# STATE OF KERALA, ETC v. VERY REV. MOTHER PROVINCIAL, ETC

- **Citation:** [1971] 1 S.C.R. 734
- **Court:** Supreme Court of India
- **Decided:** 1970-08-10
- **Case number:** Civil Appeals Nos. 2598 to A 2600 of 1969
- **Bench:** M. Hidayatcllah, J.C. Shah, K. S. Hegde, A. N. Grover. A. N. Ray, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-kerala-etc-v-very-rev-mother-provincial-etc-5121
- **Pages:** 14

## Headnote

.
Kera/a University Act 9 of 1969-Ss. 48 49 53 56 58 and 63Constitutional validity oj-Constitutinn of J~dia~Ari. 30( 1 )-Scope of
. The Kerala ~niversity Act 1969 was passed to reorganise the Univer~
~1ty of ~era.la \\'Ith a view to establishing a teaching, residential and affiliating Un1vers1ty for the southern districts of the State of Kcrala. Some of
its provisions affected private colleges, particularly those founded by n1inority communities in the State. Their constitutional validity was challengcJ
by some members of those communities on variou"' grounds in writ petitions filed in the High Court.
'
The provisions challenged were 1nainly those contained in Chapters
VIII & IX of the Act.
By ss. 48 and 49, an 'Educational Agency' which
had established and \Vas maintaining a private college or a 'corporate
n1anagement' V·.'hich \Vas managing more than one private college, \1.:i.:-i·.!'
required to set up a governing body for a private college or a managin!.!
council for private colleges under one cor;:>orate n1anagement.
The Sec:
tions provided for the composition of the two bodies which were to include the Principals and managers of the private coll~ges, and nornine..:.;;
of the University and Government, as well as elected representatives
of
teachers.
Sub-section ( 2) prov id cc. for the new bodies becoming bodies
corporate having perpetual succession and a common seal. Sub-section ( 4)
provided that the members \vould hold office for four years and by subsection (5) of each secti.on a duty \.1/as cast on the nC,\\' governing body or
the managing council 'to administer' the private college or colleges in accordance \Vi th the provisions _of the Act.
Sub-section ( 6) in each section
laid down that the powers and functions of the new bodies. the removal oi
members thereof and the proceclure to be followed by them, shall be
prescribed by statutes.
·
The petitioners challenged the provisions of these two sections as also
inter a/ia those of (a) sub-sections (I), (2), (3) and (9) of s. 53 which
conferied on the Syndicate of the UniYersity the power to veto the decisions of the governing council; and a right of appeal to any
person
t1ggrieved by their action; (b) s~ction. 56 •. w~i<:h conferred ul_timate po~·e~
on the University and the Syndicate m d!Sciphnary matters m respect ot
teachers: (c) s. 58. which removed membership of the Le~islative ~ssembly
as a disqualification for teachers; and (d) s.63 (!)-which provic'.ed that
•Nhenever government was satisfied that a grave situation had arisen in the
v.·o·rking of a orivate college, it could inter alia, appoint the University tv
manage the affairs of such private college for a temporary period. II was
contended that these provisions df the. ne~. Act were !'iolative of ~r.ticle
30 which protects the rights of the mmonties to establish and administer
ed~cational institutions of their choice as also Articles 19(1 )(f), and !-l
of the Constitution.
A
B
c
D
E
F
G
H
A
8
c
D
E
F
G
H
KERALA v. MOTHER PROVINCIAL (Hidayatullah, C.J.)
735
The High Court allowed the writ petitions and declared some of the
provisions of the Act invalid.
On appeal to this Court,
HELD: The High Court was right in holding that sub-ss. (2) and (4)
of ss. 48 and 49 are ultra vires Art. 30( I). Sub-section ( 6) of eacb of
these two sections are also ultra vires : they offend more than the other
two of which they are a part and parcel. The High Court was also right
in declaring that sub-ss. (I), (2), (9) and of s. 53. sub-ss. (2) and (4)
of s. 56, are 11/tra vires as they fall within ss. 48 and 49; that s. 58 (in so
far as it ren1oves disqualification which . the founders may not hke
to
agree to, and s. 63 are ultra vi res Art. 30( 1) in respect of the n1inority
institutions. [746 E]
It is obvious that after the erection of the governing body or the inanaging council the founders or even the minoritv con1n1unity had no hand
in the administration.
The two bodies are Vested
\Vith the con1plete
administration of the

## Text

734
STATE OF KERALA, ETC.
v.
VERY REV. MOTHER PROVINCIAL, ETC.
August 10, 1970
[M. HIDAYATCLLAH, C.J., J.C. SHAH, K. S. HEGDE, A. N. GROVER.
A. N. RAY AND I. D. DUA, JJ.]
.
