Supreme Court of India
MRS. IVY C.DA.CONCEICAOversusSTATE OF GOA & ORS.
- Citation
- 2017 INSC 88
- Decided
- 31 January 2017
- Disposal
- Appeal(s) allowed
- Bench
- ADARSH KUMAR GOEL
Holding
Minority institutions may appoint a principal under Article 30, but the appointment must be made through a fair, non‑discriminatory and rational procedure and is subject to judicial review under Article 226.
Summary
Mrs. Ivy C. Da Conceicao, a Grade‑I teacher with 21 years of service, claimed she was the most senior and qualified candidate for the post of principal in a minority‑run school in Goa, but the school appointed junior teachers in violation of the Goa School Education Rules. The school relied on its autonomy under Article 30 of the Constitution to select a principal without being bound by seniority. The High Court upheld the school’s decision, holding that Article 30 gave it unfettered discretion. The Supreme Court allowed the appeal, holding that while minority institutions may choose a principal, the selection must be made by a fair, non‑discriminatory and rational procedure and is subject to judicial review under Article 226. Consequently, the impugned order was set aside and the matter remitted to the High Court for a fresh decision.
Issues considered
- The appointment process of a principal in a minority educational institution is amenable to judicial review under Article 226.
- Whether the autonomy granted by Article 30 permits a minority institution to ignore statutory rules and fair‑procedure requirements in appointing a principal.
- Whether the Goa School Education Rules, 1986 (Rules 64, 74, 86) apply to an aided minority institution.
- Whether the alleged denial of appointment violates Articles 14, 16 and 21 of the Constitution.
Legislation cited
- Constitution of Indias. Art. 14, s. Art. 16, s. Art. 21, s. Art. 226, s. Art. 30
- Goa School Education Act, 1984
- Goa School Education Rules, 1986s. Rule 64, s. Rule 74, s. Rule 86
Subjects
Minority institutionArticle 30Judicial reviewAppointment of principalFair procedureSeniorityGoa School Education RulesConstitutional lawEqualityAdministrative law
Judgment
[2017] l S.C.R. 445
MRS. IVY C.DA.CONCEICAO A
v.
STATE OF GOA & ORS.
(Civil Appeal No. 1257 of2017)
JANUARY31,20l7 B
(ADARSH KUMAR GOEL AND UDAY UMESH LALiT, JJ.)
Constitution of India -Arts. 226, 30 - Process of apprJinlment
of a principal in minorily institution - Judicial review -
Amenability - Held: Autonomy of a minority institution under Art.
30 does not dispense with the requiremenl to act fairly and in a
c
transparenl manner - Minority institution is free to select ana appoint
a principal, wilhout 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
eligiille candidate by the minority institu/ion by not adopting fair D
procedure, is liable to be tested in exercise of power of judicial
review under Ari. 226 - Goa School Education Rules, 1986 - rr. 64
and 86 - Goa School Education Act, 1984.
Allowin~ the appeal, the Court
HELD: 1.1 Rules 64 and 86 of the Goa School Education E
Rules, 1986 are admittedly applicable. In the case of T. Jose•, it
is rightly held that right to choose a principal is a part of a right 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. However, the decision of this F
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 he compelled to go by seniority alone but it must follow
a criteria which is rational. (Paras 8, 9) (454-C, E-Fl
G
1.2 Autonomy of a minority institution under Art. 30 of the
Constitution does not dispense with the requirement to a-:t fairly
and in a transparent manner and the High Court in exercise of its
power of judicial review is entitled to examine fairness of ~election
process. Grievance of a citizen that he was treated unfairly cannot
H
445
446 SUPREME COURT REPORTS [2017] I S.C.R.
A 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. [Para 14] [460-G]
1.3 While under the constitutional scheme, a "minority
institution" is free to select and appoint a principal, without heing
B 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
institut;on 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
c into by the High Court, the impugned order is set aside. The
matter stands remitted back to the High Court for a fresh decision
in accordance with law. [Para 15] [460-H; 461-A-B]
Secy. Malankara Syrian Catholic College v. T. Jose and
Others (2007) 1 SCC 386 : [2006] 9 Suppl. SCR 644;
D T.MA. Pai Foundation & Ors. v. State of Karnataka &
Ors. (2002) 8 sec 481: 120021 3 Suppl. SCR 587; M
N'2garaj & Ors. v. Union of India & Ors. (2006) 8 SCC
212 : [2006] 7 Suppl. SCR 336 - relied on.
