GOVERNING BODY, ST. ANTHONY'S COLLEGE, SHILLONG & ORS.versusREV. FR. PAUL PETTA OF SHILLONG EAST KHASI HILLS.

        GOVERNING BODY, ST. ANTHONY'S COLLEGE,
                                                                                A
                    SHILLONG & ORS.
                           v.
         REV. FR. PAUL PETTA OF SHILLONG EAST
                      KHASI HILLS.

                             AUGUST 18, 1988                                    B

                [M.P. THAKKAR AND B.C. RAY, JJ.]

       St. Anthony's College-Whether Salesian Provincial/President of
 the Governing Body of the College could order transfer of the Principal
 of the College or whether the governing Body could pass such an order C
 of transfer-Whether an opportunity of hearing was to be given to the
 Principal to show cause against the proposed transfer.

          The respondent had. been appointed Principal of St. Anthony's
   CoUege by Salesian Provincial and his appointment had been approved
   by the)}irector of Public Instruction (D.P.I.) on the recommendation of      D
  tlje,,governiitg body of the CoUege. Due to differences between the Princi-
  iraf and theChurch authorities, and particularly, the appellants Nos 2,
  3 and 4, i.e. the President and the members of the governing body of the
   CoUege, the appeUant No. 2, the President of the governing body and
  the Salesian Provincial intimated to the respondent of his transfer from
  the post of Principal of the College. The respondent contended that the       E
  appellant No ..2 had no authority to appoint or dismiss or transfer the
  Principal, as the Principal of the College belonging to minorities was to
  be selected by the governing body and to be approved by the D.P.J. in
  accordance with the government instructions contained in its Memo
  dated December 7, 1979. But the Salesian Provincial proposed another
  person as Principal, to which the governing body agreed and his               F
  appointment was approved by the D.P:i. The respondent filed·a writ
· petition in the High Court, contending tltat the ·siilesian Provincial had
  no power- to transfer him, as he had been appointed Principal by the
  governing body of the College with the approval of the D.P.I., and. so
  the Governing Body with the approval of the D.P.I. could transfer him
  under the statutory rules. and that the order of transfer, having been        G
  passed without giving him any opportunity to show cause, was
  arbitrary, illegal and ma/a fide and violative of the principle of natural
  justice. The High Court held that there was no reason why the respon-
  dent's removal from the post of Principal should not have been by the
  governing Body and subject to the approval of the D.P.I., and directed
  inter alia that the impugned order of transfer be kept lD abeyance and        H
                                     507
     508          SUPREME COURT REPORTS                11988] Supp. 2 S.C.R.

A    that the governing body would give the respondent an opportunity to
     show cause why he should not be transferred as stated in the impugned
     transfer order, and decide the matter of transfer after hearing him.
     Aggrieved by the order of the High Court, the governing body and
     others moved this Court by special leave.
                                                   .         ..

B    .    ·It was contended by the appeilants inter .alia. that ihe respondent
     could not have any grievance against the order of transfer as he had no
     statutory right to remain as Principal and that he, being ordained as
     priest according to the Articles of the constitution of the Society of St.
     Francis de Sales, the Salesian Provincial could transfer him to serve in
     any of the institutions of the Society as his service was transferable, and
C    he could not question the transfer.

           Dismissing the appeal, the Court,

           HELD: The St. Anthony's College was a minority institution
     within the meaning of Article 30 of the Constitution, and the instruc-
D    lions contained in the Government Memo dated 7th December, 1979,
     laying down the procedure of appointment of Principal, vice-Principal,
     etc, in religious minority Colleges in the State would apply to this
     Institution. [514E-F)

           The impugned order of transfer was passed without asking the
E    respondent to show cause against the transfer and giving him an
     opportunity of hearing. The impugned order purported to transfer the
     respondent from the post of Principal of the College to the post of
     Teacher in a school. Tl!is order of transfer prejudicially affected the
     stat~s of the respondent. [515E-FJ

