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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL   NO  .  1257 of 2017 (Arising out of SLP(C)No.38558 of 2012)

Mrs. Ivy C.da.Conceicao               ...Appellant VERSUS

State of Goa & Ors.                  ...Respondents J U D G M E N T

ADARSH KUMAR GOEL, J.

1. Leave  granted.  This  appeal  has  been  preferred

against  judgment  and  order  dated  14th August,  2012

passed by the High Court of Bombay at Goa in      Writ

Petition NO.542 of 2008.   

2. The  question  for  consideration  is  whether  the

process  of  appointment  of  a  principal  in  minority

institution  is  open  to  judicial  review  and  on  what

grounds.   

3. The case of the appellant is that she is a Grade-I

teacher, teaching Economics in Rosary Higher Secondary

School,  Navelim,  Salcete,  Goa,  run  by  respondent

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No.3-Diocesan Society.  She had passed her B.A. (in

Economics  and  Commerce)  and  M.A.           (in

Economics) from Bombay University and also completed

her B.Ed.  She has been teaching for the last 21 years

in  the  school  run  by  respondent     No.3-Diocesan

Society.  Respondent No.3 receives aid for running the

school  under  the  provisions  of  Goa  School  Education

Act,  1984  (for  short,  “the  Act”)  and  Goa  School

Education Rules 1986 (for short, “the Rules”).  In the

seniority  list  of  teachers,  prepared  by  respondent

No.3-Society, the appellant is at serial No.16 while

respondent Nos.4 to 6 are at serial Nos.43, 35 and 28

respectively.  She is eligible and qualified for the

post of principal and the most competent person among

those available for the said post.  She was appointed

as  Incharge-Principal,  in  the  absence  of  regular

principal, from 7th March, 2005 and again from 5th May,

2005.                 She has no adverse remark in her

Confidential Reports.  On 1st April, 2005 a vacancy was

created for the post of principal on retirement of one

Sh. Edward Coutinho, the then Principal of         St.

Andrew's Higher Secondary School, Vasco.  Respondent

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No.3  sought  information  about  the  appellant  on  28th

July,  2008  and  again  a  vacancy  was  created  on  1st

August, 2008 for the post of Principal on retirement of

Smt. Nirmala Mesquita, Principal of Fr. Basilio Andrade

Memorial  Higher  Secondary  School,  Majorda,  Salcete,

Goa,  and  also  on  4th August,  2008  on  account  of

appointment  of  Sh.  Mervin  D'Souza  to  the  post  of

Chairman of Goa Board of Secondary and Higher Secondary

Education.   Vacancies  were  filled  up  by  promoting

respondent nos.4 and 5 in violation of Rules 74 and 86

of the Rules.  The said respondents were junior to the

appellant and were not in the zone of consideration.

Respondent No.6 who was, vide order dated 16th August,

2003, appointed to the post of Principal in Fr. Basilio

Andrade Memorial Higher Secondary School, Majorda, has

already been challenged by the appellant by way of Writ

Petition NO.236 of 2004 and which was still pending

when  the  said  respondent  was  again  appointed  as

Principal of St. Theresa's  Higher Secondary School,

Candolim,  on  15th June,  2007  on  availability  of  a

vacancy  and  the  claim  of  the  appellant  for

consideration against the post of Principal has been

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overlooked.   

4. Respondent No.3-Society contested the petition by

submitting that the school run by it was a “minority

institution”.  Claim of the appellant, for the post of

Principal, was duly considered and in exercise of its

right under Article 30 of the Constitution of India, it

selected the most suitable candidate.  There was, thus,

no  violation  of  Rules  74  and  86  of  the  Rules.

Respondent No.3 sought leave to produce the Minutes of

the D.P.C. to support its conduct.  Private respondents

also contested the petition.   

