# GANDHI FAIZEAM COLLEGE SHAHAJAHANPUR v. UNIVERSITY OF AGRA AND ANOTHER

- **Citation:** [1975] 3 S.C.R. 810
- **Court:** Supreme Court of India
- **Decided:** 1975-03-03
- **Bench:** K. K. Mathew, V. R. Krishna Iyer, A. C. Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gandhi-faizeam-college-shahajahanpur-v-university-of-agra-and-another-6388
- **Pages:** 24

## Headnote

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•
A
B
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·
m1~te~ 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 aspir~tions 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 funcF
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 Gover~ing 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 treasu~er,
it affects .the structure of the governing body, but it is indubitably a protection
agJinst likely mal·administration.
[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 ~t~uck 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]
A
B
c
D
E
F
G
H
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
h~ld 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 inclu

## Text

_Characters 0–39,989 of 63,373. This is a partial read: ask again with offset=39989 for what follows._

810
GANDHI FAIZEAM COLLEGE SHAHAJAHANPUR
v.
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•
A
B
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·
m1~te~ 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 aspir~tions 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 funcF
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 Gover~ing 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 treasu~er,
it affects .the structure of the governing body, but it is indubitably a protection
agJinst likely mal·administration.
[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 ~t~uck 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]
A
B
c
D
E
F
G
H
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
h~ld 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
812
SUPREME COURT REPORTS
[1975] 3 s.c.R.
.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 constitu~ed Governing
Hody .(which term includes Man~·.r!ng Committee) on which
!he staff of the college shall be rcptc~enlcd l'Y the Princip~! of
the College and at lca~t 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
A
c
D
E
F
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.
A.
B
c
D
E
F
G
H
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 p~nnissible 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 to- administer 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) ."
814
SUPREME COURT REPORTS
[19751 3 s.c.R.
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 considera1ion. 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
(I) [1971] 1 S.C.R. 734.
A
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B
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G
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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 education·a1 ·
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,odSt. Xavier's, College case (supra)
"It.is upon the principal and t~achers 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
(I) [1969] 2 S.C.R. 73 at 77-78.
(2) (1969] 1 s.c.c. 863.
8 lG
SUPREME COURT REPORTS
U 9751 3 s.c.R.
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.<.is~cnce 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."
B
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.
••
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u
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
818
SUPREME COURT REPORTS
Agra U11irersi1y
From
Sri R. N. Pathak,
Asst. Registrar (Affiliation),
Agra University. Agra.
To
The Principal,
G. F. College,
Shahjahanpur.
[ 19751 3 ~:.C.R..
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B
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
To
The Prcsidcnt1,
Managfug Committee,
G.F. Collcg~
Shahjahanpur.
The Deputy Registrar (Affl),
Agra Univc·rsity.
No .. 660
Dated, Shahjaha.npur,
Nov. 22, 1965
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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.
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We undertake to amend our constitution suitably to give the proE
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posal 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
vir~s 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.
820
SUPREME COURT REPORTS
(1975] 3 s.C.R.
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 asc·~r
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 quintcs~ence 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;
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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 ensu~ed that under the power of making regu~ations
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
822
SUPREME COURT REPORTS
[1975] 3 S.C.J~.
educational character c4 the institution and is condu~ive .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 reco1~nition 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
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GANDHI FAIZEA:M COLLEGE l'. AGRA UNIV. (Krishna Iyer, J.)
8 23
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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.