J1         The main question for consideration was whether the Salesian
     Provincial, appellant No. 2 was competent to transfer the respondent
     who had been appointed by the governi.ng body of the college and
     approved by the D.P.I. as per the Government instructions applicable
     to a minority college. [515G]
                             \
G       According to the Government instructions aforesaid, the Princi-
  pal whose appointment had been approved by the D.P.I., could work as
  Principal in the minority college till the age of superannuation as
  determined by the Government. The impugned order of transfer
  amounted to removal of the respondent from the post of Principal. The
  principles of natural justice and fair play mandate that in administra-
H tive actions the audi alteram partem rule is applicable; the person
               ST. ANTHONY'S COLLEGE v. PAUL PETTA                       509

affected by the order had to be given an opportunity of hearing against        Ai
the purported order apart.from the question wl)etber the Assam Aided
College Management Rules and Assam Aided College Employees, Rules
a~e applicable to ininority institutions.·{516Jl-D] · ·

      The appellants contended that Salesian Provincial, appellant No.          B
2, was the appointing authority of the respondent and as such he had
the right to make the impugned order of transfer though _there was no
express provision c?nferring such a power. [SI6F]

      The question was whether the Salesian Provincial was, the
appointing anthority of the respondent, or the governing body of the
College appointed the respondent and recommended his appointment C
for approval to the D.P.I. The D.P.I. had approved the appointment of
the respondent pursuant to the recommendation of the governing body.
So this question had to be gone into and determined by the governing
body, as had been directed by the order oftbe High Court. In so far as
the respondent was "transferred in his capacity as a priest from one
division of the religious order to another, the matter pertained to the D
internal management of the religious order and it was not justiciable,
but in so far as the order of taJlsfer had been made, transferring the
respondent from the· post of Principal of the College to the post of
Teacher of a school in another State, the respondent could complain
against it. Since the respondent had not been given an opportunity of
hearing against the purported transfer which serionsly affected. his E
status, judgment of the High Court which directed the governing body
to give the respondent an opportunity to show cause against the
impugned order of transfer and to.give him a hearing and decide the
transfer matter in acconla!lfl with 1aw:•. oould not be faulted.l5_1_6G-H; SI7A:or

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3717   '                   F
of 1986.

                  -
     From the Judgment and Order dated 12.9.1986 of the Gauhati.
High Court in Civil Rule No. 428 of 1986.
                                                  /

      Ms. Lira Goswami and D.N. Mishra for the Appellants.                      G

    Shankar Ghosh, S.K. Hom Choudhary and S.K. Nandy for the
Respondent.

      The Judgment of the Court was delivered by
                                                                                H
      510         SUPREME COURT REPORTS               [1988] Snpp. 2 S.C.R.

A           RAY, J. The respondent, Rev. Fr. Paul Petta was appointed as
      Principal of St. Anthony's College by Salesian Provincial on April i6,
    1982 and on the recommendation of the Governing Body of the Col-
    lege, the Director of Public Instruction, Meghalaya, Shillong accorded
    approval to his appointment with effect from 1st May, 1982. St.
    Anthony's College was established by Salesian Congregration, a
11 Catholic Religious Society for imparting general education. It is a
    religious minoriry institution under Article 30 of lhe Constitution of
    India and it is receiving Government grants-in-aid since the scheme of
    deficit grant-in-aid to colleges was introduce by the Government of
    Assam in 1959. After creation of Meghalaya it has been receiving
    grants-in-aid under the same system as adopted by the Government of
G: Meghalaya. By Memo No. EON. 75/74/280 dated 4th November,
    1976, the Government of Meghalaya, Education Department
    conveyed to the Director of Public Instruction, the sanction of the
    Governmen:lof Meghalaya to the implementation of the U .G.C. scales
    of pay, as. indicated thereunder to all the deficit college teachers
    including ·the Principals, Professors in the State with effect from 1st
Ii> April, 1975. By Memo No. EON. 75/74/51 dated December 7, 1979
    the Government of Meghalaya .laid down the procedure for appoint-
    ment of Principals, Vice-Principals and Lecturers and other staff in_
    Religious Minority Colleges in the State with reference to Article 30 of
    the Constitution. Paragraph 1 which is relevant is quoted below:

E                "In the matter 'of appointment of Principals and Vice-
                 Principals in the colleges belonging to the religious minori-
                 ties, the Governing Body of the College concerned shall
                 select a Principal an\l Vice-Principal from a panel of names
                 submitted by the sponsoring Church Organisation con-
                 cerned, subject to the condition that the educational
                 qualifications of the persons selected shall be in accordance
                 with the conditions laid down in the Government's letter
                 No. EDN/75174/280 dated 4.11.76. Other conditions iri
                 respect of age of super-annuation etc. shall be as prescribed
                 by the State Government from time to time."

G           The respondent after his appointment had been working as
      ·Principal of the College. While working as such, differences arose
      between him and the church authorities more particularly the appel-
      lant Nos. 2, 3 and 4 i.e. the President and the members of the Govern-
      ing Body of the College regarding certain matters relating to the man-
      agement of the college.
JiI
              ST. ANTHONY'S COLLEGE ·v. PAUL PETTA [RAY; J.]              511

          On December 14, 1985, Fr. John Kalapura, SDB, the Appellant            A
    No. 2, President, Governing Body of St. Anthony's College and Sale-
    sian Provincial sent a letter to the respondent intimating him of his
    transfer from the power of Principal of the College. The letter states:


]              "After due consultation with the ·Provincial Council I am _
               transferring you from the post of Principal of St. Anthony's B
               College, Shillong and am appointing Rev. Fr. J. Kenny as
               Acting Principal of the same college with effect from
               21.12.85.

                      Kindly hand over the charge to Rev. Fr. J. Kenny by
                21st Dec. 1985."
                                                                                 c
          On receiving the said letter the respondent on that very day sent
    a letter to the appellant No. 2 stating that he had no authority to
    appoint or dismiss or transfer the Principal of the College as the Princi-
    pal and Vice-Principal in the College belonging to the minorities are to
    be selected by the Governing Body and to be approved by the Director         D
    of Public Institution i.n ac.cordance ..vith Government instructions
    mentioned in its letter dated December 7, 1979. The respondent sent a
    letter to the Director of Public Instruction (in short D.P.I.) intimating
    that he had been removed from the Principalship of St. Anthony's
    College· by the appellant No. 2, the Salesian Provincial of Gauhati
    Province and .Rev. Fr. Kenny had been appointed as the Acting Princi-        E
    pal and Je(juested him to intimate if the Government has given any
    power to Sponsoring Authority for St. Anthony's College in contra-
    vention of the Memo dated December 7, 1979. The D .P .I. has
    informed the respondent by his letter dated 23rd December, 1985 that
    "this office is not aware of any such power given .to the Church
    Authority concerned". The Salesian Provincial by its Jette~ dated            F
    March 7, 1986 pro_posed the name of Fr. Ste_phen Mavely as Principal
    of thecsaid College. The Governing Body at its meeting held on 17th
    March, 1986 resolved that Fr. Stephen Mavely be appointed Principal-
    cum-Secretary of St. Anthony's College with effect from March 10,
     1986. The said appointment was approved by D.P.I., Meghalaya with
    effect from 10th March, 1986.                                                G

         The respondent filed a suit being T.S. No. l(T) of 1986 in the
    Court of the Assistant District Commissioner with a prayer for
    temporary injunction. An interim order of maintaining status quo was
    obtained. But as in the meantime the office of the Principal was
    opened and taken _possession of, the. suit was withdrawn and a writ
     512          SUPREME COURT REPORTS                  [1988] Supp. 2 S.C.R.

