Full Judgment Text
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PETITIONER:
THE MANAGING BOARD OF THE MILLI TALIMI MISSION, BIHAR,RANCHI
Vs.
RESPONDENT:
THE STATE OF BIHAR & ORS.
DATE OF JUDGMENT14/08/1984
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
VARADARAJAN, A. (J)
MUKHARJI, SABYASACHI (J)
CITATION:
1984 AIR 1757 1985 SCR (1) 410
1984 SCC (4) 500 1984 SCALE (2)251
ACT:
Right of minority educational institution-Right to get
affiliation from the Universities-Whether the right to
affiliation or to obtain aid from the Government is a
fundamental right so as to violate Article 30-Whether the
refusal to give affiliation by the statutory authorities in
the instant case without just and sufficient cause amounts
to violation of Article 30 of the Constitution or simply an
arbitrary and illegal action-Supreme Court can award costs
against a State for disobedience of the orders of the Court
to produce documents called for and for failure to perform
constitutional duties by institutions.
HEADNOTE:
The appellant-Institution was started as a Teachers
Training College under a Society which was established as
far back as 1972, though the college itself was established
and started in July 1977. On 22.9.1977 the institution made
an application to the Government for grant of affiliation or
recognition of the same in response to which a most
extraordinary order was passed by the Government directing
the University for refusing affiliation on the strange
ground that all proposals for affiliation by the non-
Government Teachers Training Colleges be rejected and that
no student be allowed to appear as a private candidate. How
ever, since the above decision was not applicable to
minority institutions which was reiterated by a latter
ordinance called Bihar non-Government Teachers Training
College ordinance on June 5, 1978, it was incumbent on the
institution to prove that it was a minority institution
before it could be granted affiliation, on 24.2.1978 the
appellants filed an application before the Ranchi University
for grant of affiliation on June 15, 1978, the Government
wrote to the Ranchi University for inspection of the
appellants college. On 6.2.1980. Joint Secretary to the
Government of Bihar sent letter to the Ranchi University and
the Deputy Commissioner, Ranchi for inspection of the
appellants’ college. Although the institution applied for
affiliation in 1978 and claimed to be a minority institution
which was never disputed at any point of time the Government
took three years to take a decision about affiliation of the
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appellants’ college. On 5.3.1980, the University Authorities
inspected the appellants’ college and recommended its
affiliation which was followed by a report by the District
Development officer, Ranchi on 30.6.1980 recommending
affiliation. But, despite these facts no final decision was
taken by the Government as a result of which the appellants
had to move the High Court for directing the Government to
grant affiliation. On the High Court’s direction to the
Government to decide recognition and affiliation
411
the appellants’ college within a specified time, on
3.11.1980, the Government granted recognition and approval
for affiliation for three sessions only, i.e. 1977-78, 1978-
79 and 1979-80. On 10.11.1980, the University wrote to the
Government recommending further grant of affiliation to the
appellants’ college. On 22.11.1980 the appellants applied
for grant of permanent affiliation. But, somehow or the
other, on 27.11.1980 for undisclosed reasons, the Government
passed a strange-order cancelling the recognition and
approval for affiliation granted to the appellants’ college
vide its letter dated 3.11.1980. This order was challenged
before the High Court which quashed the same on 18.5.1981.
Thereafter, on 17.8.1981 the State of Bihar filled a Special
Leave Petition before the Supreme Court which was dismissed
on 30.11.1981. However. on 7.9.1981. three minority
colleges, alongwith the appellants’ college, were granted
recognition and affiliation by the Government by virtue of
the High Court’s orders.
The appellants again wrote to the High Court to direct
the State Government to dispose of the application of the
appellants for permanent recognition filed by them on
22.11.1980. On 16.9.1982. the Education Commissioner, Bihar
again made a recommendation This recommendation was made
after inspection by the Educational Commissioner In the
presence of the local authorities as also the University
authorities and after coming to a conclusion that the
institution was a minority institution. Despite this, since
no action was taken by the Government the appellants were
compelled to file another Writ Petition in the High Court on
3.5.1983 with a prayer to allow the students of the
appellants’ college to appear at the University Examination,
but the Writ Petition was dismissed by the High Court in
limine. Hence, the appeal by Special Leave of this Court
Allowing the appeal, the Court
^
HELD: (Per majority)
Per Fazal Ali. J
1.1. Although Article 30 of the Constitution is not
included in Part III of the Indian Constitution which
guarantees certain fundamental rights, yet the Supreme Court
starting from the Kerala Education Bill s case, which is the
locus classicus on the point in issue, right up to the case
of The Ahmedabad St. Xaviers College Society & Anr. etc. v.
