# GOVERNING BODY, ST. ANTHONY'S COLLEGE, SHILLONG & ORS v. REV. FR. PAUL PETTA OF SHILLONG EAST KHASI HILLS

- **Citation:** [1988] Supp. 2 S.C.R. 507
- **Court:** Supreme Court of India
- **Decided:** 1988-08-18
- **Case number:** Civil Appeal No. 3717 of 1986
- **Bench:** M.P. Thakkar, B.C. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/governing-body-st-anthony-s-college-shillong-ors-v-rev-fr-paul-petta-of-10132
- **Pages:** 11

## Headnote

St. Anthony's College-Whether Salesian Provincial/President of
the Governing Body of the College could order transfer of the Principal
A
B
of the College or whether the governing Body could pass such an order C
of transfer-Whether an opportunity of hearing was to be given to the
Principal to show cause against the proposed transfer.
The respondent had. been appointed Principal of St. Anthony's
CoUege by Salesian Provincial and his appointment had been approved
by the )}irector of Public Instruction (D.P.I.) on the recommendation of D
tlje,,governiitg body of the CoUege. Due to differences between the Princiiraf 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
CoUege, the appeUant 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 E
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.J. 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 F
appointment was approved by the D.P:i. The respondent filed·a writ
· petition in the High Court, contending tltat the ·siilesian 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 approval of the D.P.I. could transfer him
under the statutory rules. and that the order of transfer, having been G
passed without giving him any opportunity to show cause, was
arbitrary, illegal and ma/a 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 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 lD abeyance and
H
507
508
SUPREME COURT REPORTS
11988] Supp. 2 S.C.R.
A
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.
.
..
B
.
·It was contended by the appeilants inter .alia. that ihe 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
C
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 instrucD
lions 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
E
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. Tl!is order of transfer prejudicially affected the
stat~s of the respondent. [515E-FJ
J1
The main question for consideration was whether the Salesian
Provincial, appellant No. 2 was competent to transfer the respondent
who had been app

## Text

GOVERNING BODY, ST. ANTHONY'S COLLEGE,
SHILLONG & ORS.
v.
REV. FR. PAUL PETTA OF SHILLONG EAST
KHASI HILLS.
AUGUST 18, 1988
[M.P. THAKKAR AND B.C. RAY, JJ.]
St. Anthony's College-Whether Salesian Provincial/President of
the Governing Body of the College could order transfer of the Principal
A
B
of the College or whether the governing Body could pass such an order C
of transfer-Whether an opportunity of hearing was to be given to the
Principal to show cause against the proposed transfer.
The respondent had. been appointed Principal of St. Anthony's
CoUege by Salesian Provincial and his appointment had been approved
by the )}irector of Public Instruction (D.P.I.) on the recommendation of D
tlje,,governiitg body of the CoUege. Due to differences between the Princiiraf 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
CoUege, the appeUant 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 E
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.J. 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 F
appointment was approved by the D.P:i. The respondent filed·a writ
· petition in the High Court, contending tltat the ·siilesian 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 approval of the D.P.I. could transfer him
under the statutory rules. and that the order of transfer, having been G
passed without giving him any opportunity to show cause, was
arbitrary, illegal and ma/a 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 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 lD abeyance and
H
507
508
SUPREME COURT REPORTS
11988] Supp. 2 S.C.R.
A
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.
.
..
B
.
·It was contended by the appeilants inter .alia. that ihe 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
C
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 instrucD
lions 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
E
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. Tl!is order of transfer prejudicially affected the
stat~s of the respondent. [515E-FJ
J1
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 governi.ng body of the college and
approved by the D.P.I. as per the Government instructions applicable
to a minority college. [515G]
\
G
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 administraH tive actions the audi alteram partem rule is applicable; the person
ST. ANTHONY'S COLLEGE v. PAUL PETTA
509
affected by the order had to be given an opportunity of hearing against
Ai
the purported order apart.from the question wl)etber the Assam Aided
College Management Rules and Assam Aided College Employees, Rules
a~e applicable to ininority institutions.·{516Jl-D] ·
·
The appellants contended that Salesian Provincial, appellant No.
B
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 c?nferring such a power. [SI6F]
The question was whether the Salesian Provincial was, the
appointing anthority of the respondent, or the governing body of the
College appointed the respondent and recommended his appointment C
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 been directed by the order oftbe High Court. In so far as
the respondent was "transferred in his capacity as a priest from one D
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 taJlsfer 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 serionsly affected. his
E
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 acconla!lfl with 1aw: •. oould not be faulted.l5_1_6G-H; SI7A:or
'
CIVIL 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 Appellants.
Shankar Ghosh, S.K. Hom Choudhary and S.K. Nandy for the
Respondent.
The Judgment of the Court was delivered by
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SUPREME COURT REPORTS
[1988] Snpp. 2 S.C.R.
A
RAY, J. The respondent, Rev. Fr. Paul Petta was appointed as
Principal of St. Anthony's College by Salesian Provincial on April i6,
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 Congregration, a
11
Catholic Religious Society for imparting general education. It is a
religious minoriry institution under Article 30 of lhe Constitution of
India and it is receiving Government grants-in-aid since the scheme of
deficit grant-in-aid to colleges was introduce by the Government of
Assam in 1959. After creation of Meghalaya it has been receiving
grants-in-aid under the same system as adopted by the Government of
G:
Meghalaya. By Memo No. EON. 75/74/280 dated 4th November,
1976, the Government of Meghalaya, Education Department
conveyed to the Director of Public Instruction, the sanction of the
Governmen:lof Meghalaya to the implementation of the U .G.C. scales
of pay, as. indicated thereunder to all the deficit college teachers
including ·the Principals, Professors in the State with effect from 1st
Ii>
April, 1975. By Memo No. EON. 75/74/51 dated December 7, 1979
the Government of Meghalaya .laid down the procedure for appointment of Principals, Vice-Principals and Lecturers and other staff in_
Religious Minority Colleges in the State with reference to Article 30 of
the Constitution. Paragraph 1 which is relevant is quoted below:
E
"In the matter 'of appointment of Principals and VicePrincipals in the colleges belonging to the religious minorities, the Governing Body of the College concerned shall
select a Principal an\l Vice-Principal from a panel of names
submitted by the sponsoring Church Organisation concerned, subject to the 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/75174/280 dated 4.11.76. Other conditions iri
respect of age of super-annuation etc. shall be as prescribed
by the State Government from time to time."
G
The respondent after his appointment had been working as
JiI
·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 Governing Body of the College regarding certain matters relating to the management of the college.
]
ST. ANTHONY'S COLLEGE ·v. PAUL PETTA [RAY; J.]
511
On December 14, 1985, Fr. John Kalapura, SDB, the Appellant
A
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
B
College, Shillong and am appointing Rev. Fr. J. Kenny as
Acting Principal of the same college with effect from
21.12.85.
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 i.n ac.cordance ..vith 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.I.) intimating
that he had been removed from the Principalship of St. Anthony's
College· by the appellant No. 2, the Salesian Provincial of Gauhati
Province and .Rev. Fr. Kenny had been appointed as the Acting Principal and Je(juested 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, 1979. The D .P .I. has
informed the respondent by his letter dated 23rd December, 1985 that
"this office is not aware of any such power given .to the Church
Authority concerned". The Salesian Provincial by its Jette~ dated
March 7, 1986 pro_posed the name of Fr. Ste_phen Mavely as Principal
of thecsaid College. The Governing Body at its meeting held on 17th
March, 1986 resolved that Fr. Stephen Mavely be appointed Principalcum-Secretary of St. Anthony's College with effect from March 10,
1986. The said appointment was approved by D.P.I., Meghalaya with
effect from 10th March, 1986.
The respondent filed a suit being T.S. No. l(T) of 1986 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
opened and taken _possession of, the. suit was withdrawn and a writ
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512
SUPREME COURT REPORTS
[1988] Supp. 2 S.C.R.
petition being Civil Rule No. 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 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.
D
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 VicePrincipals and conditions of grants-in-aid to aided colleges in 1956. It
has been stated that St. Anthony's College is a minority institution and
E
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 appointF
ment to the said post of Principal could never have been permanent.
As a priest he is transferable from time to time to different institutions
of the Society. The Constitution of the Salesians of Don Bosco pro-
[
vides 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
G
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
H admitted as a member of Don bosco. The petition is liable to b< dismis-