     petition being Civil Rule No. 428 of 1986 was filed challenging that
A
     Salesian Provincial has no power to transfer the respondent, viz. the
     Principal of the College to Don Bosco Technical School, Maligaon,



                                                                                     [
     Gauhati. The respondent was appointed as Principal of the said Col-
     lege by the Governing Body of the College with the approval of D.P.I.
  ·· and so the Governing Body with the approval of D .P .I, can transfer
B him under the statutory rules. It was also contended that the respon-
     dent acquired a satutory right to hold the post of Principal till his
     attaining the age of super-annuation. The purported order of transfer
     is illegal and without jurisdiction. It has also been contended that the
     purported order of transfer tantamounts to removal of the respondent
     from the post of Principal and the said order being issued without
     recording any reason and without. giving any opportunity to show
c    cause to him is arbitrary, illegal and mala fide. The: purported order of
     transfer is thus violative of principles of natural justice and as such it is
     liable to be quashed.

           An affidavit in opposition was filed on behalf of appellant Nos.
D    2, 3 and 4 denying that the administration and management of the said
     college including the appointment, discipline etc. are governed by the
     Assam Aided College Management Rules, 1965, Assam Aided Col-
    lege Employees' Rules, 1960 for appointment of Principals and Vice-
    Principals and conditions of grants-in-aid to aided colleges in 1956. It
    has been stated that St. Anthony's College is a minority institution and
E   the Salesians Provincial is the only Competent Authority to make any
    appointment to the rank of Principal in the said College and no ad-
    vertisement before making any appointment is necessary. This relaxa-
    tion of restriction in regard to Minority College availing of deficit
    grants-in-aid has been made by Memo dated December 7, 1979. The
    petitioner is a member of the Salesian of Don Bosco and his appoint-
F   ment to the said post of Principal could never have been permanent.
    As a priest he is transferable from time to time to different institutions
    of the Society. The Constitution of the Salesians of Don Bosco pro-
    vides that such transfer is binding on the petitioner as a priest and a          ['
    member of the Salesian Don Bosco. The transfer of the petitioner and
    other priests are matters of normal routine as members of Salesian
G   Society. It has also been stated that any money drawn by a priest has to
    be given to the order of Salesian of Don bosco and no priest maintains
    any private fund. It is the responsibility of the Salesian Society to look
    after the needs and requirements of any member of the community
    and is responsible for the upkeep of such members. The petitioner has
    taken a vow of obedience when he was ordained as a priest and was
H   admitted as a member of Don bosco. The petition is liable to b< dismis-
      514         SUPREME COURT REPORTS                [1988] Supp. 2 S. C.R.

                 conformity with the Government instructions (Annexure-
A                8). If the impugned order is revoked, the petitioner shall
                 automatically be reinstated in his post of principal of the       ·,r-


                                                                                   -
                 College, and shall be given all the emoluments and benefits
                 thereof. The Respondent No. 11 shall correspondingly
                 cease to be Principal of the College, but shall not be disen-
B                titled to the pay and allowances for the services already
                 rendered by him to the College prior to this date. In case
                 the Governing Body decides to give effect to the impugned
                 transfer order it shall revive and the petitioner shall be free
                 to pursue his remedies under the law. In the interest of fair
                 hearing and reasonable opportunity, we direct the Govern-
                 ing Body to make available to the p~titioner all the records
c                which he may need for the purpose of his defence; the
                 petitioner shall, not, however function as Principal during
                 the period of one month pending decision. The decision
                 shall be taken within a month from today."

II>        Aggrieved by the said order made in Civil Rule No. 428 of 1986,
      a special leave petition has been flied by the Governing Body and
      some of the members of the Governing Body of the College. After
      hearing the learned counsel for the parties special leave was granted.'