5. Relying upon the judgment of this Court in  Secy.

Malankara  Syrian  Catholic  College v.  T.  Jose and

Others1.   The  High  Court  upheld  the  plea  of  the

respondents in the following terms :

“36.  … the minority educational institution is entitled  to  appoint  a  qualified  person  of  its choice  as  Principal,  subject  to  the  appointee having  educational qualifications  prescribed by the State Government and such a right cannot be taken away by Rules and Regulations.  In the case of  Manohar  Naik  (supra),  though  the  Division Bench allowed the appeal, the Apex Court upheld the right of minority educational institution in

1 (2007) 1 SCC 386

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Goa  to  appoint  a  qualified  teacher  having requisite qualification, serving in the State of Maharashtra,  in  a  school  run  by  minority educational institution as the headmaster of the school in Goa. Obviously, therefore, he could not have been considered by the DPC in terms of Rule 74(2) of the Rules nor he could be one of the eligible teachers in the school run by respondent no.3  Society  and  as  such,  Rule  86  was  not complied with.  Even in such factual background, the Apex Court has upheld the right of minority educational  institution  to  appoint  a  teacher having requisite qualification as a headmaster of its school.  In the present case, it is not the case of the petitioner that the respondents no.4 to 7 do not have minimum qualification for being appointed  as  Principals  of  the  school.   This being the position, in our considered opinion, the ratio of the judgments of the Apex Court in the above mentioned cases, is squarely applicable in the present case.  The necessary sequitur is that the challenge of the petitioner that DPC was not  properly  constituted  or  that  some  of  the appointees  do  not  come  within  the  zone  of consideration, are irrelevant for the purpose of deciding  the  issues  involved  in  the  present petition.  Therefore, in our considered view, no fault can be found with the action of respondent no.3 in appointing respondents no.4 to 7 as the Principals of the different schools run by it.”   

(Emphasis added)

6. The contention raised on behalf of the appellant is

that while the minority institution may be entitled to

appoint  a  qualified  person  of  its  choice  as

'principal', it is not open to it to act arbitrarily or

unfairly in considering the eligible candidates.  Right

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of autonomy under Article 30 does not exclude the power

of  judicial  review  nor  it  excluded  enforcement  of

fundamental  rights  of  the  eligible  candidates  under

Articles 14, 16 and 21 of the Constitution of India.

It  was  submitted  that  statutory  rules  require

constitution  of  a  committee  for  selection  and  the

selection has to be reasonable and fair but the High

Court  erroneously  assumed  that  its  jurisdiction  was

limited to see that the appointed candidate possessed

requisite qualification.  The High Court ought to have

considered the contention of the petitioner that not

only he was senior, he was more suitable for the post

but was not considered by the respondents.   

7. Rules 74 and 86 which have been relied upon are as

follows:

“74. Recruitment and promotion.  (2)  Recruitment/promotion  of  employees  in  each recognised private school aided or unaided shall be made on the recommendation of the selection committee/ promotion committee. (3)  The selection  committee/promotion committee shall consist of:

(a) in the case of recruitment/promotion of the head of the school/Hr. Secondary school/primary Teachers Training Institute.

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(i) the chairman of the managing committee; (ii)the Dy. Education Officer of the area or an educationist  nominated  by  the  Director  of Education;  (iii) an educationist nominated by the managing committee and

(b) in the case of an appointment/promotion of a teacher (other than the headmaster of the school) : -

(i) the chairman of the managing committee or a member of the managing committee nominated by the chairman; (ii) the head of the institution; (iii) the Dy. Education Officer of the area or his representative to be nominated by him; and (iv) in the case of appointment of a teacher in the Hr. Secondary school or a primary Teachers' Training Institute, a specialist may be co-opted by the committee and in such a case he/she shall carry the same rights and privileges on par with other members.

(c) in the case of an appointment/promotion of a non-teaching staff

(i)the chairman of the managing committee or a member of the managing committee to be nominated by the chairman;  (ii) head of the institution; (iii)the Dy. Education Officer of the area or his nominee;  

Explanation:  In  case  of  minority  schools  the nominee  of  the  Department  or  an  Educationist appointed  by  the  Director  of  Education  in sub-rule

(3)  shall  function  as  an  observer  and  can participate in the discussion, but he/she shall not have the right to vote or make selection of

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the  candidates,  however  he/she  shall  send  a separate  report  to  the  Director  of  Education about his/her observations.

(4) The chairman of the managing committee, or, where  he  is  not  a  member  of  the "selection/promotion"  committee,  the  member  of the managing committee who is nominated by the chairman  to  be  a  member  of  the "selection/promotion"  committee,  shall  be  the chairman  of  the"  selection/  /promotion" committee.