Be/si M v. Corporate Management of Latin Catholic
E Srhoo/s, Diocese of Neyyattinkara 2010 (2) KHC 220;
Zee Telefilms Ltd. and Am: v. U. 0.1. & Ors. (2005) 4
SCC 649 : [2005] 1 SCR 913 - referred to.
Case Law Reference
[2006] 9 Suppl. SCR 644 relied on Para9
F
2010 (2) KHC 220 referred to Para 10
[2005] 1 SCR 913 referred to Para 11
[2002] :> Suppl. SCR 587 relied on Para 14
G [2006] '.' Suppl. SCR 336 relied on Para 1~
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1257
of2017.
From the Judgment and Order dated 14.08.2012 of the High Court
of Bombay at Goa in Writ Petition No. 542 of2008.
H
MRS. IVY C.DA.CONCEICAO v. STATE OF GOA & ORS. 447
· Devadatt Kamat, Rajesh Jnamdar, Javedur Rahman, Chandra A
Prakash, Advs. for the Appellant.
Pratap Venugopal, Ms. Surekha Raman, Anuj Sarma, Ms. Niharika,
Aman Shukla, Ms. Kanika Kalaiyarasani (for Mis. K. J. John & Co.),
Advs. for the Respondents.
The Judgment of the Court was delivered by B
ADARSH KUMAR GOEL, J. 1. Leave granted. This appeal
has been preferred against judgment and order dated l 4'h August, 2012
passed by the High Court of Bombay at Goa in Writ Petition N0.542 of
2008.
c
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, D
run by respondent 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
ofGca School Education Act, 1984 (for short, "the Act") and Goa School E
Education Rules 1986 (for short, "the Rules"). In the seniority list of
teact,ers, prepared by respondent No.3-Society. thP ~ppellant i£ 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 F
was appointed as Incharge-Principal, in the absence of regular principal,
from·7'" March, 2005 and again from 5'" May, 2005. She has no adverse
remark in her Confidential Reports. On I" April, 2005 a vacancy was
creat..d for the post of principal on retirementofone Sh. Edward Coutinho,
the then Principal of St. Andrew's Higher Secondary School, Vasco.
Respondent No.3 sought inform·ation about the appellant on 28'h July, G
2008 and again a vacancy was created on I" 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 4'" August, 2008 on account of appointment
of Sli. Mervin D'Souza to the post of Chairman of Goa Board of
H
448 SUPREME COURT REPORTS [2017] 1 S.C.R.
A Secondary and Higher Secondary Education. Vacancies were fill~d up
by prom:iting 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 16"' August, 2003, appointed to the post of Principal in Fr. Basilio
Andrade Memorial Higher Secondary School, Majorda, has already been
B
challenged by the appellant by way of Writ Petition N0.236 of2004 and
which was still pending when the said respondent was again appcinted
as Princ;pal of St. Theresa's Higher Secondary School, Candolim, on
15"' June, 2007 on availability of a vacancy and the claim of the appellant
for consideration against the post of Principal has been overlooked.
c 4. Respondent No.3-Society contested the petition by submitting
that the school run by it was a "minority institution". Claim uf the
appellar.t, for the post of Principal, was duly considered and in exercise
of its right under Article 30 of the Constitution oflndia, it selected the
most suitable candidate. There was, thus, no violation of Rules 74 and
D 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 Cat/10/ic College v. T. Jose and Otliers'. The High Court
E 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
F SZ!ch 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 Goa to appoint a qualified teacher having
requisite qualification, serving in the State of
G Maharashtra, in a school run by minority educational
il:stitution 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
H 1
(2001) 1 sec 386
MRS. IVY C.DA.CONCEICAO v. STATE OF GOA & ORS. 449
[ADARSH KUMAR GOEL, J.]
