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C/M METHODIST GIRLS' INTERMEDIATE COLLEGE & OTHERS versus STATE OF U.P. THRU' SECY. & OTHERS

High Court of Judicature at Allahabad

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C/M Methodist Girls' Intermediate College & Others v. State Of U.P. Thru' Secy. & Others - WRIT - C No. 17214 of 2005 [2007] RD-AH 12429 (20 July 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ Petition No. 17214 of 2005

Committee of Management Methodist Girls

Inter College through its Manager

Smt. Roop Chandi Mani    ... ... ... ... . Petitioner

Versus

State of U.P. and others   ... ... ...   ... Respondents

-----------

Hon'ble Janardan Sahai, J

The Methodist Girls Inter College, Moradabad is a Christian minority institution governed by the provisions of U.P. Intermediate Education Act.  It has a scheme of administration which was approved by the Director of Education in the year 1984. The institution is managed by a committee of management, the constitution of which is provided in Section III of the scheme of administration.  It consists of three categories of members -  (A) Ex-Officio members consisting of the Bishop of the area, the Chairman of the Board of Education and Christian Nurture of the Conference  concerned or a representative of the Board, the District Superintendent, the Pastor of the Church, the Manager of the institution, the Principal of the institution, the staff representatives as prescribed by the Regulations, the Central Treasurer/Conference Treasurer (any one of the two) and the Associate Education Secretary of the Council of Christian Education and Christian Nurture, (B) Nominated Members consisting of -  two members nominated by the Bishop (women member for Girls institution), two nominees of the Conference Finance Committee and one nominee of the Regional/Women's Conference and (C) Elected Members in which  one parent representative by the committee of Management is included. There is a note to this provision to the effect that the members of the Committee of Management under (B) and (C) shall be nominated or elected annually.    

The Committee of Management works under the supervision and control of the governing body. The constitution of the Governing Body is provided under Section II of the scheme of administration and it consists of the Bishop of the Methodist Church, the President of the Boards of Education and Christian Nurture of the Conference concerned, two elected representatives (one man and one woman) of each Conference Board of Education and Christian Nurture, Conference Treasurers of the Conferences concerned, the Central Treasurer of the Methodist Church in India and the Educational Secretary of the Council of Christian Education of the Methodist Church in India.  Sub clause v (ii) of Section II of the scheme of administration provides that governing body of the Methodist Educational Service shall provide uniformity in administration and services within the policies and dictates of the Regional Conferences.  The Manager of the institution is appointed by the Bishop under sub clause VIII, Section V of the scheme of administration.

One Smt. Sushma I Singh was appointed  as  Manager of the  institution by the Bishop but she was replaced. Thereafter Smt. Roop Chandi Mani, the petitioner no.2 was appointed by the Bishop as Manager. Smt. Sushma I Singh challenged the appointment of Smt. Roop Chandi Mani and the dispute was  referred to the Regional Committee of the three members headed by the Deputy Director of Education, Moradabad. The Regional Committee decided the dispute in favour of petitioner no.2. Smt. Roop Chandi Mani and found that Smt. Sushma I Singh was validly removed from the Managership. Smt. Sushma I Singh filed a writ petition no. 45266 of 2004 against the decision of the Regional Committee. The writ petition was allowed by order dated 17.11.2004 and the order of the Regional Committee dated 31.8.2004 was set aside and the Regional Level Committee was directed to decide the matter afresh on the following three issues:- (a) whether Smt. Sushma I Singh has been validly removed from the post of Manager or not; (b) whether Smt. Sushma I Singh is entitled to continue as the Manager of the institution or not and (c) whether the appointment  of Smt. Roop Chandi Mani, is strictly in accordance with the approved scheme of administration or not.   The Regional Level committee gave its finding on all the three issues in favour of Smt. Roop Chandi Mani, petitioner no.2 herein. It found that Smt. Sushma I Singh was validly removed and she was not continuing as Manager  and that Smt. Roop Chandi Mani was validly appointed as Manager. After deciding these three issues the Regional Level Committee went on to hold that the scheme of administration governing the institution was not democratic and that it does not provide for periodical election and that no elections had been held, the Bishop being the appointing authority of the Manager.   The Regional Committee held that in the year 1985  letters were sent to the Management of various institutions to adopt the model scheme of administration but the petitioner did not adopt the model scheme of administration. It was also found that the parent body of the institution was not registered in Uttar Pradesh but was registered in Bombay and in these circumstances there was no valid management. The Regional Committee therefore refused to recognize the management of the institution and directed that  a new scheme  of administration be got approved  and that elections be held according to the new approved scheme of administration and it directed the Area Bishop of the managing committee of the Methodist Church of India  to get the election held.  In view of these findings that the Committee of Management of the Methodist Girls Intermediate College, Moradabad had become ineffective  the Regional Level committee directed the payment of salary to teachers and employees of the institution through single operation of account to be done by the District Inspector of Schools, Moradadad. The petitioners have challenged the order dated 22.2.2005 of the Regional Committee.