State of Gujarat and Anr. and ending with All Saints High
School, Hydrabad & Ors. v. Government of Andhra Pradesh &
Ors. has clearly recognised that running of minority
institutions is also as fundamental and important as the
rights conferred on the other citizens of the country, with
the only difference that the rights contained in Article 30
have as independent sphere of their own The freedoms
guaranteed by Article 30 are also elevated to the status of
a full-fledged fundamental right within the field in which
they operate. In other words, any State action which in any
way destroys, curbs or interferes with such rights would be
violative of Article 30. [414 G-H; 415 A-B]
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1.2. Technically speaking, the right of affiliation or
aid from the Government is not a fundamental right so as to
violate Article 30, but the refusal to give aid or
affiliation by the statutory authorities without just and
sufficient grounds amounts to violation of the fundamental
freedoms enshrined in Articles 30 of the Constitution. If
the Government withholds giving aid or a University
412
refuses to grant affiliation, the direct consequence would
be to destroy the very existence of the institution itself
because there may be a number of minority institutions which
may not exist without the Government aid and a large number
of students admitted to these institutions, in the absence
of affiliation, will be deprived of acquiring higher
academic status which will not only be a loss to the
institution but a loss to the nation itself. It is for this
purpose that Article 30 was inserted in the Constitution.
[415 G-H; 416 A]
Kerala Education Bill’s Case [1959] SCR 995; The
Ahmedabad St Xaviers College Society & Anr. etc. v. State of
Gujarat & Anr. [1975] 1 SCR 173; and All Saints High School.
Hyderabad & Ors. v. Government of Andhra Pradesh & Ors.
(1980) 2 SCC 178 referred to.
1:3. On a careful and detailed review of these cases
the following position emerges:
(1) that while Art. 30 undoubtedly seeks to preserve
the religious freedom, autonomy and its individuality; there
is no fundamental right under which an institution can claim
either aid or affiliation as a matter of right. It is
permissible for the State of the University, as the case may
be, to lay down reasonable conditions to maintain the
excellence of standard of education but in the garb of doing
so, refusal to grant affiliation cannot be made a ruse or
pretext for destroying the individuality and personality of
the said institution. If this is done, then apart from being
wholly arbitrary and unreasonable it would amount to a clear
infraction of the provisions of Art. 30 because what cannot
be done directly is done indirectly. [420 C-E]
(2) While the State or a University has got an absolute
right to insist on certain courses of study to be followed
by institutions before they could be considered for
affiliation but these conditions should not in any way take
away the freedom of management or administration of the
institution so as to reduce it to a satellite of the
University or the State. This is impermissible because such
a course of action directly violate Art. 30 of the
Constitution. [420 F-G]
(3) While imposing conditions before granting
affiliation, as indicated above, the State or the University
cannot kill or annihilate the individuality or personality
of the institution in question by insisting on following a
particular kind of syllabus or a course of study which may
be directly opposed to the aims, objects and ideals sought
to be achieved by the institutions. [420 H]
(4) There is a very thin line of distinction between
withholding of affiliation for a particular purpose on
extraneous grounds so as to subject the institution to
rigorous orders, edicts or resolutions which may run counter
to the dominant purpose for which the institution has been
founded, and insisting on genuine and reasonable conditions
to be imposed in the larger interest of education. [421 A-B]
While affiliation itself may not be a fundamental right
but refusal of affiliation on terms and conditions or
situations which practically denies the progress and
autonomy of the institution is impermissible as being
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violative of Art. 30 of the Constitution. [421 C]
413
2:1. In the instant case, the State has refused to
grant affiliation on purely illusory grounds which do not
exist and failed to consider the recommendation of the
Education Commissioner which was made after full inspection
for grant of affiliation. In other words, the affiliation
was refused without giving any sufficient reasons and such a
refusal contravenes the provisions of Art. 30 of the
Constitution. [426 G]
2:2. The belated attempt through a subsequent affidavit
filed by the State Government to show that there were
certain defects in the Institution, in view of the non-
production of the most important and decisive material, is
nothing but an after-thought. [425 F]
2:3. The State Government’s assurance to grant
affiliation to the appellants college on fulfilling certain
conditions is nothing but a pretext or a smoke screen to
cloud the real issue. The Government did not mean business
by producing a report on which Ex. J was based, which has
been deliberately suppressed despite the Court’s order to
produce the same. Therefore, an adverse inference has to be
drawn against the State Government to the effect that if the
materials on which the report was based had been produced it
would have exploded the case of the Government and disclosed
the real state of affairs namely that the appellants
institute does fulfil all the conditions imposed by the
State. [425 G-H; 426 A]
3. Normally the Supreme-Court does not grant cost in
case of refusal of affiliation to institutions but having
regard to the manner in which the State Government has
behaved and exhibited its reluctance to perform a
constitutional duty and has also tried to disobey the
Court’s order for production of certain documents the
instant case is a fit case for imposing a heavy cost on the
State, apart from the directions to the State for granting
affiliation to the appellant’s college and to allow its
students of the 1980-81, 1981-82 and 1982-83 sessions to sit
in the examination. [426 F-G]
Per Sabyasachi Mukharji, J. (Concurring)
In the background of the facts and circumstances of
this case, the Government action is not granting affiliation
to the appellants college is action based without reason and
is an act of arbitrariness. [428 F]
(Per contra)
1. Article 30 of the Constitution was engrafted for the
high and noble purpose of safeguarding and protecting the
rights of minorities to establish and administer educational
institutions. In this case, in not granting affiliation to
the appellants’ college there was no discrimination against
any educational institution on the ground that it was under
the management of any minority whether based on religion or
language. It was inaction or an act of arbitrariness on the
part of the authorities. From such unreasonable and
arbitrary actions or inactions institutions, educational or
otherwise, belonging both to the majority or minority
communities often suffer and in appropriate cases, Court
should grant relief without aid or recourse to the articles
of the Constitution protecting the freedom and rights of the
minorities. In this case there is no evidence or even any
serious allegation that affiliation was being denied to the
appellants institution on the ground that it was a minority
institution. [428 G-H; 429 A-B]
414
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 404 of
1984.