Kera/a University Act 9 of 1969-Ss. 48 49 53 56 58 and 63Constitutional validity oj-Constitutinn of J~dia~Ari. 30( 1 )-Scope of
. The Kerala ~niversity Act 1969 was passed to reorganise the Univer~
~1ty of ~era.la \\'Ith a view to establishing a teaching, residential and affiliating Un1vers1ty for the southern districts of the State of Kcrala. Some of
its provisions affected private colleges, particularly those founded by n1inority communities in the State. Their constitutional validity was challengcJ
by some members of those communities on variou"' grounds in writ petitions filed in the High Court.
'
The provisions challenged were 1nainly those contained in Chapters
VIII & IX of the Act.
By ss. 48 and 49, an 'Educational Agency' which
had established and \Vas maintaining a private college or a 'corporate
n1anagement' V·.'hich \Vas managing more than one private college, \1.:i.:-i·.!'
required to set up a governing body for a private college or a managin!.!
council for private colleges under one cor;:>orate n1anagement.
The Sec:
tions provided for the composition of the two bodies which were to include the Principals and managers of the private coll~ges, and nornine..:.;;
of the University and Government, as well as elected representatives
of
teachers.
Sub-section ( 2) prov id cc. for the new bodies becoming bodies
corporate having perpetual succession and a common seal. Sub-section ( 4)
provided that the members \vould hold office for four years and by subsection (5) of each secti.on a duty \.1/as cast on the nC,\\' governing body or
the managing council 'to administer' the private college or colleges in accordance \Vi th the provisions _of the Act.
Sub-section ( 6) in each section
laid down that the powers and functions of the new bodies. the removal oi
members thereof and the proceclure to be followed by them, shall be
prescribed by statutes.
·
The petitioners challenged the provisions of these two sections as also
inter a/ia those of (a) sub-sections (I), (2), (3) and (9) of s. 53 which
conferied on the Syndicate of the UniYersity the power to veto the decisions of the governing council; and a right of appeal to any
person
t1ggrieved by their action; (b) s~ction. 56 •. w~i<:h conferred ul_timate po~·e~
on the University and the Syndicate m d!Sciphnary matters m respect ot
teachers: (c) s. 58. which removed membership of the Le~islative ~ssembly
as a disqualification for teachers; and (d) s.63 (!)-which provic'.ed that
•Nhenever government was satisfied that a grave situation had arisen in the
v.·o·rking of a orivate college, it could inter alia, appoint the University tv
manage the affairs of such private college for a temporary period. II was
contended that these provisions df the. ne~. Act were !'iolative of ~r.ticle
30 which protects the rights of the mmonties to establish and administer
ed~cational institutions of their choice as also Articles 19(1 )(f), and !-l
of the Constitution.
A
B
c
D
E
F
G
H
A
8
c
D
E
F
G
H
KERALA v. MOTHER PROVINCIAL (Hidayatullah, C.J.)
735
The High Court allowed the writ petitions and declared some of the
provisions of the Act invalid.
On appeal to this Court,
HELD: The High Court was right in holding that sub-ss. (2) and (4)
of ss. 48 and 49 are ultra vires Art. 30( I). Sub-section ( 6) of eacb of
these two sections are also ultra vires : they offend more than the other
two of which they are a part and parcel. The High Court was also right
in declaring that sub-ss. (I), (2), (9) and of s. 53. sub-ss. (2) and (4)
of s. 56, are 11/tra vires as they fall within ss. 48 and 49; that s. 58 (in so
far as it ren1oves disqualification which . the founders may not hke
to
agree to, and s. 63 are ultra vi res Art. 30( 1) in respect of the n1inority
institutions. [746 E]
It is obvious that after the erection of the governing body or the inanaging council the founders or even the minoritv con1n1unity had no hand
in the administration.
The two bodies are Vested
\Vith the con1plete
administration of the institutions and v.1cre not ansv.·erahle to the fo•Jnders
in this respect.
Sub-sections ( 2). ( 4). (5) and ( 6) of ss. 48 and 49
clearly vest the management and ttdministration in the hands of the t\\'Ohndies v.·ith n1andates from the University. [743 Al
C'ouplcd \\ith this is the power of the V'icc-Chanccllor and the ')~nJi
cate under suh-sections (2) and (4) of s. 56 to hav~ the final say in rc,pect
of disciplinJ.ry proceedings against teachers. [ 744 B]
Furthermore. the provisio:is of s.58
~l<tnting special
privile,:;\.'~
to
teachers \vho happeneJ to be n1en1bers of the Legislative Asscn1bly enabled political parties to con1e into the picture of. ad.n1inistration of niirority
institutions. and coupled with the choice of non1inatcd member-;
l~ft to
Government and the University under ss.
