Full Judgment Text
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PETITIONER:
REV. FATHER W. PROOST AND ORS.
Vs.
RESPONDENT:
THE STATE OF BIHAR & ORS.
DATE OF JUDGMENT:
13/09/1968
BENCH:
HIDAYATULLAH, M. (CJ)
BENCH:
HIDAYATULLAH, M. (CJ)
SHAH, J.C.
RAMASWAMI, V.
MITTER, G.K.
GROVER, A.N.
CITATION:
1969 AIR 465 1969 SCR (2) 73
CITATOR INFO :
RF 1970 SC 259 (20)
R 1970 SC2079 (10)
RF 1971 SC1737 (7)
D 1974 SC1389 (11,24,83,97,103)
RF 1975 SC1821 (23)
RF 1979 SC 52 (39)
R 1979 SC 83 (5)
RF 1980 SC1042 (2,35,81,94,108)
RF 1988 SC 305 (7)
ACT:
Constitution of India, Articles 29(1) and 30(1)-Whether
minority can only claim protection under Art. 30(1) in
furtherance of rights under Art. 29(1).
HEADNOTE:
The St. Xavier’s College was established by the Jesuits of
Ranchi and was affiliated to Patna University in 1944. The
management of the College was in the hands of a governing
body consisting of 11 members. The terms of service of the
religious staff of the College were determined by the Jesuit
Mission authorities and those of the lay staff, including
their appointment, were determined by the governing body of
the College. The object of rounding the college inter alia
was "to give Catholic youth .a full course of moral and
liberal education, by imparting a thorough religious
instruction and by maintaining a Catholic atmosphere in the
Institution". However, the college was open to non-
Catholics and all non-catholic students received a course
of moral science.
The petitioners in the present petition under Article 32
contended that the college was rounded by a Christian
minority and claimed the right to administer it as a
constitutional right guaranteed to minorities by Art. 30.
The petitioner’s complaint was that the Bihar Legislature,
by introducing s. 48-A in the Bihar Universities Act with
effect .from March 1, 1962, deprived them of the right under
Art. 30 in that Its provisions required, inter alia: that
appointments, dismissals, reduction in rank, etc., of staff
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must be made by the Governing body on the recommendation of
the University Service Commission for affiliated colleges;
in no case could the Governing body appoint a person not
recommended by the Commission; the Commission had to be
consulted in all disciplinary matters and any punishment
imposed on a teacher only in accordance with the findings of
the Commission, etc. Subsequent to the introduction of
s. 48-A, in view of differences arising between the
University and the college, the University withdrew the
affiliation of the college on September 26, 1967 for
violating the provisions of the Act and the statute of the
University.
While the present petition under Art. 32 of the
Constitution was pending s. 48-B was inserted into the Bihar
Universities Act whereby it was provided that the Governing
body of affiliated colleges established by a minority based
on religion or language which .the minority had a right to
administer, would be entitled to make appointments,
dismissals, termination of service or reduction in rank of
teachers or take other disciplinary measures subject only to
the approval of the Commission and the Syndicate of the.
University. The petitioners therefore also claimed the
protection of s. 48-B.
On behalf of the respondents it was conceded that the
Jesuits answered the description of a minority based on
religion; but it was contended that as the protection to
minorities in Art. 29(1) is only a right to conserve a
distinct language, script or culture of its own, the college
did not qualify for the protection of Art. 30(1) because
(i) it was not bounded
Sup. CI/69-6
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to conserve them and (ii) it was open to all sections of the
people. The question therefore was whether the college:
could only claim protection of s. 48-B of the Act read with
Art. 30(1) of the Constitution if it proved. that it was
furthering the rights mentioned in Art. 29(1).
HELD: The protection claimed by the petitioners clearly
flowed from the words of Article 30(1).