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514
SUPREME COURT REPORTS
[ 1988] Supp. 2 S. C.R.
conformity with the Government instructions (Annexure8). 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 p~titioner 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 flied 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
E 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/
74/51 issued by the Government of Meghalaya on 7th December, 1979
laying down the procedure of appointment of Principal, Vice-Prinr-
·, -
f' . cipal, Lecturers and other staff in religious minority colleges in the
State will apply to this Institution. The respondent who was a lecturer
Jl
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
6
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
ff. the post_of Teac1Ier, Don Bosco Technical School, Malig_aon, Gauhati
ST. ANTHONY'S COLLEGE v. PAUL PETTA [RAY; J.l
515
on December 21, 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 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
the iilstitutions 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
cannot question the order of transfer. The respondent so long as he
submits 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 impug~ed 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
of 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 mfoority college. There is no ·
dispute that tlie 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
he was sponsored by the Church Au\horities for the post of Principal
of the College and the Governing Body of the College recommended
to the D.P.I. for approval of his appointment as Principal of the ColA
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516
SUPREME COURT REPORTS
[f988l·Supp. 2 S.C.R.
A lege. ln such 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.l. can work as Principal in the minority college till he attains the
B age of super-annuation as determined by the Government. Th<
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
C natural justice and fair play mandate that in administrative actions the
audi alteram partem rule is e.pplicable and the person affected by the
order has to be given an opportunity of hearing against the purported
order aparffrom the question whether the Assam Aided College Management Rules, 1965 and Assam Aided College Employees' Rules;
1960 are applicable to minority institutions. We do not consider it
II> 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 qualifications for appointment to the post of lecturers and
E
principals as well as prescribing conditions for service are regulatory in
nature and they do not contravene the fundamental right guaranteed
under Artile 30 of the Constitution to the minority institutions as has
been observed in the case of.Frank Anthony Public School Employees
Association v. Union of India & Ors., [1987] 1 SCR 238. It has been
contended on behalf of the learned counsel for the appellants that the
IF
appellant No. 2, Salesian Provincial is the appointing autlfority of the
respondent and as such he has the right to make the impugned order of
transfer though there is no 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
(J 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 Body of the said College appointed the
respondent and recommended his appointment for approval to the
D.P .I. As stated earlier D.P.l. pursuant to the recommendation of the
H Governing Body approved the appointment of the respondent as
ST. ANTHONY'S COLLEGE v. PAUL PETTA !RAY, l.I
517
Principal of ihe said College, So this question has to be gone into and
determined by the Governing Body as has.been directed by the ordc1
of the High Court: It has been contended that the impugned order <>I
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 14.12.1985 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 Rs.5,000.
S.L.
Appeal dismissed.
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