Writ Petition (LG.) No. 76 of 2012

21st February, 2012

Petitioner Counsel: Mr. ARVIND KOTHARI
Respondent Counsel: Mr. RUI RODRIGUES Mr. JASBIR SALUJA

Cases Cited:
TMA Pai Vs. State of Karnataka, (2002) 8 SCC 481 [Para 14,17]
P.A. Inamdar Vs. State of Maharashtra, 2005(5) ALL MR 1030 (S.C.) =(2005) 6 SCC 537 [Para 14]
Secy., Malankara Syrian Catholic College Vs. T. Jose & Ors., 2007(2) ALL MR 949 (S.C.) =(2007) 1 SCC 386 [Para 17,24]

JUDGMENT

A.M. KHANWILKAR, J. :- Heard the counsel for the parties.

2. Rule. Respondents waive notice. Rule is made returnable forthwith by consent.

3. As short question is involved, petition is taken up for final disposal forthwith by consent.

4. This writ petition under Article 226 of the Constitution of India is to challenge the State Government Resolution dated 13th October, 2011 and the Circular issued by the Mumbai University dated 8th November, 2011, as well as the consequential communication issued under the signature of Deputy Registrar (Concol Unit) of University of Mumbai vide letter dated 6th January, 2012 rejecting the petitioners' request to grant approval to the appointment of Dr. Ashok G. Wadia as an Incharge Principal of the college.

5. The petitioners assert that petitioner No. 1 was established on 8th July, 1948 by Sindhi speaking Trustees (linguistic minority in the State of Maharashtra). The college run by petitioner No. 1-Association has been recognised as minority institution. Therefore, the Managing Board of petitioner No.1 resolved to appoint an employee of the college as Incharge Principal against the outgoing Principal of the college, Dr. Kirti Narain, who was due to retire on 30th November, 2011. The Managing Board of petitioner No. 1, in its meeting held on 8th July, 2011, resolved to appoint Mrs. Firdaus J. Mistry, Msc, Mphil, Senior Vice Principal, as Incharge Principal of the college with effect from 1st December, 2011 till a regular Principal was appointed. The post of Principal held by Dr. Kirti Narain fell vacant in earlier point of time due to the incumbent having undergone major surgery. The said Dr. Kirti Narain expressed her desire to retire on 15th December, 2011 on health ground. As a result, the Managing Board of petitioner No. 1, in its meeting held on 25th August, 2011, resolved to appoint Mrs. Firdaus J. Mistry, Senior Vice Principal since 2003, as the Incharge Principal of the college with effect from 17th October, 2011. The appointment letter to that effect was issued on 29th September, 2011 to Mrs. F.J. Mistry. Similarly, letter dated 5th October, 2011 was issued to Mrs. F.J. Mistry for taking over the charge from Dr. Kirti Narain. The petitioners informed the development about appointment of Mrs. F.J. Mistry as Incharge Principal of the college with effect from 17th October, 2011 to the Respondents.

6. The petitioners assert that they had applied for and received necessary no objection certificate from the Joint Director of Education for filling up the post of Principal. It is the case of the petitioners that, after receiving intimation about the appointment of Mrs. F.J. Mistry as Incharge Principal of the college, the State Government, with undue haste and without authority of law, issued Government Resolution dated 13th October, 2011, inter alia, providing for appointment to the post of Incharge Principal only from amongst the qualified senior-most teachers. Not only that, the Government Resolution was delivered by hand delivery in the petitioners' office within less than 24 hours by the Joint Director of Education vide letter dated 14th October, 2011, which, according to the petitioners, was unprecedented move of the State Authorities, for reasons best known to them. On the basis of the said Government Resolution, the University of Mumbai issued circular on 8th November, 2011 to the effect that, if the Principal's post in the college is vacant and if additional charge of the said post is to be given, it should be in accordance with the Government Resolution dated 13th October, 2011.