I have heard Sri Kshitij Shailendra learned counsel for the petitioners and the Chief Standing Counsel  who appeared for the State.

Section 16 CC of the U.P. Intermediate Education Act 1921 provides that the scheme of administration of every institution shall not be inconsistent with the principles laid down in the Third Schedule of the Act. Section 16 CCC of the Act provides that if the scheme of administration of the institution is inconsistent with the provisions of the Act, the Director shall send, within a period of three years from such commencement, a notice to such institution suggesting  any alteration or modification therein and requiring the institution to submit a fresh scheme of administration or to amend or alter the existing scheme.   The Third Schedule lays  down the principles for grant of approval to a scheme of administration. Condition Nos. 2 and 3 of the Third Schedule  are relevant for the purpose of this case. They  are quoted below:-

"Every scheme of Administration shall

(1) xxx xxx xxx

(2) provide for the procedure for constituting the committee of management of periodical elections;

(3) provide for the qualifications and disqualifications of the members and office-bearers  of the committee of Management and the term of their offices;

provided that no such Scheme shall contain provisions  creating monopoly in favour of any particular person, caste, creed  or family."

The question is whether the scheme of administration of a minority institution must provide for periodical election and whether the model scheme of administration can be thrust upon a minority institution.

Article 30 of the Constitution of India gives right to a religious or linguistic minority to establish and administer educational institutions of their choice. This provision has been interpreted in a series of decisions of the Apex Court. The scope of the provision has been considered exhaustively in the 11 Judges Constitution Bench of the Apex Court in TMA Pai Foundation Vs. State of Karnataka case [Judgement Today 2002 (9) SC 1]. In that case the Apex Court has reviewed all the earlier land mark decisions on the rights of minorities to establish and administer educational institutions.  

In The Ahmedabad St Xaviers College Society and Another etc Vs. State of Gujarat & Another [1975 (1) SCR 173. Hon'ble Ray, C.J. at page 194 observed that:-

  ". The right to administer is said to consist of four principal matters. First is the right to choose its managing or governing body. It is said that the founders of the minority institution have faith and confidence in their own committee or body consisting of persons selected by them. Second is the right to choose its teachers. It is said that minority institutions want teachers to have compatibility with the ideals, aims and aspirations of the institution. Third is the right not to be compelled to refuse admission to students. In other words, the minority institutions want to have the right to admit students of their choice subject to reasonable regulations about academic qualifications. Fourth is the right to use its properties and assets for the benefit of its own institution."

In State of Kerala Etc Vs. Very Rev. Mother Provincial Etc [(1971) 1 SCR 734] the challenge was to various provisions of the Kerala University Act, 1979 whose provisions affected private colleges, particularly those founded by minority communities in the State of Kerala.  The said provisions, inter alia, sought to provide for the manner in which private colleges were to be administered through the constitution of the governing body or managing councils in the manner provided by the Act.  The Apex Court held that:- "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 the ideals of how the interest 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 an any other body without an encroachment upon the guaranteed right."  However, it was held by the Apex Court that  right under Article 30 was subject to the power of the state to regulate education, educational standard and allied matters and the minority institutions could not be allowed to fall below the standards of excellence expected of educational institutions, or under the guise of the exclusive right of management, allowed to decline to follow general pattern. The Court stated that while the management must be left to the minority, they may be compelled to keep in step with others .