The width of Art. 30(1) cannot be cut down by
introducing in it considerations on which Art. 29(1) is
based. The latter article is a general protection which
is given to. minorities to, conserve their language, script
or culture. The former is a special right to minorities to
establish educational institutions of their choice. This
choice is not limited to institutions seeking W conserve
language, script or culture and the choice is not taken away
if the minority community having established an educational
institution of its choice also admits members of other
communities. This is a circumstance irrelevant for the
application of Art. 30(1) since no such limitation is
expressed and none can be implied. The two. articles
create two separate rights, although it is possible that
they may meet in a given case. [80 G, H]
In re the Kerala Education Bill, 1957, [1959] S.C.R.
995, Rev. Sidhajbhai Sabhai and Ors. v. State of Bombay and
Anr. [1963] 3 S.C.R. 837, 850; considered.
JUDGMENT:
ORIGINAL JURISDICTION: Wilt Petition No. 1 of 1968.
Petition under Art. 32 of the Constitution of India for
the enforcement of the fundamental rights.
M.C. Setalvad and R. Gopalakrishnan for the petitioners.
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C.K. Daphtary, Attorney-General and U.P. Singh, for
respondents No. 1 and 4.
P.K. Chatterjee, for respondent No. 3. R. Gopalakrishnan,
for the interveners.
The Judgment of the Court was delivered by
Hidayatullah, C.J. The Principal and the Rector of St.
Xavier’s Co,liege, Ranchi and two parents of students have
filed the present petition under Art. 32 of the
Constitution. The petition also purports to be filed on
behalf of St. Xavier’s College, Ranchi and the Association
of St. Xavier. The petitioners challenge s. 48-A of the’
Bihar State Universities (University of Bihar, Bhagalpur and
Ranchi) Act, 1960 as amended by Second Amendment Act, 1961
as ultra vires Arts. 29 and 30 of the Constitution.
St. Xavier’s College was established by the Jesuits of
Ranchi. It was affiliated to Patna University in 1944. The
management of the college vests in a Governing Body
consisting of 11 members. They are:
"(i) The Superior Regular of Ranchi Jesuit Mission
--President ex-officio.
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(ii-v) Four Counsellors to the Superior
Regular to be nominated by the Jesuit Mission
authorities.
(vi) The Principal of the
College--Vice-President and Secretary ex-
officio.
(vii) One representative of the
teaching staff of the college elected by the
members of the staff.
(viii) One representative of the Patna
University.
(ix-xi) Three persons to represent Hindu,
Muslim and Aboriginal interests."
The terms of service of Religious staff are determined by
the Jesuit’ Mission Authorities, but those of the members of
the Lay staff including their appointment are determined by
the Governing Body. All appointments to. the teaching
staff, both Religious and Lay are reported to the Syndicate
of the Patna University. The object of rounding the college
inter alia is ’to give Catholic youth a full course of moral
and liberal education, by imparting a thorough religious
instruction and by maintaining a Catholic atmosphere in
the. institution.’ The college is, however, open to all
non-catholic students. All non-catholic students receive
a course of moral science.
The College was thus rounded by a christian minority and
the petitioners claim they have a right to. administer it, a
constitutional right guaranteed to minorities by Art. 30.
The petitioners’ complaint is that the Bihar Legislature
passed an amending Act and introduced in the Bihar
Universities Act s. 48-A to come into force from March 1,
1962, which deprives them of this protection and is,
therefore, ultra vires. The provisions of this section are
as follows:--
"48˜A. Establishment of a University
Service Commission for affiliated colleges not
belonging to the State Government and. its
powers and functions :-
(1 ) With effect from such date as the
State Government may, by notification in
the Official Gazette, appoint, there shall
be established a Commission by the name of
the University Service Commission.
(2) The said Commission shall be a body
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corporate having perpetual succession. and a
common seal, and shall by the said name sue
and be sued.
(3) The commission shall consist of a
Chairman and two other members to be appointed
by the State Government who shah be whole time
officers,
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and shall hold office for a term of three
years from the date of assumption of charge of
office, on the expiration of which term they,
or any of them, may be reappointed for only
one more term which shall not exceed three
years.
(4) There shall be a Secretary to the
Commission who shall also be a whole-time
officer to be appointed by the State
Government.
(5) Other terms and conditions of service of
the Chairman members and the Secretary shall
be determined by the State Government.