48 and 49. it wa<; cleJr tlicre
\vas much roon1 for interference bv persons other than those in \\·hon1
the founding community \\.'Ould have confidence. [745 .1\1
·rhe pro\"i~ions of s. 63 laid do\.\·n elaborate proc~durc for rnan<i'..!.l':11cnt
of the private colleges in which the governing body or n1anaging C i.JLtncil
\Vould I.ave no say.
Furthermore sub-section 63(1) involved the transfer
of right to possession of the properties to the University. The High Court
rightly pointed out that this section provides for cornpulsory requi"ition of
the properties within Art.
31(2) and (2A).
To be effective the section
required the assent of the President under suh-s. (3) and it \Vas
not
obtained.
Therefore the savin!! in Art 31 . .\ (l)(b) \Vas not ::is,lilahle.
[746 Al
,
[The Court expressed no opinion regarding sub. ss. (1). (2), (ll and
(9) of s. 53 and suh.-ss. (2) and (4) of s. 56 l"is-a-vis Art. 30. The court
did not go into the question of invalidity of the provisions under Art.
19(1)(!)] [746 F].
Propositions establishecl in the following cases referred to and applied :
State of Bombay v. Bombay Education Society. [19551 I S.C.R. 568;
The State of Madras v. S. C. Dorairaian [1951] S.C.R. 525; Sidha•·ujhhai
v. State of Guiamf. [I 963] 3 S.C.R. 837; Katra Education Society \". State
of V.P. and Ors. [1966] 3 S.C.R. 328; Ir< re tlze Kera/a Ed11catio11 fJi/f
[1959] S.C.R. 995; Gujarat University. A hmedabad v. Krishna RanRanat/z
Mudholkar and others [1963] Supp. 1 S. C. R. 112;
Rn·. Father W.
Proosf and Ors. v. S;ate oi Bihar. [1969] 2 S.C.R. 73. referred to.
736
SUPREME COURT REPORTS
(1971]JS.C.R
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2598 to
A
2600 of 1969 and 21 to 53, 155 to 190, 199, 200 to 203, 273
and 324 of 1970.
Appeals from the judgment and order dated September 19,
1969 of the Kerala High Coun in O.P. 1450 of 1969 etc.
Moha11 Kumaramangalam,
K. S. Paripooram, R. K. Garg.
S. C. Agarwa/a and M. R. K. Pillai, for the appellant l_in C.As.
Nos. 2598 to 2600 of 1969 and 21 to 53 of 1970).
Mohan Kumaramanga/am, K. S. Paripoornam alld M. R. K.
Pillai for the respondent (in C.A. Nos. 155 to 190, 199, 200 to
203. 273 and 324 of 1970).
A. K. Sen,
P. C. Chandi, Joseph Vithayathil,
Bhuvanesh
Kumari, R. N. Banerjee, J. B. Dadachanji, 0. C. Mathur and
Ral'inder Kumar, .for the appellant (in C.As. Nos. 200 to 202 of
1970), respondent no. 1 ( C.A. Nos. 2598 to 2600 of 1969);
respondent no. 1 (in C.A. No. 21, 22, 26, 31, 32, 36. 37, 39, 43,
52, 156 to 158, 187. 160 to 164, 167, 168, 172, 173. 170, 165
to 181. 183, 186 and 189 of 1970).
Frank Anthony, ['. C . .Chandi, · Joseph Vithayathil.
E. C.
Agarwal, Bhuvanesh Kumari, R. N. Banerjee, J. B. Dadachanji,
0. C. Mathur and Ravinder Narain, for the appellant (in C.A. No.
203 of 1970) and respondent no. 1 (in C.A. Nos. 48 and 184 of
1970).
Frank Anthony, P. C. Chandi, A. T. M. Sampath, S. R. Agarwa/a and E. C. Agarwa/a, for respondent No. J (in C.A. Nos. 23
& J 59 of 1970).
M. C. Seta/vad. V. A. S. Muhammad, and A. S. Nambiar, for
the appellant (in C.A. No. 199 of 1970) and respondent No. 1 (in
C.A. No. 174 and 185 of 1970).
M. C. Setalvad and A. Sreedharan Nambiar, for the appellant
(in C.A. No. 273 of 1970).
n
c
D
E
F
A. Sreedharan Nambiar, for respondent No. 1 (in C.A. No. 38
G
·Of 1970).
R. Gopa/akrishnan, for the appellant (in C.A. Net.
324 of
1970) and respondent no. 1 (in C.A. No. 33 of 1970).
M. K. Nambyar, N. A. Subramanian and P. K. Pillai, for the
appellant (in C.As. Nos. 155 to 190 and 199 of 1970) and the
respondent (in C.A. Nos. 2598 to 2.600 of 1969 and 21 to 53,
200 to 203, 273 and 324 of 1970). '
H
KERALA v. MOTHER PROVINCIAL (Hidayatullah, C.J.)