(5) Selection Committee/Promotion Committee shall "follow  the  procedure  applicable  to  the corresponding posts in the Government Schools".

(6)  The  selection  made  by  the  selection committee/  /promotion  committee  shall  be ordinarily accepted by the managing committee of the  school.  Where  any  selection  made  by  the selection  committee/promotion  committee  is  not acceptable  to  the  Managing  committee  of  the school, the managing committee shall record its reasons  for  such  non  acceptance  and  refer  the matter  to  the  Director  of  Education  for  his decision  and  the  Director  of  Education  shall decide the same.  

(7) Where a candidate for "recruitment/promotion" to any post in the recognised school is related to  any  member  of  the  selection  committee, promotion  committee  the  member  to  whom  he  is related shall not participate in the selection and  a  new  member  shall  be  nominated  "by  the Managing  Committee  of  the  school  or  by  the Director  of  Education  as  the  case  may  be  as provided in sub-rule (3)".

(8)  No  managing  committee  shall  entertain  any application for employment from a person who is already serving as a teacher or otherwise in a recognised school, whether aided or not, unless,

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the  application  from  such  person  is  duly forwarded by the manager of the school in which such applicant is serving:

"Provided that every such application shall be forwarded by the applicant through the Head of the School to the Manager who shall forward the same  to  the  prospective  employer  within  seven days of its receipt by the Head of the School, under intimation to the applicant well within the time stipulated by the later towards the receipt of such application. In case the Manager fails to forward the application, the applicant may send a copy of his/her application to the prospective employer and appear directly for the interview."  Provided further that no such employee shall be relieved  of  his  duties  on  registration  except after the expiry of a period of:  

(i)  three  months,  in  the  case  of  a  permanent employee  from  the  date  on  which  notice  of resignation to leave the school is given; (ii) one month, in the case of an employee who is not permanent, from the date of which notice of resignation to leave the school is given;

Provided  also  where  the  employee  desires  to relieve himself before the expiry of the notice period  he  shall  be  relieved  forthwith  after recovery  of  three  months  salary  including allowances from the permanent employee and one month  salary  with  allowances  from  the non-permanent employee as the case may be and the amount  so  recovered  shall  be  credited  to  the Government  treasury  within  one  month  of  the acceptance of the resignation.  

86. Filling  of  vacancies.-  (1)  Notwithstanding anything contained in rule 78,every vacancy in an aided  school  shall  be  filled  up  by  promotion failing  which  by  direct  recruitment,  in accordance with such rules as may be framed by

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the  Director  of  Education  in  this  behalf  and notified/circulated separately.

"Provided that the claim of any employee already working under the said Management in the Under graduate  category  possessing  the  requisite qualifications for the direct recruit shall be given due consideration while filling up the post with direct recruitment."  

(2) The vacancy of Principal, Higher Secondary School/ Primary Training Institutes, Headmasters of Secondary Schools and Middle Schools, and the Asstt. Headmasters of Secondary Schools shall be filled up by promotion subject to the eligibility conditions prescribed in rule 78. While filling up of these posts, the managements shall first explore the possibility of selecting the senior most  teacher  from  the  next  below  'category indicated in column 5 of Table under rule 78. While making such selection the. management shall also give very careful consideration and shall select  the  best  qualified  and  most  competent person  among  those  available  for  selection/ appointment to the post. Seniority shall be the first criteria subject to fitness and merit. If the  claim  of  a  senior  eligible  teacher  is by-passed,  the  reason  for  the  same  in  writing will have to be recorded in the minutes by the promotion  committee.  The  claim  of  the  senior qualified  teacher  shall  not  be  by-passed arbitrarily without tangible reasons.

Explanation:-  Common  managements  running  the secondary  schools  as  well  as  Higher  Secondary schools,  shall  consider  the  claims  of  the Headmasters of Secondary schools in the order of inter se seniority for the promotion to the post of Principal of Higher Secondary Schools subject to eligibility conditions prescribed in rule 78.

(3)  The  management  shall  make  appointment  of Heads only on probation for a year in the first

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instance  and  communicate  full  particulars  with their biodata to the Director of Education for his approval. No Head of -the school shall be confirmed  without  the  prior  approval  of  the Director of Education.