            The St. Anthony's College is admittedly a-minority institution
E within the meaning of Article 30 of the Constitution and as such the
     Salesian Don Bosco Society is competent to administer the said col-
     lege. This College is getting deficit grants-in-aid from the Government
     of Meghalaya and the instructions contained in Memo No. EDN. 75/
     74/51 issued by the Government of Meghalaya on 7th December, 1979
     laying down the procedure of appointment of Principal, Vice-Prin-
f' . cipal, Lecturers and other staff in religious minority colleges in the
     State will apply to this Institution. The respondent who was a lecturer          Jl
     of .St. Anthony's College was sponsored by Salesian Provincial, the
     appellant No. 2 for appointment of Principal of the .College and the
     Governing Body ·of . the College recommended the same to the
     Director of Public Instruction, Meghalaya for approval as required
6 under the above instructions. The D.P.I. duly approved the appoint-
     ment of the respondent, Rev. Fr. Paul Petta as Principal of the College
     with effect from May 1, 1982. The appellant worked as Principal of St.
     Anthony's College since the date of his appointment till the impugned
     order.of transfer made by the appellant No. 2 Rev. Fr. John Kalapura
     as Salesian-Provincial from the post of Principal of the said College to
ff. the post_of Teac1Ier, Don Bosco Technical School, Malig_aon, Gauhati
          ST. ANTHONY'S COLLEGE v. PAUL PETTA [RAY; J.l                 515

on December 21, 1985 without asking him to show cause against the
                                                                               A
order of transfer and without giving him any opportunity of hearing. It
has been urged that the respondent being ordained as a priest of the
society has taken vow of servie to any post where he will be asked by
the Society to work. As a priest he was sponsored by the Church
Authority for appointment as Principal and the Governing Body of the
College also recommended his appointment as made by Salesian Pro-              B
vincial for approval. The petitioner cannot have any grievance against
the order of transfer as he has no statutory right to remain as Principal
of the College. It has also been contended by refering to certain Arti-
cles of Constitution of the Society of St. Francis de Sales that the
respondent being ordained as priest of the Society took the vow of
service and the Salesian Provincial can transfer him to serve in any of
the iilstitutions of the Society as his service is transferable. It has also   c
been submitted that as a priest the respondent cannot keep any money
with him and whatever salary he gets will have to be given to the
Society which will look after him and meet his needs,: The respondent
cannot question the order of transfer. The respondent so long as he
submits to the order of transfer and complies with it, the court has           D
nothing to do. But if he does not comply with it and questions it before
the Court, the Court will have to consider his grievances and to decide
if the impug~ed order of transfer is legal and valid.

      The respondent was appointed as Principal of St. Anthony's Col-
lege by the Governing Body of the College and the same was duly E
approved by the Director of Public Instruction, Meghalaya in accord-
ance with the procedure laid down in the Government's letter dated
December 7, 1979. The impugned order of transfer purports to trans-
fer the respondent from the post of Principal of the College to the post
of Teacher in the Don Bosco Technical School at Maligaon within the
State of Gauhati over which the Governing Body of St. Anthony Col- F
lege has no control. This order of transfer has prejudicially affected the
status of the respondent as Principal of St. Anthony's College. The
main question that arises for consideration in this appeal is whether
the Salesian Provincial, the appellant No. 2, is competent to transfer
the petitioner who has been appointed as Principal of the College by
the Governing Body of the College and approved by the D .P .I. as per G
Government instructions applicable to mfoority college. There is no ·
dispute that tlie respondent is a member of Salesian Don Bosco
Society as a priest. It is also not in dispute that as a priest of the society
he was sponsored by the Church Au\horities for the post of Principal
of the College and the Governing Body of the College recommended
to the D.P.I. for approval of his appointment as Principal of the Col- H
      516         SUPREME COURT REPORTS                [f988l·Supp. 2 S.C.R.