In DAV College Vs. State of Punjab and others [1971 (Supp. SCR 688] clause 2(1), and 17 of the Statutes of the Guru Nanak University Act was challenged.  Clause 2 (1) (a) provided that for seeking affiliation, the college was to have a governing body of not more than 20 persons approved by the senate and including amongst others, two representatives of the University and the Principal of the college. Clause 17 required the approval of he Vice-Chancellor for the staff initially appointed by the college. It was held that these clauses of the Statutes interfered with the rights of the management of the minority educational institutions and could not therefore be made conditions of affiliation.  These provisions were struck down as offending Article 30 (1).

It was held in TMA Pai Foundation case (Supra) that restriction in national interest or for maintaining the excellence in academic standard can be imposed. It has also been consistently held by the Apex Court that minority institutions would have to abide by the labour laws, building regulations and other laws relating to health, hygiene etc.

The model scheme of administration makes it open to any person who is willing to pay enrolment fees to become a member. It provides for periodical election to the committee of management. The model scheme of administration is totally different from the scheme of administration  of the Institution approved in the year 1984. The Constitution of the Committee of Management of the institution under the scheme of administration approved in 1984 provides for inclusion of officers of the Church such as the Bishop and the Pastor. The right to chose its managing or governing body is one of the four principal rights included in the right to administer an educational institution. If the model scheme of administration is thrust upon the institution the very structure of the management of the institution which the minority has adopted would change. The connection between the Methodist Church (which is the supreme authority in all matters concerning the education institution under Para VIII of Section II of the approved scheme) and the Institution would be altogether separated. It is to be noted that Christian Schools run by the Missionaries have maintained over the years a connection between the Church and the management of the institution.  Imposition of the model scheme of administration would amount to destroying the minority character of the institution as it takes away the  right of the minority to have a management of its choice. It is to be noted that in this case it is the State (The Regional Committee in a dispute raised by removed Manager) and not the minority community which is seeking to get the scheme changed.

Para 2 of the III Schedule relating to the principles to be considered for grant of approval to the scheme of administration requires that the scheme ought to contain provision for periodical elections and the proviso to para 3 mandates that no scheme shall contain provisions "creating monopoly in favour of any particular person, caste, creed or family". The proviso was amended to its  present form by UP Act IX of 1981. Originally the proviso also contained a bar against creating monopoly in favour of any 'religion'. The word 'religion' was deleted from the proviso by the aforesaid amendment. But the word 'creed' has a similar meaning. The meaning of  'creed' in The New Shorter Oxford English Dictionary (Vol. I) is:-

"Creed: 1. A brief formal summary of Christian doctrine, esp. each of those known as the (Apostles) Creed, the Athanasian Creed, and the Nieene Creed.