(4) Every vacancy which is to be filled up by direct  recruitment  shall  be  notified  to  the Employment Exchange or in the local newspapers as the case may be as per the rules applicable to Government  Offices  while  recruiting  the corresponding  posts  in  Government  schools. However the harness cases shall be regulated as per the rules applicable to Government offices and  the  Director  of  Education  shall  be  the controlling authority.”   

8. The above rules are admittedly applicable.  Learned

counsel for the State and the private respondents have

relied upon Article 30 and judgment of this Court in T.

Jose (supra) to submit that a minority institution had

the  autonomy  in  selecting  a  principal  and  that

seniority is not the only criteria and, therefore, it

was not open to go into the claim of the petitioner on

merits.

9. We  have  given  our  anxious  consideration  to  the

rival  submissions.   There  is  no  dispute  with  the

proposition laid down in the case of T. Jose (supra),

that right to choose a principal is a part of a right

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of  minority  institution  under  Article  30(1)  of  the

Constitution and the said right is not affected merely

because  aid  is  extended  by  the  State  to  a  minority

institution.   In T. Jose (supra), this Court held that

Section 57(3) of the Kerala University Act, 1974 which

required  appointment  of  senior  most  lecturer  as

Principal  did  not  apply  to  a  minority  institution.

However, the decision of this Court cannot be read as

laying  down  a  principle  that  a  minority  institution

could act arbitrarily or unfairly in dealing with the

selection out of the eligible candidates.  The minority

institution may not be compelled to go by seniority

alone but it must follow a criteria which is rational.

10. In Full Bench judgment of the Kerala High Court in

Belsi  M. v.  Corporate  Management  of  Latin  Catholic

Schools,  Diocese  of  Neyyattinkara2 the  question

considered was: whether the judgment delivered by this

Court in T. Jose (supra) dispensed with the requirement

of fair procedure in selecting headmaster of a school.

The Full Bench held that the autonomy under Article 30

was  not  in  conflict  with  the  requirement  of  fair 2 2010 (2) KHC 220

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procedure,  in  the  matter  of  selection  of  a

headmaster/principal.  It was held :

“....So, We find it difficult to accept the view canvassed  by  the  learned  counsel  for  the management that the direction to follow a fair procedure in the matter of selection of teachers for appointment to the post of Headmaster, will have  the  effect  of  diluting  the  right  of  the minorities  to  administer  their  institutions, guaranteed by Article 30(1) of the Constitution of India.  The Manager is a statutory authority under the Kerala Education Act.  He is conferred with certain powers, rights and duties.  Every power conferred on a statutory authority has to be exercised fairly and reasonably.  It is an implied  limitation  on  the  power  of  every statutory functionary.  The Manager has the power to  take  disciplinary  action  against  an  erring teacher,  but  he  cannot  take  action  against  a teacher  for  being  red-haired.   Likewise  the Manager  of  a  minority  educational  institution cannot say that he will select the Headmaster by holding a test of 100 metres race and person who comes  out  first  in  the  said  race  will  be appointed as Headmaster.  If such a procedure is followed,  the  same  will  be  condemned  as  ultra vires, being arbitrary and irrational.  The power to  administer  does  not  include  the  power  to maladminster.  The power to make selection does not  take  in  its  fold  the  power  to  follow  an unfair  procedure  in  making  the  selection.   In this context, we refer to the decision of the House of Lords in  Roberts v.  Hopwood – 1925 AC 578.  It was a case where the Poplar Borough Council substantially increased the wages of its employees,  on  the  ground  that  the  Council  was authorised to grant wages it thought fit.  The auditors objected.  The matter finally reached the House of Lords, The House held that the power to grant such wages the Borough Council thinks

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fit, is subject to the implied limitation that it can pay only reasonable wages, even though the word “reasonable” is not present in the enabling statute.  What is stated by the House of Lords is a well-settled principle of Administrative Law. This decision has been referred to with approval by  the  Hon'ble  Supreme  Court  in  Delhi  Science Forum v.  Union of India 1996 (2) SCC 405.  So, the  Full  Court  in  Kurian  Lizy  (supra)  only reminded the duty of a statutory functionary that while he overlooks the rights of seniors, he may follow a fair procedure.  We have no doubt in our mind that the said direction can definitely stand with the decision in  Malankara Syrian Catholic College (supra).   The  said  decision  does  not impliedly overrule the decision in  Kurian Lizy (supra).   So,  the  observation  of  the  Division Bench in  Lijin (supra) that  Kurian Lizy (supra) cannot  stand  with  Malankara  Syrian  Catholic College (supra) is not tenable.”   