by respondent no.3 Society and as such. Rule 86 was A
not complied with. Even in such factual backgrow;d,
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
B
that the respondents no.4 to 7 do not have minimum
qualification for being appointed as Principals of the
school. Tllis being the position, in our consider2d
opinion, the ratio of the judgments of the Apex Court in
the above mentioned cases, is squarely applicable in
the present C(ISe. Tiie necess"ry sequitur is th"t the c
clwllenge of the petitioner tlwt DPC W(IS not properly
constituted or tlwt some of the appointees do not come
within the zone of consider(ltion, are irrelev"nt for the
purpose of deciding the issues involved in the present
petition. Therefore, in our considered view, no fault
D
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
E
the ll'inority institution may be entitled to appoint a qualified person ofits
choice as 'principal', it is not open to it to act arbitrarily or unfairly in
considering the eligible candidates. Right of aut,momy under Article 30
does not exclude the power ofjudicial review nor it excluded enforcement
offundamental rights of the eligible candidates under Articles 14, 16 and
21 of the Constitution of India. It was submitted that statutory rules F
require constitution of a committee for selection and the selection has to
be re'.lsonable 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
G
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
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450 SUPREME COURT REPORTS [2017] 1 S.C.R.
A recognised private school aided or unaided shall be
made on the recommendation of the selection committee/
p.-omotion committee.
(3) The selection committee/promotion committee shall
consist of
B (a) in the case of recruitment/promotion of the head of
the school/Hr. Secondary school/primary Teachers
Training Institute.
(ii the chairman of the managing committee;
C (H)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
D (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;
E (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 :.pecialist may be co-opted by the committee .
F and in such a case he/she shall carry the same rights
and privileges on par with other members.
(cl in the case of an appointment/promotion of a non-
teaching staff
(i)the chairman of the managing committee or a member
G of the managing committee to be nominated by the
chairman;
(ii) head of the institution;
(ifi)the Dy. Education Officer of the area or his nominee;
H
MRS. IVY C.DA.CONCEICAO v. STATE OF GOA & ORS. 451
[ADARSH KUMAR GOEL, J.]
Explanation: In case of minority schools the nominee A
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 the candidates, however B
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 c
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 ~orresponding D
posts in the Government Schools".
(6) The selection made by the selection committee! I
promotion committee shaU-be ordinarily accepted by the
managing committee of the school. Where any selection
made by the selection committee/pro111otion com111ittee E
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.
F
(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 Commillee of the school or by the G
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
J-l:i
...
452 SUPREME COURT REPORTS [2017] I S.C.R.
A serving as a teacher or otherwise in a recognised school,
whether aided or not, unless, 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
B 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
c 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
D 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;
E (ii) one month, in the case of an employee who is not
permanent, from the date of which notice of resignatio11
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
F
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
G of the resignation.
86. Filling of vaca11cies. - (1) Notwithstanding anything
contained in rule 78,every vacancy in a11 aided school
shall be filled up by promotion failing which by direct
recruitment, in accordance with such rules as may be
H
MRS. IVY C.DA.CONCEICAO v. STATE OF GOA & ORS. 453
[ADARSH KUMAR GOEL, J.]
fi·amed by the Director of Education in this behalf and A
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 B
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. c
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 D
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 E
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 commillee.
The claim of the senior qualified teacher shall not be
by-passed arbitrarily without tangible reasons.
F
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 co11ditio11s G
prescribed in rule 78.
(3) The 111anage111e11t shall make appointme/1/ of Heads
only 011 probation for a year in the first instance and
communicate full particulars with their biodata to the
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454 SUPREME COURT REPORTS [2017] I S.C.R.
A Director of Education for his approval. No Head of -
thz 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
B 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
c 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 submitthat a minority institution
had the autonomy in selecting a principal and that seniority is not the
D 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 of minority
E 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
F 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.