7. The petitioners were surprised to receive communication from the respondent dated 1st November, 2011 that the approval to the appointment of Mrs. F.J. Mistry as an Incharge Principal cannot be considered in the light of University Circular dated 14th February, 1990, as she was not the senior-most teacher in the college. The petitioners replied to the respondents vide letter dated 8th November, 2011 pointing out that the refusal of approval to the appointment of Mrs. F.J. Mistry as Incharge Principal was illegal and violative of the petitioners' minority rights under Article 30(1) of the Constitution of India and also contrary to the respondents' own University Circular dated 14th February, 1990. The petitioners also made representation to the respondents through their advocate's letter dated 25th November, 2011.

8. Since the petitioners apprehended that non-approval to the appointment of Mr. F.J. Mistry as an Incharge Principal of petitioner No. 2-college would adversely affect the issuance of salary bills and release of salary to nearly 140 staff members, the petitioners were left with no other choice and were compelled to appoint another senior teacher of the college, Dr. Ashok Wadia, as Incharge Principal with effect from 26th November, 2011 vide Managing Board's Resolution dated 24th November, 2011. The petitioners, accordingly, issued appointment letter dated 25th November, 2011 in favour of Dr. Ashok Wadia as an Incharge Principal without prejudice to the petitioners' rights and contentions, including the right to file writ petition in this Court about violation of constitutional rights guaranteed to the minority institution under Article 30(1) of the Constitution of India, which includes right to appoint person of their choice as an Incharge Principal and not necessarily senior-most member of the staff.

9. The Deputy Registrar (Concol Unit), vide letter dated 6th January, 2012, informed the Executive Secretary of the petitioners that the appointment of Dr. Ashok Wadia as an Incharge Principal of petitioner No.2-college cannot be considered, being opposed to University of Mumbai Circular dated 8th November, 2011, as he is not the senior-most teacher in the college.

10. The petitioners assert that, even though the said Dr. Ashok Wadia was not the senior-most teacher in the college, however, the Management found him to be most suitable to act as head of the institution. Further, it was only a stop-gap arrangement till the regular Principal was appointed after following the necessary formalities. According to the petitioners, the process of appointing regular Principal has already been commenced, and is likely to be concluded before May, 2012.

11. The petitioners, by this petition, have not only challenged the authority of the University to issue circular, which has the effect of interfering with the rights of the minority institution guaranteed under Article 30 of the Constitution of India, but also the authority of the State Government to issue Government Resolution on the same subject. Admittedly, there is no express provision in the Maharashtra Universities Act, 1994 (hereinafter referred to as "the Act") or any of the statutory Rules framed thereunder or, for that matter, in the Statutes and Ordinances issued by Mumbai University, which specify the conditions to be fulfilled for appointment of an Incharge Principal of the minority institution. According to the petitioners, it is well-established position that there is complete freedom to the minority institution to choose a person as Principal of the minority institution. That right has always been recognised as a vital facet of the right to administer the educational institution. If so, neither the University nor the State Government could regulate the said right of the minority institution. For the same reason, the minority institution has complete freedom to appoint a person of their choice as Incharge Principal of their institution. In that, even the Incharge Principal of the institution discharges the same duties and responsibilities for the functional efficiency of the institution, as also the quality of education and discipline in the institution, but also maintains the philosophy and objects of the institution as in the case of a regular Principal or Head Master of an educational institution.

12. Accordingly, the petitioners have approached this Court not only to challenge the Government Resolution issued by the State Government dated 13th October, 2011, but also the consequential Circular issued by the University of Mumbai dated 8th November, 2011, and in particular, the communication dated 6th January, 2012 issued under the signature of Deputy Registrar (Concol Unit), University of Mumbai, for not approving the appointment of Dr. Ashok Wadia as an Incharge Principal of the college on the ground that his appointment is not in conformity with the University Circular dated 8th November, 2011, as he is not the senior-most teacher in the college.