(6 ) Subject to the approval of the
University, appointments, dismissals, removals
termination of service or reduction in rank of
teachers of an affiliated college not
belonging to the State Government shall be
made by the governing body of the college on
the recommendation of the Commission.
(7) (i)In making recommendations for
appointment to every post of teacher of any
such affiliated college, the Commission shall
have the assistance of two experts in the
subject for which an appointment is to be
made, of whom one shall whenever possible be a
teacher of the University to be nominated
by the Syndicate and the other shall be a
person, other than a teacher of the
University, to be nominated by the Academic
Council.
(ii) The experts shall be associated with the
Commission as assessors whose duty it shall be
to give expert advice to the Commission but
who shall have no right to vote.
(8) The Commission shall, wherever feasible,
recommend to the governing body of a college
for appointment to every post of teacher of
the college names of two persons arranged in
order of preference and considered by the
Commission to be the best qualified’
therefore.
(9) In making appointment to a post of teacher
of a college, the governing body of the
college shall, within three months from the
date of the receipt of the recommendation
under sub-Section (8), make its selection out
of the names recommended by the Commission,
and in no ease shall the
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governing body appoint a person who
is not recommended by the Commission.
(10) Notwithstanding anything contained
in the preceding sub-sections, it shall not be
necessary for the governing body to consult
the Commission if the appointment to a post of
teacher is not expected to continue for more
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than six months and cannot be delayed without
detriment to the interest of the College:
Provided that if it is proposed to
retain the person so appointed in the
same post for a period exceeding six
months or to appoint him to another post in
the college the concurrence of the
Commission shall be necessary in the absence
of which the appointment shall be deemed to
have been terminated at the end of six
months.
(11) (ii) The Commission shall be
consulted by the governing body of a college
in all disciplinary matters affecting a
teacher of the college and no memorials or
petitions relating to such matters shall be
disposed of nor shall any action be taken
against, or any punishment imposed on, a
teacher of the college otherwise than in
conformity with the finding of the Commission:
Provided that it shall not be necessary to
consult the Commission where only an order of
censure, or an order withholding increment,
including stoppage at an efficiency bar, or
an order of suspension pending
investigation of charges is passed against
a teacher of a college.
(12) It shah be the duty of the Commission
to present annually to the University a report
as to the work done by the Commission in
relation to such colleges affiliated to the
University and a copy of the report shall be
placed before the Senate at its next meeting,
and the University shall further prepare
and submit to the State Government a
memorandum explaining, as respects the
cases, if any, where the advice of the
Commission was not accepted, the reasons for
such non-acceptance and the State Government
shall cause the same to be laid before the
Legislature of the State".
This provision completely. takes away the autonomy of
the Governing Body of the College and virtually vests the
control of
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the college in the University Service Commission. Long
correspondence ensued into. which it is not necessary to go
because of what followed. The University began enforcing
Article 178(2) of the New Statutes. That Article provides:
"178(1) All appointments of teachers in
admitted colleges shall be made by the
Governing Body of the college concerned on
the recommendation of the University Service
Commission, and shall be subject to the
approval of the Syndicate. No such
appointment shall be approved unless:
(a) the post exists or the Vice-Chancellor
is satisfied and its creation is necessary;
(b) the claims of teachers, possessing the
requisite qualifications and serving in a
lower grade in the college, for promotion have
been examined and rejected;
(c) the vacancy was duly advertised,
except where promotion was recommended;
(d) the person appointed possesses the
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minimum qualifications prescribed for the
post; and
(e) the appointment was made by the
Governing Body at its meeting.
(2) Within a fortnight of the
appointment of any teacher or teachers. made
by the Governing Body of any admitted college
on the recommendation of the University
Service Commission, the Secretary of the
College shall forward to the University, along
with a copy of the advertisement for the post,
the following information:
(a) Names of the candidates recommended by
the University Service Commission together
with the name or names of the candidates
appointed by the Governing Body;
(b) Age;
(c) Home address;
(d) Previous appointment held by them, if any;
(e) Whether they are qualified to teach
through the medium of Hindi;
(f) Nature of the appointment and the
vacancy against which the appointment has been
made;
(g) If the order of preference indicated
by the University Service Commission has not
been followed by the Governing Body, the
reason for not
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following the order of preference shall be
indicated. If no appointments were made
against the recommendation received from the
University Service Commission, the reason
for not making the appointments shall also be
indicated."