737
A
A. S. R. Chari, N. Sudhakaran and K. M. K. Nair, for the
B
c
D
E
F
intervener (in C.As. No. 199 to 203 of 1970).
The Judgment of the Court was delivered by
Hidayatullah, C.J.
These appeals by certificates granted by
the High Court of Kerala under Arts. 132(1) and 13J(l)(c) of
the Constitution are directed against a common judgment, September 19, 1969, decJaring certain provisions of the KeraJa University
Act, 1969 (Act 9 of 1969) to be ultra vires the Constitution of
India while upholding the remaining Act as valid.
They were
heard together. This judgment will dispose of all of them. The
validity of the Act was challenged in the High Court by diverse
petitioners in 36 petitions under Art. 226 of the Constitution.
Some parts of the Act were declared ultra vires the Constitution
As a result there are cross appeals.
36 appeals hav.e been filed ·
against the several petitioners by the State of Kerala.
Another
36 appeals have been filed by the University of Kerala which made
common cause with the Government of Kerala. 7 appeals have
been r referred by seven original petitioners, who seek a declaration that some other provisions of the Act, upheld by the High
Court as valid, are also void.
The Kerala University Act 1969 (which repealed and replaced
the Kerala University Act 1957 (Act 14 of 1957) was passed to
reorganise the University of Kerala with a view to establishing a
teaching, residential and affiliating University for the southern
districts of the State of Kerala. Some of its provisions affected
private colleges, particularly those founded by minority communities in the State. They were consequently challenged on various
grounds. The petitions were consolidated in the High Court and
were decided by the judgment and order under appeal.
Before we begin to discuss these appeals we m:.y say a few
words about them.
33 petitioners belong to different denominations of the Christian community; 8 are Superiors of different
Catholic Religious Congregations; 8 are Catholic Bishops representing their dioceses; 3 are Vicars of Catholic parishes; 5 are
Boards of Associations constituted by different Catholic demnoG
minations for establishing colleges and other educational institutions and 3 are Bishops of the Malankara Orthodox Church. 4
petitions have been filed by the Metropolitan of the Marthoma
Syrian Church and 2 by the Madhya Kerala Diocese of the Church
of South India. The remaining 3 petitions are respectively by pri-.
vate colleges founded and administered by Sri Sankara College
H
Association Kalady, Sree Narayana Trusts Quilon and the Nair
Service Society Changarinacherry; The pP.titioners in the 33 petitions specially invoke the provisions of Art. 30 of the Constitution
which protects the right of the minorities to establish and adminisLt69SupCI(PJ/71-3
738
SUPREME COURT REPORTS
[1971) 1 S.C.R.
ter educational institutions of their choice.
All the 36 petitions
invoke Arts. 19(1J(f), 31 and 14 of the Constitution.
'
A
The impugned Act consists of 78 sections divided into 9 chap-
-ters.
The mam attack m the pet1t1ons is aga.' nst l...napter VIII
headed 'private colleges' consistmg of ss. 4 7 to 61 and some provisions of Chapter lX particularly s. 63.
The High Court has
B
declared that sub-ss. (2) and ( 4) of s. 48, Sub-ss. (2) and ( 4) of s.
49, suo-ss. (1), (2), (3) and (9) of s. 53, sub-ss. (2) and (4) of s.
56, s. 58 (except to some extent) are offensive of Art.19(1) (f) in
so far as citizen petitioners are concerned and additionally, in so
far as the minority institutions are concerned, offensive to Art.
30(1 ), and therefore void. The petitions were, therefore, allowed
except two petitions (O.P.S. No. 2339 and 2796 of 1969) filed by
C
Sree Sankara College Association and the Nair Service Society
since the petitioners were companies and were not entitled to the
benefit of Art. 30(1) not being minority institutions and not entitled to Art. 19(l)(f) not being citizens. Section 63 was, however,
held to offend Art. 31(2) and not saved by Art. 31A(l)(b) and this
declaration was in favour of all the petitioners. It was also di.ID
dared void as offending Art. 30(1) in so far as the minority institutions were concerned. The rest of the Act was declared to be valid
and the challenge to it was rejected. There was no order about
costs.
The State of Kerala and the University challenge the judgment in so far as it declares the provisions of the Act to be void
£
and the petitioners in the 7 counter appeals challenge the judgment
in so far as it has rejected the attack on some other provisions.
We shall deal first with the contentions urged on behalf of the State
of Kerala and the University of Kerala 3Jnd then deal with the contentions of the majority institutions and the challenge to the sur-
".iving portions of the impugned Act by the appealing original petiF
honers.
