The Managing Board of The Milli Talimi
Mission, Bihar, Ranch Vs. The State of Bihar & Ors [1984] INSC 139 (14
August 1984)
FAZALALI, SYED MURTAZA 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. However, 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 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] 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 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 fulfill 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
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 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 fulfill 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 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. Xavier’s 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 judgments 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 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, 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 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 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, 423 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, along with 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.
After leave was granted we directed the
respondents to produce Ex. J. (Education Commissioner's recommendation) and the
data on 424 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 425 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-fulfillment of the conditions it was not possible to grant affiliation
without even mentioning in what manner and 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 426 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 fulfill 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 here after, 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 428 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.
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 429 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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