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PETITIONER: THE MANAGING BOARD OF THE MILLI TALIMI MISSION, BIHAR,RANCHI

       Vs.

RESPONDENT: THE STATE OF BIHAR & ORS.

DATE OF JUDGMENT14/08/1984

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA VARADARAJAN, A. (J) MUKHARJI, SABYASACHI (J)

CITATION:  1984 AIR 1757            1985 SCR  (1) 410  1984 SCC  (4) 500        1984 SCALE  (2)251

ACT:      Right of  minority educational institution-Right to get affiliation  from  the  Universities-Whether  the  right  to affiliation or  to obtain  aid  from  the  Government  is  a fundamental right  so as  to violate  Article 30-Whether the refusal to  give affiliation by the statutory authorities in the instant  case without  just and sufficient cause amounts to violation  of Article 30 of the Constitution or simply an arbitrary and  illegal action-Supreme  Court can award costs against a  State for disobedience of the orders of the Court to produce  documents called  for and for failure to perform constitutional duties by institutions.

HEADNOTE:      The appellant-Institution  was started  as  a  Teachers Training College  under a  Society which  was established as far back  as 1972, though the college itself was established and started  in July 1977. On 22.9.1977 the institution made an application to the Government for grant of affiliation or recognition  of  the  same  in  response  to  which  a  most extraordinary order  was passed  by the Government directing the University  for  refusing  affiliation  on  the  strange ground that  all  proposals  for  affiliation  by  the  non- Government Teachers  Training Colleges  be rejected and that no student  be allowed to appear as a private candidate. How ever,  since  the  above  decision  was  not  applicable  to minority institutions  which  was  reiterated  by  a  latter ordinance  called  Bihar  non-Government  Teachers  Training College ordinance  on June  5, 1978, it was incumbent on the institution to  prove that  it was  a  minority  institution before it  could be  granted affiliation,  on 24.2.1978  the appellants filed an application before the Ranchi University for grant  of affiliation  on June  15, 1978, the Government wrote  to  the  Ranchi  University  for  inspection  of  the appellants college.  On 6.2.1980.  Joint  Secretary  to  the Government of Bihar sent letter to the Ranchi University and the  Deputy  Commissioner,  Ranchi  for  inspection  of  the appellants’ college.  Although the  institution applied  for affiliation in 1978 and claimed to be a minority institution which was never disputed at any point of time the Government took three years to take a decision about affiliation of the

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appellants’ college. On 5.3.1980, the University Authorities inspected  the   appellants’  college  and  recommended  its affiliation which  was followed  by a report by the District Development  officer,   Ranchi  on   30.6.1980  recommending affiliation. But,  despite these facts no final decision was taken by  the Government as a result of which the appellants had to  move the  High Court for directing the Government to grant affiliation.  On the  High Court’s  direction  to  the Government to decide recognition and affiliation 411 the  appellants’   college  within   a  specified  time,  on 3.11.1980, the  Government granted  recognition and approval for affiliation for three sessions only, i.e. 1977-78, 1978- 79 and  1979-80. On  10.11.1980, the University wrote to the Government recommending  further grant of affiliation to the appellants’ college.  On 22.11.1980  the appellants  applied for grant  of permanent  affiliation. But,  somehow  or  the other, on 27.11.1980 for undisclosed reasons, the Government passed  a   strange-order  cancelling  the  recognition  and approval for  affiliation granted to the appellants’ college vide its  letter dated  3.11.1980. This order was challenged before the  High Court  which quashed the same on 18.5.1981. Thereafter, on 17.8.1981 the State of Bihar filled a Special Leave Petition  before the Supreme Court which was dismissed on  30.11.1981.   However.  on   7.9.1981.  three   minority colleges, alongwith  the appellants’  college, were  granted recognition and  affiliation by  the Government by virtue of the High Court’s orders.      The appellants  again wrote to the High Court to direct the State  Government to  dispose of  the application of the appellants  for  permanent  recognition  filed  by  them  on 22.11.1980. On  16.9.1982. the Education Commissioner, Bihar again made  a recommendation  This recommendation  was  made after inspection  by the  Educational  Commissioner  In  the presence of  the local  authorities as  also the  University authorities and  after  coming  to  a  conclusion  that  the institution was  a minority institution. Despite this, since no action  was taken  by the  Government the appellants were compelled to file another Writ Petition in the High Court on 3.5.1983  with  a  prayer  to  allow  the  students  of  the appellants’ college to appear at the University Examination, but the  Writ Petition  was dismissed  by the  High Court in limine. Hence, the appeal by Special Leave of this Court      Allowing the appeal, the Court ^ HELD: (Per majority) Per Fazal Ali. J      1.1. Although  Article 30  of the  Constitution is  not included in  Part  III  of  the  Indian  Constitution  which guarantees certain fundamental rights, yet the Supreme Court starting from the Kerala Education Bill s case, which is the locus classicus  on the point in issue, right up to the case of The  Ahmedabad St. Xaviers College Society & Anr. etc. v. State of  Gujarat and  Anr. and  ending with All Saints High School, Hydrabad  & Ors.  v. Government  of Andhra Pradesh & Ors.  has   clearly  recognised  that  running  of  minority institutions is  also as  fundamental and  important as  the rights conferred  on the other citizens of the country, with the only  difference that the rights contained in Article 30 have  as  independent  sphere  of  their  own  The  freedoms guaranteed by  Article 30 are also elevated to the status of a full-fledged  fundamental right  within the field in which they operate.  In other words, any State action which in any way destroys,  curbs or interferes with such rights would be violative of Article 30. [414 G-H; 415 A-B]