11. It can hardly be disputed that power of judicial

review under Article 226 is available to go into the

question  whether  action  of  an  aided  educational

institutional  (even  a  minority  institution)  is

transparent  and  fair.   Despite  the  autonomy  under

Article 30, exercise of power by a minority institution

discharging  public  functions  is  open  to  judicial

review.3  In T.M.A. Pai Foundation & Ors.  v. State of

Karnataka & Ors. 4 this Court held:

3  (2005) 4 SCC 649 para 31-32. 4  (2002) 8 SCC 481

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“   135.  We  agree  with  the  contention  of  the learned  Solicitor-General that  the Constitution in Part III does not contain or give any absolute right. All rights conferred in Part III of the Constitution are subject to at least other provi- sions of the said Part. It is difficult to com- prehend  that  the  framers  of  the  Constitution would have given such an absolute right to the religious or linguistic minorities, which would enable them to establish and administer educa- tional institutions in a manner so as to be in conflict with the other Parts of the Constitu- tion. We find it difficult to accept that in the establishment  and administration  of educational institutions by the religious and linguistic mi- norities, no law of the land, even the Constitu- tion, is to apply to them.

136. Decisions of this Court have held that the right to administer does not include the right to maladminister.  It  has  also  been  held  that  the right to administer is not absolute, but must be subject to reasonable regulations for the benefit of the institutions as the vehicle of education, consistent with national interest. General laws of the land applicable to all persons have been held to be applicable to the minority institu- tions also — for example, laws relating to taxa- tion, sanitation, social welfare, economic regu- lation, public order and morality.

137. It follows from the aforesaid decisions that even though the words of Article 30(1) are un- qualified, this Court has held that at least cer- tain other laws of the land pertaining to health, morality and standards of education apply. The right  under  Article  30(1)  has,  therefore,  not been held to be absolute or above other provi- sions of the law, and we reiterate the same. By the same analogy, there is no reason why regula- tions  or  conditions  concerning,  generally,  the welfare of students and teachers should not be

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made applicable in order to provide a proper aca- demic atmosphere, as such provisions do not in any way interfere with the right of administra- tion or management under Article 30(1).

138. As we look at it, Article 30(1) is a sort of guarantee or assurance to the linguistic and re- ligious minority institutions of their right to establish and administer educational institutions of their choice. Secularism and equality being two of the basic features of the Constitution, Article 30(1) ensures protection to the linguis- tic and religious minorities, thereby preserving the secularism of the country. Furthermore, the principles of equality must necessarily apply to the  enjoyment  of  such  rights.  No  law  can  be framed that will discriminate against such mi- norities with regard to the establishment and ad- ministration  of  educational  institutions  vis-à- vis other educational institutions. Any law or rule or regulation that would put the educational institutions run by the minorities at a disadvan- tage when compared to the institutions run by the others will have to be struck down. At the same time, there also cannot be any reverse discrimi- nation. It was observed in St. Xavier’s College case3 at SCR p. 192 that : (SCC p. 743, para 9)

“The whole object of conferring the right on mi- norities under Article 30 is to ensure that there will be equality between the majority and the mi- nority. If the minorities do not have such spe- cial protection they will be denied equality.”

In other words, the essence of Article 30(1) is to ensure equal treatment between the majority and  the  minority  institutions.  No  one  type  or category of institution should be disfavoured or, for that matter, receive more favourable treat- ment than another. Laws of the land, including rules and regulations, must apply equally to the majority institutions as well as to the minority

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institutions. The minority institutions must be allowed to do what the non-minority institutions are permitted to do.

