Advanced Search Search Tips
View Complete document
Lilly Kurian vs Sr. Lewina And Ors on 15 September, 1978
Showing the contexts in which minority institution appears in the document
Change context size
Current

Learned counsel for the interveners contends that the interposition of an outside authority like the Vice- Chancellor, demits the entire disciplinary power of a minority educational institution to the Vice-Chancellor. Under Ordinance 33(4) the Vice-Chancellor has the power to veto its disciplinary control. There is complete interference with the disciplinary power of the minority institution. The State may 'regulate' the exercise of the right of administration, but it has no power to impose any 'restriction' which is destructive of the right itself. In matters relating to discipline, the process of decision must be left to the institution. There is direct interference with this right. The post of principal is of pivotal importance in the life of a college, around whom wheels the tone and temper of the institution, on whom depends the continuity of its traditions, maintenance of discipline and the efficiency of its teaching. The character of the institution depends on the right choice of the principal by the management. The right to choose the principal is perhaps the most important facet of the right to administer a college. In the same way, the right to dispense with the services of the principal is an equally important facet of the same right. The imposition of any trammel, thereon, except to the extent of prescribing the requisite qualifications and the experience or otherwise fostering the interests of the institution itself, cannot but be considered as a violation of the right warranted under Article 30(1).

In Rev. Sidhajbhai Sabhai v. State of Bombay, Shah J. (as he then was) speaking for the Court, negatived an argument advanced on 835 behalf of the State that a law could not be deemed to be unreasonable unless it was totally destructive or annihilative of the right under Article 30(1), stating:

"The right established by Art. 30(1) is a fundamental right declared in terms absolute. Unlike the fundamental freedoms guaranteed by Art. 19, it is not subject to reasonable restrictions. It is intended to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their own choice. The right is intended to be effective and is not to be whittled down by so-called regulative measures conceived in the interest not of the minority educational institution, but of the public or the nation as a whole. If every order which while maintaining the formal character of a minority institution destroys the power of administration is held justifiable because it is in the public or national interest, though not in its interest as an educational institution, the right guaranteed by Art. 30(1) will be but a 'teasing illusion', a promise of unreality." The learned Judge then went on to say:

The conferment of a right of appeal to an outside authority like the Vice-Chancellor under Ordinance 33(4) takes away the disciplinary power of a minority educational authority. The Vice-Chancellor has the power to veto its disciplinary control. There is a clear interference with the disciplinary power of the minority institution. The State may 'regulate' the exercise of the right of administration but it has no power to impose any 'restriction' which is destructive of the right itself. The conferment of such wide powers on the Vice-Chancellor amounts in reality, to a fetter on the right of administration under Article 30(1). This, it seems to us, would so affect the disciplinary control of a minority educational institution as to be subversive of its constitutional rights and can hardly be regarded as a 'regulation' or a 'restriction' in the interest of the institution.

843

(ii) to (v) of Ordinance 33(2); that is to say, he can even interfere against the infliction of minor punishments. In the absence of any guidelines, it cannot be held that the power of the Vice-Chancellor under ordinance 33(4) was merely a check on maladministration.

As laid down by the majority in St. Xaviers College's case (supra), such a blanket power directly interferes with the disciplinary control of the managing body of a minority education institution over its teachers. The majority decision in St. Xaviers College's case squarely applies to the facts of the present case and accordingly it must be held that the impugned Ordinance 33(4) of the University of Kerala is violative of Article 30(1) of the Constitution. If the conferment of such power on an outside authority like the Vice-Chancellor, which while maintaining the formal character of a minority institution destroys the power of administration, that is, its disciplinary control, is held justifiable because it is in the public and national interest, though not in its interest as an educational institution, the right guaranteed by Article 30(1) will be, to use the well-known expression, a 'testing illusion', a 'promise of unreality'.