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    1.2. Technically  speaking, the right of affiliation or aid from  the Government is not a fundamental right so as to violate  Article   30,  but  the  refusal  to  give  aid  or affiliation by  the statutory  authorities without  just and sufficient grounds  amounts to  violation of the fundamental freedoms enshrined  in Articles  30 of  the Constitution. If the Government withholds giving aid or a University 412 refuses to  grant affiliation,  the direct consequence would be to  destroy the  very existence of the institution itself because there may be a number of minority institutions which may not  exist without the Government aid and a large number of students  admitted to  these institutions, in the absence of  affiliation,   will  be  deprived  of  acquiring  higher academic status  which will  not  only  be  a  loss  to  the institution but  a loss to the nation itself. It is for this purpose that  Article 30  was inserted  in the Constitution. [415 G-H; 416 A]      Kerala  Education  Bill’s  Case  [1959]  SCR  995;  The Ahmedabad St Xaviers College Society & Anr. etc. v. State of Gujarat & Anr. [1975] 1 SCR 173; and All Saints High School. Hyderabad &  Ors. v.  Government of  Andhra Pradesh  &  Ors. (1980) 2 SCC 178 referred to.      1:3. On  a careful  and detailed  review of these cases the following position emerges:      (1) that  while Art.  30 undoubtedly  seeks to preserve the religious freedom, autonomy and its individuality; there is no fundamental right under which an institution can claim either aid  or affiliation  as a  matter  of  right.  It  is permissible for the State of the University, as the case may be, to  lay  down  reasonable  conditions  to  maintain  the excellence of standard of education but in the garb of doing so, refusal  to grant  affiliation cannot  be made a ruse or pretext for  destroying the individuality and personality of the said institution. If this is done, then apart from being wholly arbitrary and unreasonable it would amount to a clear infraction of  the provisions of Art. 30 because what cannot be done directly is done indirectly. [420 C-E]      (2) While the State or a University has got an absolute right to  insist on  certain courses of study to be followed by  institutions   before  they   could  be  considered  for affiliation but  these conditions should not in any way take away the  freedom of  management or  administration  of  the institution so  as to  reduce  it  to  a  satellite  of  the University or  the State. This is impermissible because such a  course   of  action  directly  violate  Art.  30  of  the Constitution. [420 F-G]      (3)   While   imposing   conditions   before   granting affiliation, as indicated above, the State or the University cannot kill  or annihilate  the individuality or personality of the  institution in  question by insisting on following a particular kind  of syllabus  or a course of study which may be directly  opposed to  the aims, objects and ideals sought to be achieved by the institutions. [420 H]      (4) There  is a  very thin  line of distinction between withholding of  affiliation  for  a  particular  purpose  on extraneous grounds  so as  to  subject  the  institution  to rigorous orders, edicts or resolutions which may run counter to the  dominant purpose  for which the institution has been founded, and  insisting on genuine and reasonable conditions to be imposed in the larger interest of education. [421 A-B]      While affiliation itself may not be a fundamental right but refusal  of  affiliation  on  terms  and  conditions  or situations  which   practically  denies   the  progress  and autonomy  of  the  institution  is  impermissible  as  being