In the matter of the minorities the main attack comes from
Art. 30(1) of the Constitution. This clause reads :
"30. Right of minorities to establish and administer
educational institutions.
(1) All minorities, whether
based on religions or
language, shall have the right to establish and administer educational institutions of their choice.
,, . .
G
· It declares it to be a fundamental right of the minorities whether
H
based on religion or language, to establish and administ~r educational institutions of their choice. It is conceded by the petitioners
A
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KERALA v. MOTHER PROVINCIAL (Hidayatu//ah, C.J.)
739
representing minority communities before us (and indeed they could
not .gainsay this in the face of authorities of this Court) that the
State or the University to which these institutions are affiliated
may prescribe standards of teaching and the scholastic efficiency
expected from colleges.· They concede also that to a certain extent conditions of employment of teachers, hygiene and physical
training of students can be regulated.
What they co'ltended is
that here there is an attempt to interfere with the administration of
these institutions and this is an invasion of the fundamental right.
The minority communities further claim protection for their property rights in institutions under Arts. 31 and I 9(l)(f) and the
right to practise any profession or to carry on any occupation,
trade or business guaranteed by sub-cl. (g) of the latter article. The
majority community which is also the founder of private colleges
(of which three instances are before us) do not claim the right
stemming from Art. 30(1) but they claim the other rights mentioned above and further seek protection of equality in law with the
minority institutions and thus freedom in the establishment and
administration of their institutions.
The claim of the majority community institutions to equality
with minority communities in the matter of the establishment and
administration of their institutions leads to the consideration whether the equality clause can at all give protection, when the Constitution itself classifies the minority communities into a separate
entity for special protection which is denied to the majority community.
This is not a case of giving some benefits to minority
communities which in reason must also go to the majority community institutions but a special kind of protection for which the
Constitution singles out the minority communities. This question,
however, does not fall within our purview as the State, at the
hearing announced that it was not -intended to enforce the provisions of the law relating to administration against the majority
institutions only, if they could not be enforced 8'.;ainst the minority
institutions.
Therefore, we have to consider the disputed provisions primarily under Art. 30(1) and secondarily under Arts. 31
and 19 where applicable.
·
Article 30(1) has been construed before by this Court. Without referring to those cases it is sufficient to say that the clause
contemplates two rights which are separated in point of time. The
first. right i.s the !nitial right to establish institutions of the minority's
~ho!ce.. Estabh.shment here mean~ th~ bringing into being of an
ms!Jtut10n and 1t must be by a mmontv community. It matters
not if a sin~le philanthropic individual with his own mean~. founds
the irntitution or the community at large contributes the funds.
The position in law is the same and the intention in either case
must. be to found an institution for ;he benefit of a minority commumty by a member of that community. It is equally irrelevant
'1'
740
SUPRE~E' COURT REPORTS
( 1971] l S.C.R.
that in addition to the minority community others from other
mmority communities or even from the majority communit)' can
take advantage of these institutions. Such other commum!ies bnng
in income and they do not have to be turned away to enioy the
protection.
The next part of the right relates to the administration of such
institutions. 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 syllabi for examinations they must be
followed,· subject however to special subjects which the institutiQns
may seek to teach, and to a (;ertain 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 excellencC'
expected of educationJl 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. These propositions have been
firmly established in the State of Bombay v. Bombay Education
Society('), The State of Madras v. S. C. Durairajan( 2 ), In re the
Kerala Education Bill 1957(3), Sidharajbhai v. State of Gujarat(''),
Katra Education Societ.v v. State of U.P. & Ors.("), Gujarat Uni~
versity, Ahmedabad v. Krishna Ranganath Mudho/kar and Ors.( 6 )
and Rev. Father W. Proost & Ors. v. State of Bihar(7)
In the
last case it was said that the right need not be enlarged nor whittled
down.
The Constitution speaks of administration and that. must
fairly be left to the minority institutions and no more.
Applying
these principles we now con~ider the provisions of the Act.
· Th'' Act as stated already consists of 78 sections arranged
under 9 Chapters. Chapter VIII is headed 'Private Colleges' and
(I) [1955]1 S. C. R. 56S.
(2) [1951] S.C.R. 525.
(3) [19591 S. C. R. 995.
(4) [1963] 3 S. C. R. 837
(5) [1966] 3 S.C.R. 328.
(6) [1963] Supp t S. C. R. 112.
·
i71 [1969] 2 S. C. R. 73.
A
B
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E
F
G
H
A
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KERALA v. MOTHER PROVINCIAL (Hidayutullah, C.J.)
7H
Chapter IX 'Miscellaneous'. Chapter I cont:iins the short title and
commencement (s. 1) and definitions (s. 2).