13. This petition is resisted by the respondents. The Section Officer, Higher & Technical Education Department, Government of Maharashtra, has filed affidavit. The sum and substance of the stand taken in the affidavit is that, where the vacancy in the post of Principal is required to be filled up temporarily, it is to be filled by giving additional charge, on a temporary basis, to the senior-most teacher, who fulfils the qualification prescribed for the post of Principal. Such stipulation in the Government Resolution is not only a measure to ensure the standard of excellence of the institution, but also fulfils the objective of preserving the right of the minority to establish and administer its educational institution.

14. According to the State Authorities, the requirement specified in the impugned Government Resolution would satisfy the four tests, i.e., (1) the test of reasonableness and rationality; (2) the test that the regulation must be conducive to making the institution an effective vehicle of education for the minority community or other persons, who risk to do; (3) it is directed towards maintaining excellence of education and efficiency of administration so as to prevent the institution from falling in standard; and (4) there is no inroad into the protection conferred under Article 30(1) of the Constitution. According to the State Authorities, the stipulation prescribed was not to interfere with the dayto- day administration but essentially for prescribing service conditions of the teachers. The learned A.G.P. is relying on the decision of the Apex Court in TMA Pai v. State of Karnataka, reported in (2002) 8 SCC 481, and another decision in the case of P.A. Inamdar v. State of Maharashtra, reported in (2005) 6 SCC 537 : [2005(5) ALL MR 1030 (S.C.)].

15. The University has supported the stand of the State Authorities that the State Government was competent to issue Government Resolution to deal with the subject, which was not covered by any express provision in the Act or Statute or Ordinance issued by the University. According to the learned counsel for the University, the Circular issued by Mumbai University on 14th February, 1990 was issued in exercise of powers under the old enactment, which has been repealed by the Maharashtra Universities Act, 1994. The said Circular had no effect after the enactment and coming into force of the Act of 1994.

16. It is then contended by the University that the State Government was justified in issuing Government Resolution on the subject in exercise of powers under Section 5(60), read with Section 5(49) of the Act of 1994. Section 5(49) provides that the University shall have the power and duty to lay down for teachers and university teachers, service conditions, including code of conduct, workload, norms of performance appraisal, and such other instructions or directions as, in the opinion of the University, may be necessary in academic matters. The authority to issue Government Resolution dated 13th October, 2011 by the State Government can be ascribed to Section 5(60) of the Act of 1994. The State Government has been issuing directives from time to time to the University concerned to comply with and carry out the same with reference to the powers, duties and responsibilities of the University referred to in sub-sections (1) to (59) of Section 5 of the Act of 1994. It is, thus, submitted that the University was under obligation to issue Circular dated 8th November, 2011 to restate the directive issued by the State Government in respect of appointment of Incharge Principal. Further, the petitioners were obliged to comply with the said requirement and appoint senior-most qualified teacher as Incharge Principal, until the formalities for filling up the post of Principal on regular basis were completed.

17. After having considered the rival submission, we will proceed to answer the first question that has been posed for our consideration. The question is: Whether the right to choose an Incharge Principal is part of the right of minorities under Article 30(1) of the Constitution to establish and administer educational institutions of their choice? The right to choose a Principal is or is not part of the right of minorities under Article 30(1) of the Constitution of India to establish and administer educational institutions is no more res integra. That question has been answered by the Apex Court on more than one occasion. The latest judgment of the Apex Court on point is in the case of Secy., Malankara Syrian Catholic College v. T. Jose & Ors., reported in (2007) 1 SCC 386 : [2007(2) ALL MR 949 (S.C.)]. That was the specific question posed by the Apex Court as Question No. (ii), as can be discerned from paragraph 12 of the judgment. The Apex Court noted that the Principal or Head Master of an educational institution is responsible for the functional efficiency of the institution, as also the quality of education and discipline in the institution. He is also responsible for maintaining the philosophy and objects of the institution. After having said this, the Court proceeded to analyse the series of judgments on the point, and, in paragraph 27 of the reported judgment, concluded that it is thus clear that the freedom to choose the person to be appointed as Principal has always been recognised as a vital facet of the right to administer the educational institution. It went on to observe that this position has not been, in any way, diluted or altered by T.M.A. Pai. The Court further noted that, having regard to the key role played by the Principal in the management and administration of the educational institution, there can be no doubt that the right to choose the Principal is an important part of the right of administration and even if the institution is aided, there can be no interference with the said right. Further, the fact that the post of the Principal / Head Master is also covered by State aid will make no difference.

