Rev. Father W. Proost & Ors Vs.
The State of Bihar & Ors  INSC 217 (13 September 1968)
13/09/1968 HIDAYATULLAH, M. (CJ)
HIDAYATULLAH, M. (CJ) SHAH, J.C.
CITATION: 1969 AIR 465 1969 SCR (2) 73
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)
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).
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 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
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 74 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,  S.C.R.
995, Rev. Sidhajbhai Sabhai and Ors. v. State
of Bombay and Anr.  3 S.C.R. 837, 850; considered.
ORIGINAL JURISDICTION: Wilt Petition No. 1 of
Petition under Art. 32 of the Constitution of
India for the enforcement of the fundamental rights.
M.C. Setalvad and R. Gopalakrishnan for the
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
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.
"(i) The Superior Regular of Ranchi
Jesuit Mission --President ex-officio.
75 (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
(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
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, 76 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
(5) Other terms and conditions of service of
the Chairman members and the Secretary shall be determined by the State
(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
(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 77 governing body appoint a person who is not recommended by the
(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 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
This provision completely. takes away the
autonomy of the Governing Body of the College and virtually vests the control
of 78 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
"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
(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
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;
(c) Home address;
(d) Previous appointment held by them, if
(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 79 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.
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 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
(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
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.
81 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
"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)  S.C.R. 995.
82 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, 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 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)
 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
R.K.P.S. Petition allowed.