We are concerned
with some definitions in s. 2 and Chapters Vlfi aind IX.
The other
chapters lay down the constitution ?f J:!niversity and :ontain m~t
ters relating thereto. They are not m dispute. The High Court m
its judgment has carefully summarized the impugned provisions
and it is not necessary for us to cover the same ground. We shall
content ourselves by mentioning -the important aspects briefly.
"College" in the Act means an institution maintained by, or affiliated to, the Univers;ity, in which instruction is provided in accordance with the provisions of the Statutes, Ordinances and Regulations. These are framed by the University. 'Educational Agency'
means any person or body of persons who or which establishes and
maintains a private college.
'Private College' means a college
maintained by an agency other than the Government or the University and affiliated to the University. 'Principal' means the head
of a college. By 'teacher' a> us¢ in the Act is meant a Principal,
Professor, Assistant-Professor, Reader,
Lecturer, Instructor or
such othr person imparting instruction or supervising research
and whose appointment has been. approved by the University in
any of the colleges or recognised institutions. 'Recognised teacher'
means a person employed as a teacher in an affiliated institution
and whose appointment has been approved by the University.
There is much overlap between 'college', 'teacher' and 'recognised
teacher' but there is no antinornical conlμsion which might have
otherwise resulted. These definitions by themselves are not questionable but in the context of the provisiO!ls of Chapters VIII and
IX, about to be referred to, the insistence on the recognition by
the University is claimed to be interference with the freedom of
management. Chapter VIII embraces ss. 47 to 61. It begins with
the definition of 'corporate management' vihich means a person or
body of persons who or which manages more than one private
college. Sections 48 and 49 deal respectively with (a) the governing body for private colle~ not under COJ'POl'llte management and
(b) with managing council for private · colle~ under coroorate
manal!llment In either case the educatioa agepcv (by which tenn
vie denote t~e educational. agency of a priVate college as also corporate manal(ement, that JS to say, the person or body of persons
who or which manages more than one private college) is required
to set U!> a e:oveming bodv for private coHe"" or a managina council for private colle<?es under one corporate management. The two
sections embodv the same orinciples and differ onlv because in one
case there is but one institution and in the other more than one.
Both consist of 7 sub-sections. Under these orovisions the educational agencv or the coroorate · management has to e~tablM1 a
governing bodv or a mana!!ing council resnPctivelv. The sections
give the comno~itions of the two bodies. The govPrniiw bociv set
up by the educational agency is to consist of 11 members and the
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(1971] 1 S.C.R.
managing council of 21 members. The 11 members of the governing body are (i) the princ.ipal of the private college (ii) the manaoer
of the private ~ollege (iii) a_ J?=O~ nominated by the Universit/in
accordance with the proyis1ons m that behalf contained in the
Statutes _(iv) a person n~inillated by the Government (v) a person
elected m accordance with such procedure as may be prescribed
by the Statutes of the University from among themselves by the
perma~ent teachers ~f the private college and (vi-xi) not more
th~ .six persons nom~nated by .the e~ucational agency. The compos1t1on of ~he managmg counct! consists of a principal in rotation
fr?m the pnvate ~olle~es, manager of the private colleges, the nombnees of the Umvers1ty and the Government as above described
two elected representativeS of the teachers and not more than 1.5
members nominated by the educational agency.
The Act ought
to have used the expression 'corporate management' instead of
'educational agency' but the meaning is clear.
It will thus be seen that a body quite apart from the educational
agency or the corporate inanagement is set up.
Sub-section (2)
in either section make these bodies into bodies corporate having
perpetual succession and a common seal. The manager of the college or colleges, as th_e _ciis_e ni.ay be, is the Chairman in either case
[sub-s. (3) ]. Sub-section ( 4) then says that the members shaH ho'd
office for a period of 4 years from t)le date of its constitution. Subsection (5) then says as follows : .
'
"It shall be the duty of the Governing body I (Managing council) to administer the private college (all the private colleges under the corporate management) in accordance with the provisions of this Act and the Statutes,
Ordinances, Rel(Ulations, Bye-laws and' Orders made
thereunder."
('Ne have attempted to combine the two provisions here. In the
case of goveming body the sub-section is to_ be read ~mitting the
words in brackets and i)l the case of managmg council the underlined words are to be omitt.ed and the sub-section' read with the
words in brackets.)
Sub-section (6) then· lays down _that the po_wers and functions
of the governin~ bodv (the managmg counc1!), the. rei:noval. of
members thereof and the procedure to be followed by 11, mc!udmg
the delegation of its powers. shal~ ?e p~esc.ribed by_ the Statut~.
Sub-section (7) lays down that dec1S1o~s m e1_ther of th~ tY"o bodies
shall be taken at meetings on the basis of simple ma1onty of the
members present and voting.