Appeal by Special leave from the Judgment and Order
dated the 11th July, 1983 of the Patna High Court in
C.W.J.C. No. 623 of 1983.
Dr. L.M. Singhvi, Mrs. Lakshmi Kant Pande & S.K. Sinha,
for the Appellant.
D. Goverdhan & B.B. Singh for the Respondents.
The following Judgments were delivered
FAZAL ALI, J. The most difficult and delicate task of
our founding fathers while framing the Constitution of the
largest democracy in the world was to protect, preserve and
safeguard the interests of the minorities and the backward
classes in order to retain the secular nature of our
Constitution. Perhaps they feared that a time may come when
the overwhelming majority may overshadow or dominate, devour
of destroy the educational, cultural and social rights of
the minorities and wreck their individuality and
personality. It was this central theme that runs through the
entire Constitution which has provided sufficient safeguards
to protect and preserve the minority educational
institutions which is the most important and vocal medium
through which this section of the society can speak and seek
to redress its grievances.
In this appeal we are merely concerned with the rights
and obligations of the State for the protection of minority
institutions and for this avowed purpose Art. 30 was
enshrined in our Constitution so that they may not suffer
from a sense of inferiority complex and are able to through
themselves into the main stream of the economic and
political life of the country so as to march forward with
the temper of the times and the needs of the nation Although
Art. 30 is not included in Part II of the Indian
Constitution, which guarantee certain fundamental rights.
yet this Court starting from the Kerala Education Eill’s
case. Which is the locus classicus on the point in issue,
right up to the case of The Ahmedabad St. Xaviers College
Society & Anr, etc. v. State of Gujarat & Anr. and ending
with All Sainis High School, Hyderabad & Ors. v. Government
of
415
Andhra Pradesh & Ors. has clearly recognised that running of
minority institutions is also as fundamental and important
as the rights conferred on the other citizens of the
country. Perhaps the only difference is that the rights
contained in Art. 30 have an independent sphere of their
own. A close scrutiny and study of the various decisions of
this Court reveal that the freedoms guaranteed by Art. 30
are also elevated to the status of a full-fledged
fundamental right within the field in which they operate. In
other words, any State action which in any way destroys,
curbs or interferes with such rights would be violative of
Art. 30.
In the instant case we are mainly concerned with the
rights, privileges and status of minority institutions. In
dwelling on these matters four important aspects or facets
have been considered by this Court, viz.:
(1) right of the minority institutions to get aid from
the Government,
(2) right to get affiliation from the Universities,
(3) nature and extent of the autonomy which such
institutions enjoy in their internal discipline
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and administration, and
(4) right to be protected from undue or repeated
interference in the independence of the
institutions in the garb of achieving excellence
in the standard of education.
The first question to be determined is whether the
minority institutions have a fundamental right to get aid
from the Government or affiliation from the Universities as
a matter of course. In other words, the question posed is
whether the right to affiliation or to not so as to violate
Art. 30. Technically speaking the answer to this question is
in the negatives but it must be stressed that the refusal to
give aid or affiliation by the statutory authorities without
just and sufficient grounds amounts to violation of the
fundamental freedoms enshrined in Art 30 of the
Constitution. If the Government withholds giving aid or a
university refuses to grant affiliation, the direct
consequence would be to destroy the very existence of the
Institution itself because there may be a number of minority
institutions which may not exist without the Government aid
and a large
416
number of students admitted to these institutions, in the
absence of affiliation, will be deprived of acquiring higher
academic status which will not only be a loss to the
institution but a loss to the nation itself. It is for this
purpose that Art, 30 was inserted in the Constitution.