More correspondence followed. The University asked for an
explanation under Art. 179 of the Statutes, how the
Governing Body had by-passed the University Service
Commission and some teachers were appointed without prior
consultation. Finally the University by a letter,
September 26, 1967, communicated to the College that the
Senate had decided on September 24, 1967 to withdraw the
affiliation of the College under Article 171 of the Statutes
for violating the said provisions of the Act and the
Statutes With effect from the session of 1969-70. The
Senate, however, was: generous enough to put on record its
appreciation of the good work done by the college in the
field of education. The petition was then filed to. impugn
the offending s. 48-A.
While this petition was pending in this Court, the
Governor of Bihar promulgated an Ordinance o.n July 16,
1968. It amended the Bihar State Universities Act, 1960 by
inserting s. 48-B after s. 48-A. The new section read:
"48-B. College established and
administered by a minority entitled to make
appointments etc. with approval of the
Commission and the, Syndicate.
Notwithstanding anything contained’ in
sub-section (6), (7), (8), (9), (10) and (11)
of Section 48-A, the Governing Body of an
affiliated college established by a minority
based on religion or language, which the
minority has the right to administer, shall be
entitled to make appointments, dismissals,
removals, termination of service or reduction
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in rank of teachers. or take other
disciplinary measures subject only to the
approval of the Commission and the Syndicate
of the University".
Simultaneously the Magadh University Act, 1961 was also
similarly amended.
The petitioners, therefore, claim the protection of
section 48-B and submit that as an affiliated college
established by a minority based on religion or language,
they are exempt from the operation of s. 48-A (6), (7), (8),
(9), (10) and (11). They say that if this position is
accepted, they will withdraw the petition which has become
superfluous. now. The learned Attorney General while
conceding that the Jesuits answer the description of
minority based on religion, argues that the protection is
available only if the institution was rounded to conserve
’language, script or culture’ and since the college is open
to all sections of the people and there
80
is no programme of this kind, the protection of Article
30(1) is not available. In our opinion, this argument cannot
be accepted. Before we give our reasons we may read Arts.
29 (1 ) and 30 ( 1 ), which are involved:
"29. Protection of interests of minorities.
(1 ) Any section of the citizens
residing in the territory of India or any
p:art thereof having a distinct language,
script or culture of its own shall have the
right to conserve the same.
(2)
"30. Right of minorities to establish
and administer educational institutions.
(1) All minorities, whether based on
religion or language, shall have the right to
establish and administer educational
institutions of their choice.
The learned Attorney General seeks to read into the
protection granted by Art. 30(1) a corrollary taken from
Art. 29(1). He concedes that the Jesuits community is a
minority community based on religion and that, therefore, it
has a right to establish and administer educational
institutions of its choice. But he contends that as the
protection to minorities in Art. 29 (1 ) is only a right to
conserve a distinct language, script or culture of its own,
the college does not qualify for the protection ’of Art.
30(1) because it is not rounded to conserve them. The
question, therefore, is whether the college can only claim
protection of s. 48-B of the Act read with Art. 30(1) of the
Constitution if it proves that the college is furthering the
rights mentioned in Art. 29 (1 ).
In our opinion, the width of Art. 30(1) cannot be out
down by introducing in it considerations on which Art. 29 (1
) is based. The latter article is a general protection which
is given to minorities to conserve their language,, script
or culture. The former is a special right to minorities to
establish educational institutions of their choice. This
choice is not limited to institution seeking to conserve
language, script or culture and the choice is not taken away
if the minority community having established an educational
institution of its choice also admits members of other
communities. That is a circumstance irrelevant for the
application of Art. 30( 1 ) since no such limitation is
expressed and none can be implied. The two articles create
two separate rights, although it is possible that they may
meet in a given case.