18. The next question is: Whether the duties and responsibilities of the Incharge Principal or Head Master of the minority educational institution can be equated with that of the permanent or regular Principal or Head Master of the minority educational institution? The fact that the appointment is as an Incharge Principal or Head Master of a minority educational institution - it is no less, as the incumbent is expected to discharge the same duties and responsibilities as that of a regular or permanent Principal. Further, in absence of any express provision in the Act or any statutory Rules, Statutes or Ordinances limiting the responsibilities and duties of the Incharge Principal or Head Master of any educational institution brought to our notice, it would necessarily follow that the Incharge Principal or Head Master has to discharge the same duties and responsibilities as of a permanent or regular Principal or Head Master of the educational institution; and, in the process, is responsible for the functional efficiency of the institution, as also the quality of education and discipline in the institution, and - not the least - maintaining the philosophy and objects of the institution. The concomitant of this finding is that the management of a minority educational institution has freedom to choose the person to be appointed as Incharge Principal being a vital facet of the right to administer the educational institution, even if the institution is aided or otherwise. Thus, the regime of appointing the senior-most qualified teacher from the college as Incharge Principal will have no application to minority educational institutions. This is precisely what the University Circular dated 14th February, 1990 has provided for. It clearly envisages that the direction requiring filling up the vacancy of Principal by appointing Incharge Principal from amongst the senior-most teachers will have no application to the colleges established and administered by minority institution covered under Article 30(1) of the Constitution of India.

19. The argument of the counsel for the University that the University Circular dated 14th February, 1990 has ceased to have any force after the repeal of the Bombay University Act, 1974, to say the least, is ill-advised. For, Section 115 of the Act of 1994, in particular clause (xv) of sub-section (2) thereof, plainly saves the said circular, notwithstanding the repeal of the Act of 1974. In that, it contemplates that all notices and orders made or issued by any Authority under the Act of 1974 shall, insofar as they are not inconsistent with the provisions of the Act of 1994, continue to be in force and are deemed to have been made or issued by the corresponding Authority, until the same are superseded or modified under the Act of 1994. As aforesaid, there is no express provision in the Act of 1994 governing the subject of appointment of Incharge Principal or Head Master of educational institution, much less minority educational institution. If so, the Circular issued on 14th February, 1990 has been saved by virtue of Section 115 (2) (xv) of the Act of 1994 not being inconsistent with the provisions of that Act.

20. What is significant to note is that the Circular issued by Mumbai University on 8th November, 2011 makes reference to the University Circular dated 14th February, 1990. Thus, by reference, the said Circular, and more particularly, the exception provided therein of inapplicability of the condition for filling in the vacancy of Principal by appointing the seniormost qualified teacher as an Incharge Principal of the minority educational institution gets incorporated. Indeed, the University Circular dated 8th November, 2011 has been issued as a consequence of Government Resolution dated 13th October, 2011. This Circular merely restates the position that the vacant post of Principal should be filled in the manner specified in the Government Resolution dated 13th October, 2011.

21. We may, therefore, straightaway turn to the conditions specified in Government Resolution dated 13th October, 2011. Notably, this Circular has been issued to regulate the appointment process as Incharge Principal of educational institution generally, and not in the context of minority educational institution as such. Assuming that the conditions specified therein are intended to provide for minimum qualifications, experience and other criteria bearing on merit for making appointment or providing for service conditions of employees, however, to the extent of Condition No. (2), that the charge of Principal should be given according to seniority of the teachers inevitably affects the constitutional right guaranteed to the minority educational institution under Article 30(1) of the Constitution of India. That condition may apply to other educational institutions, but not to minority educational institution. We have alluded to the exposition of the Apex Court in the case of Secy., Malankara Syrian Catholic College. In that case, Section 57(3) of the Kerala University Act, 1974 which provided that the post of Principal, when filled by promotion, is to be made on the basis of seniority-cum-fitness was considered. The Apex Court opined that the said provision cannot be applied to minority run educational institutions, even if they are aided. Applying the same analogy, it will have to be held that Condition No. (2) in the Government Resolution dated 13th October, 2011 cannot apply to minority-run educational institutions, such as the petitioners before us.