In the present case, we would like to confine our
judgment only to the question of refusal of affiliation to a
minority institution by the State and the University. To
begin with, in Kerala Education Bill’s case (supra), Das,
C.J.. speaking for the majority (Venkatarama Aiyar, J.
having given his separate judgment) observed thus;
"The minorities evidently desire that education should
be imparted to the children of their community in an
atmosphere congenial to the growth of their culture.
Our Constitution makers recognised the validity of
their claim and to allay their fears conferred on them
the fundamental rights referred to above ... They also
desire that scholars of their educational institutions
should go out in the world well and sufficiently
equipped with the qualifications necessary for a useful
career in life. But....... the scholars of unrecognised
schools are not permitted to avail themselves of the
opportunities for higher education in the University
and are not eligible for entering the public services.
Without recognition, therefore, the educational
institutions established or to be established by the
minority communities cannot fulfil the real objects of
their choice and the rights under Art, 30 (1) cannot be
effectively exercised. The right to establish
educational institutions of their choice must,
therefore, mean the right to establish real
institutions which will effectively serve the needs of
their community and the scholars who resort to their
educational institutions. There is, no doubt, no such
thing as fundamental right to recognition by the State
but to deny recognition to the Educational institutions
except upon terms tantamount to the surrender of their
constitutional right of administration of the
educational institutions of their choice is in truth
and in effect to deprive them of their rights under
Art. 30(1). We repeat that the legislative power is
subject to the fundamental rights and the legislature
cannot indirectly take away or abridge the fundamental
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rights which it could not do directly and yet that will
be the result if the said Bill containing any offending
clause becomes law."
(Emphasis ours)
The observations and the ratio of this case were fully
affirmed
417
and expounded by this Court in a 9-Judge Bench decision in
St. Xaviers College case (supra) where all the Judges
speaking in the same strain held that withholding of aid or
affiliation in such a manner as to destroy or efface the
autonomy and individuality of a minority institution
violates Art. 30. In this connection, the Judges by separate
judgements made the following observations:-
"The consistent view of this Court has been that there
is no fundamental right of a minority institution to
affiliation. An explanation has been put upon that
statement of law. It is that affiliation must be a real
and meaningful exercise for minority institutions in
the matter of imparting secular education. Any law
which provides for affiliation on terms which will
involve abridgement of the right of linguistic and
religious minorities to administer and establish
educational institutions. of their choice will offend
Article 30 (1). The educational institutions set up by
minorities will be robbed of their utility if boys and
girls cannot be trained in such institutions for
University degrees. Minorities will virtually lose
their right to equip their children for ordinary
careers if affiliation be on terms which would make
them surrender and lose their rights to establish and
administer educational institutions of their choice
under Article 30........The establishment of a minority
institution is not only ineffective but also unreal
unless such institution is affiliated to a University
for the purpose of conferment of degrees on students.
........... ............ ..........
Affiliation of minority institutions is intended
to ensure the growth and excellence of their children
and other students in the academic field. Affiliation
mainly pertains to the academic and educational
character of the institution."
(Ray, C.J.)
"We agree with the judgment of Hon’ble the Chief
Justice just pronounced and with his conclusions that
ss. 40, 41, 33A(1) (a), 33A(1)(b), 51A and 52A of the
Act violate the fundamental rights of minorities and
cannot, therefore, apply to the institutions
established and administered by them.
............... ............ ........
The right under Art. 30 cannot be exercised in
vacuo. Nor
418
would it be right to refer to affiliation or
recognition as privileges granted by the State. In a
democratic system of Government with emphasis on
education and enlightenment of its citizens, there must
be elements which give protection to them. The
meaningful exercise of the right under Art. 30(1) would
and must necessarily involve recognition of the secular
education imparted by the minority institutions without
which the right will be a mere husk. This Court has so
far consistently struck down all attempts to make
affiliation or recognition on terms tantamount to
surrender of its rights under Art. 30(1) as abridging
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or taking away those rights. Again as without
affiliation there can be no meaningful exercise of the
right under Art. 30(1), the affiliation to be given
should be consistent with that right. nor can it
indirectly try to achieve what it cannot directly do."
(Jaganmohan Reddy, J.)
I am of the view that it is permissible for the
State to prescribe reasonable regulations like the one
to which I have referred earlier and make it a
condition precedent to the according of recognition or
affiliation to a minority institution. It is not,
however, permissible to prescribe conditions for
recognition or affiliation which have the effect of
impairing the right of the minority to establish and
administer their educational institutions. Affiliation
and recognition are, no doubt, not mentioned in article
30(1) position all the same remains that refusal to
recognize or affiliate minority institutions unless
they (the minorities) surrender the right to administer
those institutions would have the effect of rendering
the right guaranteed by article 30(1) to be wholly
illusory and indeed a testing illusion.
........... .............. ...........