2. A repetition of the Creed as an act of devotion, esp. as part of the Mass

3. A system of religious belief

4. A set of opinions or principles on any subject; esp. a political philosophy

5. Belief or confidence in; an article of faith

The question is whether the requirement for periodical election in the scheme or  the principles in the III Schedule apply to a minority institution. Article 29 gives right to a minority to conserve its language, script or culture. In re the Kerala Education Bill AIR 1958 SC 956 = 1959 SCR 995 the apex court considered the relationship between Articles 29 and 30. The purpose of Article 29 (1) it was held was to enable the minority to conserve its own language, script or culture which could be achieved through educational institutions and therefore the right under Article 30 to establish educational institutions of its choice is a necessary concomitant to the rights of the minority to conserve its language, script and culture. In State of Kerala Vs. Mother Provincial (supra) it was held that the management of a minority institution must be free of control so that the founders can mould the institution as they think fit and in accordance with the ideals of how the interest of the community can be best fulfilled. No part of the management can be taken away and vested in any other body without encroachment upon the right. It follows from this pronouncement of the law that if the founders of a minority  institution believe that the interest of the community can be better sub-served by having a management consisting of members of the minority community alone they may so provide. A minority institution can therefore have a scheme of administration containing a provision creating a monopoly in favour of the members of the minority community in the managing body of the institution. It also appears that if the founders are of the view that holding of periodical elections to the management would not be in the interest of the minority community they may provide for any other manner of constituting the management. The minority may provide in the scheme that the post of Manager be filled up by nomination.  If therefore the provision of Schedule III prohibiting a monopoly in favour of any creed or of periodical election is held to be applicable to a minority institution the provision  would be ultra vies Article 30. To save these provisions  from invalidation they have to be read down as not being applicable to a minority institution.  It may be noted that under the scheme of administration approved in 1984  the nomination or election of members other than Ex-officio members is made annually.  This is a sufficient  safeguard in the scheme against creation of a monopoly of any person or group of persons in the management.

The matter can be examined from another angle. If the scheme of administration is inconsistent with the provisions of the Act and the management of the institution  has failed to alter or modify it despite notice under Section 16 CCC the consequences contemplated under the Act are that the Director may under Section 16 D (3) refer the case to the Board for withdrawal of recognition or after issuing notice under Section 16 D (4) to the committee of management appoint an authorized controller. Section 16 D (14) however exempts a minority institution from the application of sub sections 3 to 13 of Section 16-D which is an indication though not conclusive that under the scheme of the provisions, Section 16 CCC was not intended to apply to a minority institution.  

From the mandate of Article 30 that a minority has a right to administer its institutions  and the scheme of the Act it appears that the provision in the III schedule relating to periodical elections and bar against monopoly in favour of any creed is not applicable to minority institutions. There is nothing to show that the provision under the scheme empowering the Bishop to nominate the manager and the other provisions of the approved scheme would affect efficiency in running the institution.  

It is submitted on behalf of the State that as the institution is getting grant-in-aid it has to follow the regulatory provisions and it is open to the State to require the  minority institution to insist that the scheme of administration is  consistent with the provisions of Schedule III of the Act. The question regarding the degree of  interference in an aided minority institution has been considered in TMA Pai Foundation case (supra)  and it was held by the Apex Court  that grant of aid under Article 30 (2) cannot be used as a lever to  to take away the rights of minority under Article 30 (1). The State cannot in the name of grant in aid take away the minority  character of the institution.

It has also been found by the Regional Committee that the parent body of the Society is registered in Bombay and not in Uttar Pradesh. Learned Chief Standing Counsel supported the order of the Regional Committee on this ground also.  No provision however was cited whereunder  registration of the society in U.P. may be necessary  Reliance has been placed upon the provisions of Para 293 of the Education Code . All that is required thereunder is that the parent body/governing body must be registered under the Societies Registration Act, 1860. The view taken by the Regional committee on this point therefore is also erroneous.  

There is another aspect of the case. This court by its order dated 17.11.2004 in writ petition no. 45266 of 2004 had sent the case to the Regional Committee for a fresh decision on  three points formulated by the court. These three questions have been decided in favour the petitioner No.2. The question whether approved scheme was inconsistent with the Act or not was not  one of the questions on which the matter had been remanded. Rather the court had directed the Regional committee to examine whether appointment of Roop Chandi Mani was in accordance with the approved scheme of administration The order of the Regional Committee that the scheme was not democratic and that the management cannot be recognized, as the parent body of the Society is registered in Bombay, was beyond the directions of this court and the order of the Regional committee directing a fresh scheme of administration to be got approved and for holding fresh election is beyond the scope of the remand order and is therefore unsustainable.

The writ petition is allowed. The operative portion of the order of the Regional Level Committee dated 22.2.2005 de recognizing the management and directing that fresh scheme of administration be got approved and for holding elections in accordance therewith and authorizing the District Inspector of Schools for single operation of accounts is set aside.

Dt. 20.7.2007

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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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