May - High Court of Judicature at Allahabad

62
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
appearing for the appellant and that the
Director Minority Welfare does not have the
implied power to satisfy himself, for
administrative purposes and /or for the
purposes of payment of salary, as to who is
the Principal of the institution. Upon regard
being had to the administrative control that
the Director of Minority Welfare, U.P.
Exercises over the minority institution,
Particularly the provisions contained in Rule
39 of the Niymawali approved by the Govt.
vide Govt. Order dated 22.08.1987, we are of
the view that in case a dispute arise between
two rival claimants to the post of principal of
minority institution, the District Minority
Welfare Officer and/or the Director Minority
welfare U.P., Lucknow has the power to
decide, on administrative level, as to who
amongst the two rival claimants has been duly
appointed head of the institution by the
Management at least for the purpose of
disbursement of salary.
7. The nest question that arises for
consideration is as to whether such implied
power in the District Welfare Officer or
Director Minority Welfare, U.P. offends
Article 30 (1) of the Constitution. In re : Kerla
Education Bill, 1957: AIIR 1958 SC 956 and
in Ahemdabad ST. Xavier’s College Society
versus State of Gujrat 4 it has been held that
minority institutions have a right to establish
and administer educational institutions of their
choice but at the same time if has been
propounded that the right to administer connot
include the right to mal administration.
Regulatory measures, it has been held therein,
do not abridge, the right guaranteed by Article
30 (1) of the Constitution. Mathew, J.
discussing the type of avocation State would
amount guaranteed by Article 30 (1) of the
Constitution observed thus:
“ The application of the term ‘abridge’ may
not be difficult in certain types of situations.
The important ones are where a law is not a
direct restriction of the right but is designed to
4 AIR 1974 S.C. 1389
accomplish another objective and the impact
upon the right is secondary or indirect.
Measures which are directed at other forms of
activities but which has a secondary or direct
of incidental effect upon the right do not
generally abridge a right unless the content of
the right is regulated….”.
In Christian Medical College Hospital
Employees’ Union and another versus
Christian Medical College Vellore
Association and others 5 the Supreme Court
was faced with the question as to whether the
Industrial Disputes Act offends Article 30 (1)
of the Constitution. It has been held that the
Industrial Disputes Act which is a general law
for prevention and settlement of industrial
disputes cannot be said to interfere with the
right of the minorities to establish and
administer educational institutions. The
argument that the application of the
provisions of the Act will result in the
abridgement of the right of the Management
of the Minority educational institution to
administer such institutions was repelled by
the Supreme Court not with standing the
power of the Industrial Tribunal/Labour Court
to set orders of the Management in respect of
their employees at naught.
8. In St. Xavier’s case (Supra) the
permission with respect to “selecting method
of arbitration for setting major dispute
connected with service of staff of education
institutions” was held not objectionable. What
was held objectionable in that case was giving
of power to the Vice Chancellor to nominate
an umpire. Same principle has been reiterated
in Lily Kurian versus Sr. Lewina and others 6 .
The decision of the Director Minority Welfare
in the present case on the dispute as to who
had been duly appointed head of the
institution being an administrative decision is
open to judicial review by this court under
article 226 of the Constitution of India and
can also be assailed by the aggrieved party by
5 AIR 1988 S.C. 37
6 (1979) S.C.C. 124