What is said above with regard to aid or
recognition applies equally to affiliation of a college
to the University because but for such affiliation the
student will not be able to obtain a University degree
which is recognized as a passport to several
professions and future employment in Public Service.
........... ............ .........
If the conversion of affiliated colleges of the
minorities
419
into constituent colleges contravenes article 30(1),
the fact that such conversion is in pursuance of a
scheme which permits the grant of autonomy to an
individual college would not prevent the striking down
of the impugned provision."
(Emphasis ours)
(Khanna, J.)
"Over the year, this Court has held that without
recognition or affiliation, there can be no real or
meaningful exercise of the right to establish and
administer educational institutions under Article
30(1).
........ .......... ............
The heart of the matter is that no educational
institution established by a religious or linguistic
minority can claim total immunity from regulations by
the legislature or the university if it wants
affiliation or recognition; but the character of the
permissible regulations must depend upon their purpose.
As we said, such regulations will be permissible if
they are relevant to the purpose of securing or
promoting the object of recognition or affiliation."
(Mathew, J.)
"It is true that, if the object of an enactment is
to compel a minority Institution, even indirectly, to
give up the exercise of its fundamental rights, the
provisions which have this effect will be void or
inoperative against the minority Institution, The price
of affiliation cannot be a total abandonment of the
right to establish and administer a minority
Institution conferred by Art, 30(1) of the
Constitution. This aspect of the matter, therefore,
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raises the question whether any of the provisions of
the Act are intended to have that effect upon a
minority Institution. Even if that intention is not
manifest from the express terms of statutory
provisions, the provisions may be vitiated if that is
their necessary consequence or effect."
(Beg, J.)
"However, in case of an affiliating University
affiliation cannot be denied to a minority institution
on the sole ground that it is managed by a minority
whether based on religion or language or on arbitrary
or irrational basis. Such a denial would be violative
of Arts. 14 and 15(1) and will be struck
420
down by courts. Again, Art, 13(2) prohibits the State
from taking away or abridging the right under Art,
30(1). Since the State cannot directly take away or
abridge a right conferred under Art. 30(1), the State
cannot also indirectly take away or abridge that right
by subjecting the grant affiliation to conditions which
would entail the forbidden result."
(Diwedi, J.)
On a careful and detailed review of the cases cited
above, the following position emerges;
(1) that while Art, 30 undoubtedly seeks to preserve
the religious freedom, autonomy and its
individuality; there is no fundamental right under
which an institution can claim either aid or
affiliation as a matter of right. It is
permissible for the State or the University, as
the case may be, to lay down reasonable conditions
to maintain the excellence of standard of
education but in the garb of doing so, refusal to
grant affiliation cannot be made a ruse or pretext
for destroying the individuality and personality
of the said institution. If this is done, then
apart from being wholly arbitrary and unreasonable
it would amount to a clear infraction of the
provisions of Art, 30 because what cannot be done
directly is done indirectly.
(2) While the State or a University has got an
absolute right to insist on certain courses of
study to be followed by institutions before they
could be considered for affiliation but these
conditions should not in any way take away the
freedom of management or administration of the
institution so as to reduce it to a satellite of
the University or the State. This is wholly
impermissible because such a course of action
directly violates Art. 30 of the Constitution.
(3) While imposing conditions before granting
affiliation, as indicated above, the State or the
University cannot kill or annihilate the
individuality or personality of the institution in
question by insisting on following a particular
kind of syllabus or a course of study which may be
directly opposed to the aims, objects and ideals
sought to be achieved by the institutions.
421
(4) There is a very thin line of distinction between
withholding of affiliation for a particular
purpose on extraneous grounds so as to subject the
institution to rigorous orders, edicts or
resolutions which may run counter to the dominant
purpose for which the institution has been
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founded, and insisting on genuine and reasonable
conditions to be imposed in the larger interest of
education.
Thus, all the authorities mentioned above clearly laid
down that (while affiliation itself may not be a fundamental
right but refusal of affiliation on terms and conditions or
situations which practically denies the progress and
autonomy of the institution is impermissible as being
violative of Art. 30 of the Constitution.) It is not
necessary for us to dwell on the other aspects of the matter
because we are not concerned with them in this particular
case.
We now proceed to discuss the facts of the present case
which, we are constrained to observe, reveal a most
distressing and disturbing attitude exhibited by the
University and the Government of Bihar as well. In fact, the
reason and the motive for refusing affiliation to the Milli
Talimi Mission Bihar, Ranchi are so obvious and manifest
that even the Standing Counsel for the State of Bihar,
despite his best efforts, found himself unable to support
the action of the University. We are indeed amazed how the
respondents have behaved in filing their affidavits in the
highest court of the land and have violated the express
orders of this Court with impunity. In order to buttress
what we have said, it may be necessary to give a short
history of the Institution in question.