G 10. In Full Bench judgment of the Kerala High Court in Belsi M.
v. Corporate Management of Latin Catholic Schools, Diocese of
Neyyattinkara' 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
'2010 (2) KHC 220
H
MRS. IVY C.DA.CONCEICAO v. STATE OF GOA & ORS. 455
[ADARSH KUMAR GOEL, J.]
held that the autonomy under Article 30 was not in conflict with the A
requirement of fair 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 B
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 Kera/a
Education Act. He is conferred with certain powers, c
rights and duties. Every power conferred 011 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 D
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 I 00 metres race and per.son who
comes out first in the said race will be appointed as
Headmaster. If such a procedure is followed, the same E
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 F
refer to the decision of the House of Lords in Roberts v.
Hopwood - 192j AC j78. It was a case where the
Poplar Borough Council substantially increased the
wages of its employees, 011 the ground that the Council
was authorised to grant wages it thought fit. The
auditors objected. The matter finally reached the House G
of Lords, The House held that the power to grant such
wages the Borough Council thinks fit, is subject to the
implied limitation that it can pay only reasonable wages,
even though the word "reasonable" is not present in
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456 SUPREME COURT REPORTS [2017] I S.C.R.
A 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 'b/e Supreme Court in Delhi Science Forum v. U11io11
of/ndia 1996 (2J SCC 405. So, the Full Court i11 Kurian
Lizy (supra) only reminded the duty of a statutory
B
fu11ctio11ary 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 Svrian Catholic College
(supra). The said decision does not impliedly overrule
c 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 ofjudicial review under
D 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.'
In T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors. 'this
Court held:
E
" I 35. We agree with the contention of the learned
Solicitor-General that the Constitution in Part Ill does
not contain or give any absolute right. All rights
conferred in Part Ill of the Constitution are subject to
at least other provisions of the said Part. It is difficult
F to comprehend 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 educational institutions in a
manner so as to be in conflict with the other Parts of
G the Constitution. We find it difficult to accept that in the
establishment and administration of educational
institutions by the religious and linguistic minorities, no
law of the land, even the Constitution, is to apply to
them. ·
'(2005) 4 sec 649 para 31-32.
H • c2002) s sec 481
MRS. IVY C.DA.CONCEICAO v. STATE OF GOA & ORS. 457
(ADARSH KUMAR GOEL, J.]
136. Decisions of this Court have held that the right to A
administer does not include the right to ma/administer.
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
B
laws of the land applicable to all persons have been
held to be applicable to the minority institutions also -
for example, laws relating to taxation, sanitation, social
welfare, economic regulation, public order and morality.
137. It follows from the aforesaid decisions that even
though the words of Article 30(1) are. unqualified. this c
Court has held that at least certain 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
provisions of the law. and we reiterate the same. By the D
same analogy, there is no reason why regulations or
conditions concerning, generally, the welfare of
students and teachers should 110/ be made applicable
in order to provide a proper academic atmosphere, as
such provisions do not in any way interfere with the
right of administration or management under Article E
30(1).
138. As we look at it, Article 30(1) is a sort ofguarantee
or assurance to the linguistic and religious minority
institutions of their right to establish and administer
educational institutions of their choice. Secularism and F
equality being two of the basic features of the
Constitution, Article 30(/) ensures protection to the
linguistic and religious minorities, thereby preserving
the secularism of the country. Furthermore, the
principles of equality must necessarily apply to the G
enjoyment of such rights. No law can be framed that
will discriminate against such minorities with regard to
the establishment and administration of educational
institutions vis-a-vis other educational institutions. Any
H
458 SUPREME COURT REPORTS [2017] 1 S.C.R.
A law or rule or regulation that would put the educational ·
institutions run by the minorities at a disadvantage when
compared to the. institutions run by the others will have
lo be struck down. Al the same time, there also cannot
be any reverse discrimination. It was observed in St.
Xavier s College case3 al SCR p. 192 that : (SCC p.