139. Like any other private unaided institutions, similar unaided educational institutions adminis- tered by linguistic or religious minorities are assured  maximum  autonomy  in  relation  thereto; e.g. method of recruitment of teachers, charging of fees and admission of students. They will have to  comply  with  the  conditions  of  recognition, which cannot be such as to whittle down the right under Article 30.

xxx Q. 5. (c) Whether the statutory provisions which regulate the facets of administration like con- trol over educational agencies, control over gov- erning bodies, conditions of affiliation includ- ing recognition/withdrawal thereof, and appoint- ment of staff, employees, teachers and principals including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities? A. So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institu- tion, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to a university or board have to be complied with, but in the matter  of  day-to-day  management,  like  the  ap- pointment  of  staff,  teaching  and  non-teaching, and administrative control over them, the manage- ment should have the freedom and there should not be any external controlling agency.  However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself. ”

12. In the same judgment, Khare, J. (as     His

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Lordship then was) held:  

“  232. Another question that arises in this connection is as to on what grounds the staff and teachers, if aggrieved, can challenge the arbi- trary  decisions  of  the  management.  One  of  the learned Senior Counsel suggested that such deci- sions be tested on the grounds available under the labour laws. However, seeing the nature of the minority institutions the grounds available under labour laws are too wide and  it would be appropriate if adverse decisions of the manage- ment are tested on grounds of breach of the prin- ciples of natural justice and fair play or any regulation made in that respect. ”

(Emphasis added)

13. In  M. Nagaraj & Ors. v.  Union of India & Ors.5 it was observed:  

“  31. At the outset, it may be noted that equal- ity, rule of law, judicial review and separation of powers are distinct concepts. They have to be treated  separately,  though  they  are  intimately connected. There can be no rule of law if there is no equality before the law; and rule of law and equality before the law would be empty words if their violation was not a matter of judicial scrutiny or judicial review and judicial relief and all these features would lose their signifi- cance  if  judicial,  executive  and  legislative functions  were  united  in  only  one  authority, whose dictates had the force of law. The rule of law and equality before the law are designed to secure among other things, justice both social and economic.  106. …… According to the Constitutional Law of India, by H.M. Seervai, 4th Edn., p. 546, equal- ity is not violated by mere conferment of discre- tionary power. It is violated by arbitrary exer- cise by those on whom it is conferred. This is

5  (2006) 8 SCC 212.

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the  theory  of  “guided  power”.  This  theory  is based on the assumption that in the event of ar- bitrary exercise by those on whom the power is conferred, would be corrected by the courts.  118. The constitutional principle of equality is inherent in the rule of law. However, its reach is  limited  because  its  primary  concern  is  not with the content of the law but with its enforce- ment and application. The rule of law is satis- fied when laws are applied or enforced equally, that is, even-handedly, free of bias and without irrational distinction. The concept of equality allows  differential  treatment  but  it  prevents distinctions  that  are  not  properly  justified. Justification needs each case to be decided on case-to-case basis.  ”

14. The above decisions clearly show that autonomy of a

minority  institution  does  not  dispense  with  the

requirement to act fairly and in a transparent manner

and the High Court in exercise of its power of judicial

review  is  entitled  to  examine  fairness  of  selection

process.  Grievance of a citizen that he was treated

unfairly  cannot  be  ignored  on  the  ground  that  a

minority institution has autonomy or right of choice.

Exercise  of  right  of  choice  has  to  be  fair,

non-discriminatory and rational.    

15. We, thus, hold that while under the constitutional

scheme, a “minority institution” is free to select and

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appoint  a  principal,  without  being  bound  by  the

principle of seniority alone, whether the appointment

has been made fairly and reasonably and whether there

is  violation  of  right  of  an  individual  eligible

candidate by the minority institution by not adopting

fair procedure, is liable to be tested in exercise of

power  of  judicial  review  under  Article  226  of  the

Constitution.  Since this aspect of the matter has not

been gone into by the High Court, we allow this appeal

and set aside the impugned order.  The matter stands

remitted back to the High Court for a fresh decision in

accordance with law.  We make it clear that we have not

expressed  any  opinion  on  merits  of  the  controversy

between the parties.  No costs.

The parties are directed to appear before the High

Court  for  further  proceedings  on  Wednesday,  the  15th

February, 2017.   

..........................J.                 (ADARSH KUMAR GOEL)

..........................J.         (UDAY UMESH LALIT)

New Delhi, January 31, 2017.