The Institution in dispute, Milli Talimi Mission Bihar,
Ranchi, was started as a Teachers Training College under a
Society which was established as for back as 1972, though
the College itself was established and started in July 1977.
On 22.9.1977 the Institution made an application to the
Government for grant of affiliation or recognition of the
same in response to which a most extraordinary order was
passed by the Government directing the Universities for
refusing affiliation on the strange ground that all
proposals for affiliation by the Non-Government Teachers
Training Colleges be rejected and that no student be allowed
to appear as a private candidate. However, in the case of
minority institutions the State Government in sub-para (3)
of paragraph (1) stated thus:
422
"(3) The above decision as described vide decision nos.
(1) and (2) above shall not be applicable in cases of
colleges run by the minority community. Government
decision in this regard to their cases shall be
intimated separately."
In view of the above, it was incumbent on an
institution to prove that it was a minority institution
before it could be granted affiliation. Thereafter, on
24.2.1978 the appellants filed an application before the
Ranchi University for grant of affiliation. This was
followed by issue of Bihar non-Government Teachers Training
College Ordinance on June 5, 1978. On June 15, 1978 the
Government wrote to the Ranchi University for inspection of
the appellant’s College. On 13.8.1979 the Government
notified that the decision regarding affiliation would be
governed by its circular dated 1.10.1973 (Annexure B), which
laid down certain conditions for grant of affiliation, and
that with regard to the minority institutions a final
decision would be taken later. Thereafter, a writ was filed
in the Patna High Court where it was decided that section 2
of the Ordinance, referred to above, would not apply to
minority training colleges. On 6.2.1980 Joint Secretary to
the Government of Bihar sent letters to the Ranchi
University and the Deputy Commissioner, Ranchi for
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inspection of the appellants’ college. It would appear that
although the Institution applied for affiliation in 1977 and
claimed to be a minority institution, which was never
disputed at any point of time, yet it took three years for
the Government to take a decision about affiliation of the
appellant’s college.
On 5.3.1980, the University authorities inspected the
appellants’ college and recommended its affiliation which
was followed by a report by the District Development
Officer, Ranchi on 30.6.1980 recommending affiliation. But,
despite these facts no final decision was taken by the
Government as a result of which the appellants had to move
the High Court again for directing the Government to grant
affiliation and the High Court gave a direction to the
Government to decide recognition and affiliation of the
appellants’ college within a specified time. On 3.11.80, the
Government granted recognition and approval for affiliation
for three sessions only, i.e., 1977-78, 1978-79 and 1979-80.
On 10.11.1980, the University wrote to the Government
recommending grant of affiliation to the appellants’
college. On 22.11.1980, the appellants applied for grant of
permanent affiliation. But, somehow or the other, on
27.11.80, for undisclosed reasons,
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the Government passed a strange order cancelling the
recognition and approval for affiliation granted to the
appellants’ college vide its letter dated 3.11.80. This
order was challenged before the High Court which quashed the
same on 18.5.81.
Thereafter, on 17.8.81 the State of Bihar filed a
special leave petition before this Court which was dismissed
on 30.11.81. However, on 7.9.81 three minority colleges,
alongwith the appellants’ college, were granted recognition
and affiliation by the Government.
Ultimately, the High Court had to be moved again which
directed the State Government to dispose of the application
of the appellants for permanent recognition which was filed
by them on 22.11.80. On 16.9.82, the Education Commissioner,
Bihar again, made a recommendation for grant of affiliation
to the appellants’ college, which may be extracted thus:
"In this connection the notings of the Joint Secretary
may kindly be seen at pages 62-64. Also the Judgment of
the High Court be seen at page 137 according to which
the restrictions of the Ordinance is not applicable to
Minorities Institutions. In addition to this, this
institution has also been got inspected in which the
local authorities were present. There is unanimous
recommendation that this training institution be
affiliated. The recommendation of the University may
kindly be seen at p. 150. Accordingly, this college be
temporarily granted recognition and affiliation for the
sessions 1980-81 to 1982-83 for the present."
A perusal of the above recommendation shows that the
Institution in question was inspected in the presence of the
local authorities as also the University authorities who
unanimously recommended that the Institution was a minority
institution and should be granted affiliation and
recognition at least for the session 1980-81 to 1982-83
Despite this, nothing tangible seems to have happened which
compelled the appellants to file another writ petition in
the High Court on 3.5.1983 for examination of the students
of the appellants’ college who had passed the 1982-83
session. But the writ petition was dismissed by the High
Court in limine. Hence, this appeal by special leave to this
Court.
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After leave was granted we directed the respondents to
produce Ex. J. (Education Commissioner’s recommendation) and
the data on
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the basis of which the concerned authorities had recommended
that affiliation should be granted to the appellants college
but till today no attempt has been made to produce those
documents and the learned counsel for the State of Bihar was
unable to give any explanation for this most extraordinary
action on the part of the State Government.