B
743, para 9)
"The whole object of conferring the right on minorities
under Article 30 is to ensure that there will be equality
between the majority and the minority. If the minorities
do not have such special protection they will be denied
c 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
D favourable treatment than another. Laws of the land,
including rules and regulations, must apply equally to
the majority institutions as well as lo the minority
institutions. The 111i11ority institutions must be allowed
to do whal lhe non-minority insli1u1io11s are permilled
E lo do.
J39. Like any other private unaided i11sti111tions, similar
unaided educalio11al institulions administered by
linguistic or religious minorities are assured 111axi111um
autonomy in relation thereto; e.g. method of recruitment
F of teachers, charging offees and admission of students.
They will have to comply with the conditions of
recognition, which cannot be such as lo whittle down
the right under Article 30.
xxx
G Q. 5. (c) Whether the statutory provisions which regulate
the facets of administration like co11trol over ed11catio11al
agencies, control over govemi11g bodies, conditions of
affiliation i11c/udi11g recognition/withdrawal thereof.
and appoi11t111enl of staff. e111ployees, teachers and
pri11cipals including their service co11ditio11s and
H
MRS. IVY C.DA.CONCEICAO v. STATE OF GOA & ORS. 459
[ADARSH KUMAR GOEL, J.]
regulation offees, etc. would inteifere with the right of A
administration of minorities?
A. Sa far as the statutory provisions regulating the
facets of administration are concerned, in case of an
unaided mi11arity educatimial institution, the regulatory
measure of control should be minimal and the conditions B
of recognition as well as the conditions of affiliation ta
a u11iversi1y or board have ta be complied with, but in
the mailer of day,/a-day management, like the
appointment of staff. teaching and nan-teaching. and
administrative control aver them, the management
should have the freedom and there should not be any c
external controlling agency. However, a rational
procedure for /he selection of leaching staff anti for
laking disciplinary action has lo be evolved by Ifie
management //self."
12. In the same judgment, Khare, J. (as His Lordship then was) D
held:
232. Another question that arises in this connection
is as ta an what grounds the staff a11d teachers, if
aggrieved, can challenge the arbitrary decisia11s of the
management. One of the learned Senior Ca1111sel E
suggested that such decisions be tested an 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 ifadverse decisions of the management are
F
tested on gro1111ds of breach of the principles of nalurol
Justice and fair play or any regulation made In thal
respect. "
(Emphasis added)
13 . .In M. Nagaraj & Ors. v. Union of lntlia & Ors. 5 it was
G
observed:
" 31. At the outset, it may be noted that equality, rule of
law.judicial review and separation ofpowers are distinct
concepts. They have ta be treated separately. though
• (2006) s sec 212
H
460 SUPREME COURT REPORTS [2017] I S.C.R.
\ A they are intimately connected. There can be no rule of
I law if there is no equality before the lmv; 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 significance if judicial,
B
executive and legislative functions were united in only
one authority, whose dictates had the force of law. The
rule of lmv and equality before the lmv are designed to
secure among other things, justice both social and
econo111ic.
c 106. ...... According to the Constitutional Law of India,
by H.M. Seervai, 4th Edn., p. 546, equality is not
violated by mere conferment of discretionary power. It
is violated by arbitrary exercise by those on whom it is
conferred. This is the theory of "'guided power". This
D theory is based on the assumption that in the event of
arbitrary 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
E its primary concern is not with the content of the law
but with its enforcement and application. The rule of
law is satisfied when laws are applied or enforced
equal/)\ that is, even-handedly, free of bias and without
irrational distinction. The concept of equality allows
differelllial treatment but it prevents distinctions that are
F not proper~y 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 ofjudicial
G review is entitled to examine fairness of selection process. Grievance
ofa 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
H
MRS. IVY C.DA.CONCEICAO v. STATE OF GOA & ORS. 461
[ADARSH KUMAR GOEL, J.)
"minority institution" is free to select and appoint a principal, without A
being bound by the principle of seniority alone, whether the appointment
has been made fairly and reasonably and whether there is violation of
right ofan 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
B
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 c
proceedings on Wednesday, the 15"' February, 2017.
Nidhi Jain Appeal allowed.
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