannot be chiselled out through any  legislative act or executive rule except for fixing up the  qualifications and conditions of service for the post; and that  any such statutory or executive feat would be violative of the  fundamental right enshrined in Article 30(1) and would  therefore be void. This Court further observed that if the  management of the school is not given the wide freedom to  choose the person for holding the key-post of Principal subject,  of course, to the restriction regarding qualifications to be  prescribed by the State, the right to administer the School  would get much diminished.

26.   In Board of Secondary Education and Teachers Training  (supra), this Court held :  "The decisions of this Court make it clear that in the matter  of appointment of the Principal, the management of a  minority educational institution has a choice. It has been  held that one of the incidents of the right to administer a  minority educational institution is the selection of the  Principal. Any rules which takes away this right of the  management have been held to be interfering with the  right guaranteed by Article 30 of the Constitution. In this  case, both Julius Prasad selected by the management and  the third respondent are qualified and eligible for

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appointment as Principal according to rules. The question  is whether the management is not entitled to select a person  of their choice. The decisions of this court including the  decision in State of Kerala v. Very Rev. Mother Provincial  [1970 (2) SCC 417] and Ahmedabad St. Xavier’s College  Society v. State of Gujarat make it clear that this right of  the minority educational institution cannot be taken away  by any rules or regulations or by any enactment made by  the State. We are, therefore, of the opinion that the High  Court was not right in holding otherwise. The State has  undoubtedly the power to regulate the affairs of the  minority educational institutions also in the interest of  discipline and excellence. But in that process, the  aforesaid right of the management cannot be taken away,  even if the Government is giving hundred per cent grant."  

(Emphasis supplied)          

27.     It is thus clear that the freedom to choose the person to be  appointed as Principal has always been recognized as a vital  facet of the right to administer the educational institution. This  has not been, in any way, diluted or altered by TMA Pai.  Having regard to the key role played by the Principal in the  management and administration of the educational institution,   there can be no doubt that the right to choose the Principal is an  important part of the right of administration and even if the  institution is aided, there can be no interference with the said  right. The fact that the post of the Principal/Headmaster  is also  covered by State aid, will make no difference.

28. The appellant contends that the protection extended by  Article 30(1) cannot be used against a member of the teaching  staff who belongs to the same minority community.  It is  contended that a minority  institution cannot ignore the rights of  eligible  lecturers belonging to the same community, senior to  the person  proposed to be selected, merely because the  institution  has the right to select a Principal of its choice.  But  this contention ignores the position that the right of the minority  to select a Principal of its choice is with reference to the  assessment of the person’s outlook and philosophy and ability  to implement its objects. The management is entitled to appoint  the person,  who  according to them is most suited, to head the  institution, provided he possesses the qualifications prescribed  for the posts.  The career advancement prospects of the teaching  staff, even those belonging to the same community, should have  to  yield to the right of the management under Article 30(1) to  establish and administer educational institutions.  

29.     Section 57(3) of the Act provides that the post of  Principal when filled by promotion is to be made on the basis of  seniority-cum-fitness.  Section 57(3) trammels the right of the  management to take note of merit of the candidate, or the   outlook and philosophy of the candidate which will determine  whether he is supportive of the  objects  of the institution.  Such  a provision clearly interferes with the right of the minority  management  to have a person of their choice as head of the  institution and thus violates Article 30(1).  Section 57(3) of the  Act cannot therefore apply to minority run educational  institutions even if they are aided.  

30.     In view of the above, we allow these appeals and,  consequently, set aside the judgment dated 5.6.2003 of the High  Court.  As a consequence, O.P.Nos.10111/2000, 10721/2001  and 14337/2000 stand dismissed.  O.P.No.3015, 3742 and

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6621/2003 filed by the College Managements/Selected  Principals are allowed.