The State has filed an affidavit raising all sorts of
pleas which could not be supported by the counsel for the
State. It would appear that practically no reasons were
given by the State as to why despite the recommendations of
several authorities, which were made after a full and proper
inspection, the affiliation was refused. In paragraph 7 of
one of the affidavits filed by the respondents it is
mentioned that before grant of affiliation, the following
conditions must be fulfilled by an institution:-
(a) that there must be full-time qualified Principal
and Lecturers in proportion of 1: 15;
(b) the institution must have a recognised High School
attached to it;
(c) it must have sufficient land of its own to provide
adequate accommodation for classrooms, hostels,
play-grounds, residences of lecturers, gymnasium,
canteen, etc., and the college must run during the
day time like the schools;
(d) the admission registers, attendance registers to
be properly maintained;
(e) that in no case it will charge capitation fee or
any tuition fee from students.
(f) that there should be residential accommodation for
at least one-fourth of the staff.
(g) that hostel accommodation to at least one-fifth of
the students is provided;
(h) that there should be a stable source of income to
run the college."
It is manifest that if these conditions were fulfilled
then affiliation could be granted as a matter of course on
the findings and decision taken by the Government itself. In
reply to the affidavit filed by the
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appellants, the defence of the State was that after
inspection of the Institution it was found by a team of
Inspectors that the Institute suffered from the following
infirmities:-
"(i) There were no full-time qualified Principal or
Lecturers.
(ii) That there was no recognised school attached to
it.
(iii) The college runs during evening hours which makes
impracticable for practice classes in schools
which run during day time.
(iv) The college had no building of its own.
(v) The library and laboratory were not properly
maintained."
It is rather strange that while a previous expert
Committee after inspecting the said Institute found it in
order but subsequently the Government without referring to
the data submitted by the expert Committee, which was the
basis of Ex. J. seems to have suddenly given a go-bye to the
same and taken the defence that in view of the defects and
non-fulfilment of the conditions it was not possible to
grant affiliation without even mentioning in what manner and
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to what extent the recommendation of Education Commissioner
and the materials on which it was based was wrong and why
the five new conditions were sought to be imposed.
Despite repeated orders of this Court to the
respondents to produce the report of the Education
Commissioner and the details thereof, the same was not done
and a belated attempt was made to show that there were
certain defects in the Institution. In view of the non-
production of the most important and decisive material we
are unable to accept the subsequent affidavit of the
respondents which is nothing but an afterthought.
The State Government in its counter-affidavit has
stated that it was prepared to grant affiliation to the
appellants’ college on fulfilling certain conditions. We are
however, satisfied that this is nothing but a pretext or a
smoke-screen to cloud the real issue. Indeed, if the
Government meant business it should have the courage to
produce the report on which Ex. J. was based, which has been
deliberately suppressed despite our orders to produce the
same. We are, therefore, compelled to draw an adverse
inference against the State
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Government to the effect that if the materials on which
the report was based had been produced it would have
exploded the case of the Government and disclosed the real
state of affairs, viz, that the appellants Institute does
fulfil all the conditions imposed by the State.
Thus, the position is that the State has refused to
grant affiliation on purely illusory grounds which do not
exist and failed to consider the recommendation of the
Education Commissioner which was made after full inspection
for grant of affiliation. In other words, the affiliation
was refused without giving any sufficient reasons and such a
refusal contravenes the provisions of Art. 30 of the
Constitution.
For the reasons given above, we find that this is a fit
case where this Court should step in to strike down the
Government action which is violative of Art. 30 of the
Constitution and which does not fall within the guidelines
indicated in the various authorities cited in our judgment.
The heart of the matter is that as the Government did not
like the recommendation of the Education Commissioner and
was not prepared to grant affiliation for undisclosed
reasons, the act of the Government was a colourable exercise
of jurisdiction which deprived the appellants’ Institution
of its constitutional rights.
Normally, this Court does not grant costs in such cases
but having regard to the manner in which the State
Government has behaved and exhibited its reluctance to
perform a constitutional duty and has also tried to disobey
our orders for production of certain documents, we must
impose a heavy cost on the State.
We, therefore, allow this appeal with costs quantified
at Rs. 5,000 (Rupees five thousand only) to be paid to the
appellants within three months from today, set aside the
Order of the High Court dismissing the writ petition in
limine as also the Order of the Government refusing
affiliation and peremptorily direct the Government to grant
affiliation to the appellants’ college and allow its
students of the 1980-81.1981-82 and 1982-83 sessions to sit
in the examination, both written and practical, as the case
may be. We would, however, like to add that if there are
cogent reasons and sufficient material before the State or
the University to show that the appellants’ Institute has
not fulfilled the conditions which may be imposed hereafter,
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it is open to it to withdraw the affiliation provided the
conditions imposed are reasonable and justifiable.