22. We, however, make it clear that we are not testing the applicability of other conditions specified in the said Government Resolution, and have confined only to examining the sweep of Condition No. (2), which requires that only senior-most qualified teacher must be appointed as Incharge Principal of the educational institution. As regards other conditions referred to in the said Resolution, the same relate to subject of qualifications to be possessed by the incumbent. In the present case, the University has disapproved the appointment of Dr. Ashok G. Wadia as Incharge Principal of petitioner No.2-college only on the ground that he is not the senior-most teacher in the college. Hence, it is not necessary for us to examine the efficacy of other conditions of the said Government Resolution dated 13th October, 2011.

23. Considering the above, it is not necessary for us to examine the wider issues raised by the petitioners about the authority of the State Government to issue Government Resolution on matters not specifically provided for in the Act or the Rules or, for that matter, Statutes or Ordinances qua the minority institutions, nor is it necessary for us to examine the question whether the University was right in issuing Circular dated 8th November, 2011. Suffice it to observe that Condition No. (2) specified in the Government Resolution dated 13th October, 2011 to the effect that only senior-most qualified teacher should be posted as Incharge Principal of the educational institution has no application to the minority educational institutions.

24. Resultantly, even the University Circular dated 8th November, 2011 will have no application to minority educational institutions as regards the condition of appointing senior-most qualified teacher as the Incharge Principal. Indeed, if the Government Resolution or the University Circular were to provide for some outer limit within which the process for appointing a permanent or regular Principal must be completed by the minority educational institution, so as to obviate the appointment of unqualified teacher for a prolonged period, that may be legitimate. However, we do not wish to answer that aspect of the matter. Similarly, since the Apex Court in the case of Secy., Malankara S.C. College [2007(2) ALL MR 949 (S.C.)] (supra) has already noticed and analysed the two decisions pressed into service by the learned A.G.P., it is not necessary for us to dilate on the said decisions.

25. A fortiori, the impugned decision of the Deputy Registrar (Concol Unit), University of Mumbai, dated 6th January, 2012 will have to be set aside, as it proceeds on the erroneous premise that the appointment of Dr. Ashok Wadia as Incharge Principal was not in conformity with University Circular dated 8th November, 2011, since he was not the senior-most teacher in the college. On the other hand, we have no hesitation in holding that, since the petitioners are, admittedly, a minority educational institution, have freedom to choose a qualified person to be appointed as Incharge Principal, until the process for appointing a permanent or regular Principal of the Petitioner No. 2 College is completed.

26. Accordingly, communication issued under the signature of Deputy Registrar (Concol Unit), University of Mumbai, dated 6th January, 2012, Exhibit 'J', at page 97, is quashed and set aside. Instead, the said Authority is free to re-consider the proposal regarding appointment of Dr. Ashok Wadia as an Incharge Principal of petitioner No.2-college to ascertain whether the same complies with the other governing conditions, and, if satisfied about the same, grant approval to his appointment till completion of process of appointing permanent or regular Principal of petitioner No.2-college. The proposal be reconsidered within two weeks from today. Till such decision is taken, Dr. Ashok G. Wadia be allowed to discharge duties, powers and functions and enjoy privileges as Incharge Principal of petitioner No.2- college; further, the salary bills of the staff of the petitioner No.2- college signed by Dr. Ashok G. Wadia as Incharge Principal be accepted, and the salary of the staff be released in due course.

27. The Rule is made absolute on the above terms. No order as to costs.

28. At this stage, learned A.G.P. prays for stay of operation of this order. We reject this request, as the opinion recorded in this judgment is essentially founded on the decision of the Apex Court.

Petition allowed.