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The learned Attorney General refers to two cases of
this. Court which he thinks support his contention. What we
find in, them does not bear out this submission. On the
other hand, they point the other way. In In re the Kerala
Education Bill, 1957(1),1 Arts. 29 and 30 were considered in
relation to an Education Bill referred by the President of
India to the Supreme Court for its advisory opinion. The
points that arose in the case were different but certain
passages from the opinion were brought to our notice. The
Court after pointing out that Arts. 29 and 30 are grouped
together under the heading "Cultural and Educational
Rights" points out that the articles are intended to confer
certain fundamental rights on certain sections of the
community which constitute minority communities. Explaining
clause (1 ) of Art. 29. this Court observed at p. 1047:
" ...... It is obvious that a minority
community can effectively conserve its
language, script or culture by and through
educational institutions and, therefore, the
right to establish and maintain educational
institutions of its choice is a necessary
concomitant to the right to conserve its
distinctive language, script or culture and
that is what is conferred on all minorities by
Art. 30(1) which has hereinbefore been quoted
in full ...... ".
The learned Attorney General arguesues that here the two
articles were read together. But the other side relies on
two other passages. The first is at page 1050. The
argument on behalf of the State there appears to be that
there are three conditions. before the protection and
privileges of Art. 30( 1 ) may be claim-
"( 1 ) there must be a minority
community, (2) one or more of the members of
that community should, after the commencement
of the Constitution, seek to exercise the
right to establish an educational institution
of his or their choice, and ( 3 ) the
educational institution must be established’
for the members of his or their own
community."
This Court repelled the contention that the protection and
privilege of Art. 30(1) extended only to the educational
institutions established after the Constitution. Dealing
with Art. 29 (1 ) this Court observed:
"The real import of Art. 29(2) and Art.
30(1) seems to us to be that they clearly
contemplate a minority institution with a
sprinkling of outsiders admitted into it. By
admitting a non-member into it the minority
institution does not shed its character and
cease to be
(1) [1959] S.C.R. 995.
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a minority institution. Indeed the object of
conservation of the distinct language, script
and culture of a minority may be better served
by propagating the same amongst non-members
of the particular minority community. In our
opinion,t it is not possible to read this
condition into Art. 30(1) of the
Constitution."
While one side considers that the observation suggests that
the two articles go together, the other side contends that
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mixing of the other communities with the minority community
in the benefits of educational institution shows that the
real test is not that there must be an institution purely of
one community. The learned Attorney General places great
importance on the word ’sprinkling’ -and says that the
minority must found the institution for itself and not for
others and the aim or object must be to conserve distinct
language, script or culture. In our opinion both sides are
attempting to read far too. much into. these observations.
They are not intended to be read in every context. On the
other hand, in Rev, Sidhaibhai Sabhai and others v. State
of Bombay and Another(1), there is the following passage
:--
" ...... The fundamental freedom is
to establish and to administer educational
institutions: it is a right to establish and
administer what are in truth educational
institutions, institutions which cater to the
educational needs of the citizens, or sections
thereof."
The emphasis here was rightly placed not upon the needs of
the community exclusively but .upon the educational needs
of the citizens or sections thereof. In other words, the
suggestion that Art. 30( 1 ) is limited to the needs of a
single community or that only its own culture, language or
script need to be provided for is not the right approach.
Here too if we may say so, the point decided was different
but the observation does make Art. 30 (1 ) much wider than
the learned Attorney General would have us hold.
In our judgment the language of Art. 30(1 ) is wide and
must receive full meaning. We are dealing with protection
of minorities and attempts to whittle down the protection
cannot be allowed. We need not enlarge the protection but we
may not reduce a protection naturally flowing from the
words. Here the protection clearly flows from the words and
there is nothing on the basis of which aid can be sought
from Art. 29 (1 ).
We are, therefore, quite clear that St. Xavier’s College
was rounded by a Catholic Minority Community based on
religion and that this educational institution has the
protection of Art. 30( 1 )
(1) [1963] 3 S.C.R. 837, 850.
83
of the Constitution. For the same reason it is exempted
under s. 48-B of the Act. The petition will therefore be
allowed with this declaration but in the circumstances of
the case we make no order about costs.
R.K.P.S. Petition
allowed.
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