427
SABYASACHI MUKHARJI, J. I agree with the order proposed
by my learned brother Justice Fazal Ali. For the purpose of
disposing of this appeal, it is sufficient to state that on
the 5th March, 1980 the university authorities inspected the
appellants’ college and recommended its affiliation which
was followed by a report by the Government on 30 June. 1980
recommending affiliation. But despite these, no final
decision was taken by the Government as a result of which
the appellants had to move the High Court for directing the
Government to decide recognition and affiliation of
appellants’ college within a specified time. On 3rd
November, 1980 the Government granted recognition and
approval for affiliation for three sessions namely 1977-78,
1978-79 and 1979-80. On the 10th November, 1980, the
University wrote to the Government recommending grant of
affiliation. On 22nd November, 1980, the appellants applied
for grant of permanent affiliation. But the Government on
27th November, 1980 passed an order cancelling the
recognition and approval for affiliation granted to the
appellants’ college vide its letter dated 3rd November,
1980. This order was challenged before the High Court. The
High Court quashed the said order dated 27th November, 1980
on 18th May, 1981. On the 17th August, 1981, the State of
Bihar filed a special leave petition before this Court which
was dismissed on 30th November, 1981. The High Court was
moved again for directing the State Government to dispose of
the application of the appellants for permanent recognition
which was filed by them on 22nd November, 1980. On the 16th
September, 1982 the Education Commissioner Bihar again made
a recommendation for grant of affiliation to the appellants’
college the extract from which has been set out in the
judgment of my learned brother. In the recommendation, the
education Commissioner recommended that the college be
temporarily granted recognition and affiliation for the
sessions 1981-82 and 1982-83 for the present. Another writ
petition thereafter was filed and nothing happened for the
examination of the students of the appellants’ college who
had passed the 1982-83 session. But this writ petition was
dismissed by the High Court in limine. This appeal arises
out of the said order.
There were certain data which were gathered by the
expert committee and were the basis of Ex. J. There was a
previous order for the production of Ex. J. That has not
been produced and no explanation has been given. I agree
with my learned brother that from the affidavits it is clear
that practically no reasons have been given by the State as
to why despite the recommendations of several authorities
which were made after a full and proper inspections, the
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affiliation was refused. The government had stated that if
certain conditions were fulfilled then there was no
objection to the granting of affiliation. It is not clear
from the records produced and also from the inferences drawn
from the non-production of the records i.e., from Ex. J.
that these conditions have not been substantially fulfilled.
It appears, therefore, and I agree respectfully with my
learned brother that no cogent or proper reasons have been
placed before us to indicate why appellants have not been
placed before us to indicate why appellants have not been
granted affiliation and why the recommendations and reasons
of the Education Commissioner for grant of affiliation to
this college were not properly considered.
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It is manifest from paragraph 7 of the affidavits filed
by the respondents that before grant of affiliation, certain
conditions were required to be fulfilled by the institution.
These conditions have been mentioned in the judgment of my
learned brother. It further appears from the affidavits
filed by the appellants that the defence of the State was
that five conditions were found not fulfilled after
Inspection by a team of inspectors. I agree that it is
strange that while previous Expert Committee after
inspecting the institute found it to be in order but
subsequently the government, without referring to the data
submitted by the Expert Committee, appears to have taken
this view about non-fulfilment of certain conditions. No
cogent materials or reliable evidence were produced before
us that there was any proper inspection and as a fact the
five alleged defects were there. I agree that in the context
of the facts of this case and further in the context of non-
production of Ex. J., the alleged plea of non-fulfilment of
certain conditions was a pretext. In the premises, the
government action in not granting affiliation in the
background of the facts and circumstances of this case is
action based without reason and is an act of arbitrariness.
On this ground alone I agree with the order proposed by my
learned brother. As I find the action of the respondents is
arbitrary and unreasonable, it is not necessary for me to
express my views on Article 30 of the Constitutions it this
case. Article 30 was engrafted for the High and Nobel
purpose of safeguarding and protecting the rights of
minorities to establish and administer educational
institutions. In this case I do not find that in not
granting affiliation to the appellants’ college there was
any discrimination as such against any educational
institution on the ground that it was under the management
of any minority whether based on religion or language. It
was inaction or an act of arbitrariness on the part of the
authorities. From such unreasonable and arbitrary actions or
inactions, institutions
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educational or otherwise, belonging both to the majority or
minority communities often suffer and in appropriate cases,
courts should grant relief without aid or recourse to the
articles of the Constitution protecting the freedom and
rights of the minorities. I do not find in this case any
evidence or even any serious allegation that affiliation was
being denied to the appellants’ institution on the ground
that it was a minority institution.
I agree with great respect with the order proposed by
my learned brother, Fazil Ali, J.
S.R. Appeal allowed.
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