The1e sections were partly declared ultra vires of Art. 30'.1)
by the High Court as they took away from the founders the nght
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to administer their own institution. It is obvious that after the
erection of the governing body or the managing coll!lcil the founders or even the community has no hand Ill the administration.
The two bodies are vested with the complete administration of the
institutions.
These bodies have a legal personality distinct from
the educational agency or the corporate management.
They are
not answerable to the founders in the matter of administration~
Their powers and functions are determined by the University laws
and even the removal of the members is t\) be governed by the
Statutes of the University. Sub-sections (2), (4), (5) and (6) clearly
vest the management and administration in the hands of the two
bodies with mandates from the University.
In attempting to save these provisions Mr. Mohan Kumaramangalam drew attention to two facts only.· The first is that the nominees of the educational agencies or the corporate management have
the controlling voice and that the defect, if any, must be found in
the Statutes, Ordinances, Regulations, Bye-Jaws and Orders of the
University and not in the provisions of the Act. Both these arguments are not acceptabl~ to us.
The Constitution contemplates
the administration to be in the hands of the particular community
However Jesirable it might be to associate nominated members o.
the kind mentioned in ss. 48 and 49 with other members of the
governing body or the managing council nominees, it is obvious
that their voice must play a considerable part in management.
Situations might be conceived when they may have a preponderat·
ing voice. In any event, the administration goes to a distinct corporate body which is in no way answerable to the educational
agency or the corporate management. The founde.rs have no say
in the selection of the members nominated or selected except those
to be nominated bv them. It is, therefore, clear that by the
force of sub-ss. (2), (4) and (6) of ss. 48 and 49 the minoritv community loses the riitht to administer the institution it has founded.
Sub-section (5) also compels the governing body or the managing
council to follow the mandates of the Universitv in the administration of the institution. No doubt the Statutes, Ordinances, Re~nla
tions, RulPS, Bve-Jaws and Orders can also be examinPd in the iio.:ht
of Art. 30(1) but the blanket power so given to the University
bears adverselv unon the riPht of administration. This position is
further heightened bv the other provisions of the Act to which n
reference is now needed.
Section 53, sub-ss. (I), (2) and (3) confer on the Svndicate
of the Universitv the nower to veto even the action of tlie 2overning
bodv or the mana<rin~ council in the selection of the princioal.
Similarlv. snb-s. ( 4) takes awav from the educ•tional a2encv or
the. cornorate m•n•o•m•nt the rioht to ,e1•rt the t••clier•.
Tlie
in•i•tence on me•it in •nh-•. I IL) or '"' <enindtv-cum-fitne'' in sub·
s. (7) does not save the situation. The power is exercised not by
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[1971) 1 S.C.R.
~e . educational agency or the corporate management but by a
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dIStmct and autonomous body under the control of the Syndicate
of th~ University. Indeed sub-s. (9) gives a right of appeal to the
Syndicate to any person aggrieved by the action of governing body
or the managing coundl thus making the Syndicate the final and
absolute authority in these matters.
Coupled with this is the
power of Vice-Chancellor and the Syndicate in sub-ss. (2) and ( 4 l
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of s. 56. These sub-sections read :
"56. Conditions of service
of teachers of private
colleges.
(1)
(2) No teacher of a private college shall be dismissC
ed, removed. or reduced in rank by the governing body
or managing council without the previous sanction of the
Vice-Chaneellor or placed under suspension by the governing body or managing council for a continuous period
exceeding fifteen days without such previous sanction.
(3)
(4) A teacher ~gainst whom disciplinary. action is
taken shall have a right of appeal to the Syndicate, and
the Syndicate shall have power to order reinstatement of
the teacher in cases of wrongful removal or dismiosal and
to order ~ch other. remedial measures as it deems fit,
and the governing body or managing council, as the case
·may be, shall comply with the orde~."
These provisions clearly take away the disi:;iplinary action from
the governing body and the managing council and confer it upon
the Unive.rsity.
Then comes s. 58 which reads :
"58. Membership of Legislative Assembly, etc., not
to disqualify teachers.-
A teacher of a private college shall not be disqualified for continuing as such teacher .merely on the ground
that he has been elected as a member of the Legislative
Assembly of the State or of Parliament or of a
10~al
authority:
Provided that a teacher who is a member of the
Legislative Assembly of the State or of Parliament >hall
be on leave durinl( the period in which the Legislative
Assembly or Parliament, as the case may be, is in
session."
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745
A ference. When this is coupled with the choice of nominated mem·
bets left to Government and the University by sub-s. (1 )(d) of ss.
48 and 49, it is clear that there is much room for interference by
persons other than those in whom the founding community would
have confidence.