A     lege. ln such circumstances it is required to be considered whether the
      Salesian Provincial has power to transfer him from the post of Princi-
      pal of the College to the post of Teacher in -a Technical School of the
      Society. It is apparent from the aforesaid Government instructions
      that the Principal whose appointment has been duly approved by the
      D.P.l. can work as Principal in the minority college till he attains the
B     age of super-annuation as determined by the Government. Th<
      impugned order of transfer in substance amounts to removal of the
      respondent from the post of Principal of the College. It has been held
      by the High Court that the respondent has been condemned unheard
      as he was not given any opportunity to show cause for the purported
      order of transfer whih seriously prejudiced him. The principles of
C     natural justice and fair play mandate that in administrative actions the
      audi alteram partem rule is e.pplicable and the person affected by the
      order has to be given an opportunity of hearing against the purported
      order aparffrom the question whether the Assam Aided College Man-
      agement Rules, 1965 and Assam Aided College Employees' Rules;
      1960 are applicable to minority institutions. We do not consider it
II>   necessary for the purposes of this appeal to make any observations on
      the question whether the Assam Aided College Management Rules,
      1965 and Assam Aided College Employees' Rules, 1960 are applicable
      to minority institutions or to consider the question whether the rules
      concerning the terms and conditions of appointment as well as pre-
      scribing qualifications for appointment to the post of lecturers and
E     principals as well as prescribing conditions for service are regulatory in
      nature and they do not contravene the fundamental right guaranteed
      under Artile 30 of the Constitution to the minority institutions as has
      been observed in the case of.Frank Anthony Public School Employees
      Association v. Union of India & Ors., [1987] 1 SCR 238. It has been
      contended on behalf of the learned counsel for the appellants that the
IF    appellant No. 2, Salesian Provincial is the appointing autlfority of the
      respondent and as such he has the right to make the impugned order of
      transfer though there is no express provision conferring such power.
      The case of Kutoor Vengayil Rayarappan Nayanar v. Kutoor Vengayil
      Valia Madhavi Amma and Ors., AIR 1950 (Federal Court) 140 has
      been cited at the bar for the proposition that the power to terminate
(J    flows naturally and as a necessary sequence from the power to create.
      This proposition is a well established proposition but the question is
      whether the Salesian Provincial is the appointing authority of the re-
      spondent or the Governing Body of the said College appointed the
      respondent and recommended his appointment for approval to the
      D.P .I. As stated earlier D.P.l. pursuant to the recommendation of the
H     Governing Body approved the appointment of the respondent as
          ST. ANTHONY'S COLLEGE v. PAUL PETTA !RAY, l.I            517

Principal of ihe said College, So this question has to be gone into and A
determined by the Governing Body as has.been directed by the ordc1
of the High Court: It has been contended that the impugned order <>I
transfer has seriously affected the status of the respondent as Principal
of the College and this has been made by the appellant No. 2, Salesian
Provincial without giving him any opportunity of hearing. Now in so
                                                                          B
far as the Respondent is transferred in his capacity as priest from one
division of the religious order to another the matter pertains to the
internal management of the religious order and it is not justiciable.
However, in so far as .the order of transfer has been made by the
Governing Body of the St. Anthony's College transferring the respon-
dent from the post of Principal of the College to the post of Teacher of
Don Bosco Technical School·which is in another State the respondent      c
can complain against it. Since the respondent has not been given any
opportunity of hearing against the purported order of-transfer outside
the State which seriously affected his status, the High Court, in the
facts· and circumstances of the case has.directed the Governing Body of
the College to give the respondent an opportunity to show cause
against the impugned order of transfer dated 14.12.1985 and to give D
him a hearing and decide the transfer matter in accordance with law.
The judgment and order passed by the High Court in the circums-
tances of the case cannot be faulted.

      We therefore, uphold the order passed by the High Court and
the appeal is dismissed with costs quantified at Rs.5,000.               E

S.L.                                                Appeal dismissed.