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To crown all there is the provision of s. 63(1) which reads :
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"63. Power to regulate the management of privak
colleges.
(1) Whenever Government are satisfied 011 r1:.ceipt
of a report from the University or upon other information that a grave situation has arisen in which the working of a private college cannot be carried on for all or
any of the following reasons, namely :-
(a) default in the payment of the salary of the mem ·
bers of the staff of the college for a period of i1ot less
than three months;
(b) wilful closing down of the college for a period
of not less than one month except in the case of the
closure of the college during a vacation;
(c) persistent default or refusal to carry out all or
any of the duties imposed on any of the authorities of
the college by this Act or the Statutes or Ordinances
or Regulations or Rules or Bye-laws or lawful orders
orders passed thereunder;
and that in the interest of private college it is necessary so to do, the Government may, after giving the governing body or managing council, as the case may be,
the manager appointed under sub-section (I) of section
50 and the education agency, if any, of the college a
reasonable opportunity of showing
cause against the
proposed action and after considering the cause, if any,
shown, by order, appoint the University to man&ge the
affairs of such private college temporarily for' a period
not exceeding two years;
Provided that in cases where action is taken under
this sub-section otherwise than on a report from the
Uni\'ersity,
it shall be consulted before taking such
action.
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The remaining provisions of this section lay down an elaborate procedure for management in which even the governing body
or the managing counr'' have n0 say. Sub-section 63(1) involves
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(1971]1 S.C.R.
t~e transfer of right to possession of the properties to the Univer·
s1ty. The High Court rightly pointed out that this se-:tion provid~s
for compulsory requisition of the properties within Art. 31(2) and
(2A). To be effective the section required the assent of the President under sub-s. (3) and it was not obtained.
Therefore the
saving in Art. 31A(l)(b) is not available.
Mr. Mohan Kumarmangalam brought to our notice passages
from the Report of the Education Commission in ...,hich the Com·
mission bad made suggestions regarding the condilk;ns of service
of the teaching staff in the universities and the collegeJ and stan·
dards of teaching.
He also referred to the Report of the Education Commission on the status of teachers, suggestions for improving the teaching methods and standards. He argued that what
has been done by the Kerala University Act is to i1uplement these
suggestions in Chapters VIII and IX and particelarly the impugned
sections.
We have no doubt tnat the provisions of the Act were
made bona fide and in the illterest of education but unfortunately
they do affect the administration of these institutions and rob the
founders of that right which the Constitution desires should be
theirs.
The provisions, even if salutary, cannot stand in the face
of the constitutional guarantee.
We do not, therefore, find it
necessary to refer to the two reports.
The result of the above analysis of the provisions which have
been successfully challenged discloses that that High Court was
right in its appreciation of the true position in the light of the Constitution. We agree with the High Court that sub-ss. (2) and (4)
of ss. 48 and 49 are ultra vires Art. 30(1). Indeed we tl:!ink that
sub-ss. ( 6) of these two sections are also ultra vires. They offend
more than the other two of which they are a part and parcel. We
also agree that sub-ss. (1), (2), (3) and (9) of s. 53, sub-ss. (2) and
( 4) of s. 56 are ultra vlres as they fail with ss. 48 and 49. We express no opinion regarding these sub-sections vis-a-vis Art. 30(1).
We also agree that Section 58 (in so far as it re1noves disqualification which the found~rs may not like to agree to) and Sec. 63 are
ultra vires Articles 30 ( 1) in respect of the minority institutions.
The High Court has held that the provisions (Ex~ept s. 63) are
also offensive to Art. 19(1 )(f) in so far as the petitioners are citirens
of India both in resoect of maioriiv as well as minority institutions.
This was at first debated at least in so far as majority institu•ions
were concerned.
The maiority institutions invoked Art. 14 and
comnlained of discrimination.
However, at a later stage of proceedings Mr. Mohan Kumaramangalam stakd that he had instructions to sav that anv nrovi•ion held inennlicsble to minority
institution, would not be enforced against the majority institutions
al•o. Hence it ,.,,lieve• u• ,.,f the, ta•l<: of cnnoinering the matter
under Art. 19(l)(f) not only in respect of minority institutions
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but in respect ot majority institutions also.
The provisions of
s. 63 affect both kinds of institutions alike and must be declared
ultra vires in respect of both.
The result is that the Judgment under appeal is upheld. The
appeals of the State Government of Kerala and of the University
are dismissed with.costs. One set of hearing fees. For the reasons
given by the High Court we do not accept the contentions of the
sevr.li appellants who have challenged some of the other provisions ot the Act except ss. 48 (6) and 49(6) and do riot consider
it necessary to repeat what is said by the High Court. These appeals
are dismissed except as to those sectioris but without costs.
R.K.P.S.
Appeals dismissed.