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violative of Art. 30 of the Constitution. [421 C] 413      2:1. In  the instant  case, the  State has  refused  to grant affiliation  on purely  illusory grounds  which do not exist and  failed to  consider  the  recommendation  of  the Education Commissioner  which was made after full inspection for grant  of affiliation.  In other  words, the affiliation was refused without giving any sufficient reasons and such a refusal  contravenes  the  provisions  of  Art.  30  of  the Constitution. [426 G]      2:2. The belated attempt through a subsequent affidavit filed by  the State  Government  to  show  that  there  were certain defects  in the  Institution, in  view of  the  non- production of  the most  important and decisive material, is nothing but an after-thought. [425 F]      2:3.  The   State  Government’s   assurance  to   grant affiliation to  the appellants college on fulfilling certain conditions is  nothing but  a pretext  or a  smoke screen to cloud the  real issue.  The Government did not mean business by producing  a report  on which  Ex. J was based, which has been deliberately  suppressed despite  the Court’s  order to produce the  same. Therefore, an adverse inference has to be drawn against the State Government to the effect that if the materials on which the report was based had been produced it would have exploded the case of the Government and disclosed the  real  state  of  affairs  namely  that  the  appellants institute does  fulfil all  the conditions  imposed  by  the State. [425 G-H; 426 A]      3. Normally  the Supreme-Court  does not  grant cost in case of  refusal of  affiliation to  institutions but having regard to  the manner  in which  the  State  Government  has behaved  and   exhibited  its   reluctance  to   perform   a constitutional duty  and  has  also  tried  to  disobey  the Court’s  order  for  production  of  certain  documents  the instant case  is a fit case for imposing a heavy cost on the State, apart  from the  directions to the State for granting affiliation to  the appellant’s  college and  to  allow  its students of the 1980-81, 1981-82 and 1982-83 sessions to sit in the examination. [426 F-G] Per Sabyasachi Mukharji, J. (Concurring)      In the  background of  the facts  and circumstances  of this case, the Government action is not granting affiliation to the appellants college is action based without reason and is an act of arbitrariness. [428 F] (Per contra)      1. Article 30 of the Constitution was engrafted for the high and  noble purpose  of safeguarding  and protecting the rights of minorities to establish and administer educational institutions. In  this case,  in not granting affiliation to the appellants’  college there was no discrimination against any educational  institution on the ground that it was under the management  of any minority whether based on religion or language. It  was inaction or an act of arbitrariness on the part  of   the  authorities.   From  such  unreasonable  and arbitrary actions  or inactions institutions, educational or otherwise,  belonging  both  to  the  majority  or  minority communities often  suffer and  in appropriate  cases,  Court should grant  relief without aid or recourse to the articles of the Constitution protecting the freedom and rights of the minorities. In  this case  there is  no evidence or even any serious allegation  that affiliation was being denied to the appellants institution  on the ground that it was a minority institution. [428 G-H; 429 A-B] 414

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JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 404 of 1984.      Appeal by  Special leave  from the  Judgment and  Order dated the  11th July,  1983  of  the  Patna  High  Court  in C.W.J.C. No. 623 of 1983.      Dr. L.M. Singhvi, Mrs. Lakshmi Kant Pande & S.K. Sinha, for the Appellant.      D. Goverdhan & B.B. Singh for the Respondents.      The following Judgments were delivered      FAZAL ALI,  J. The  most difficult and delicate task of our founding  fathers while  framing the Constitution of the largest democracy  in the world was to protect, preserve and safeguard the  interests of  the minorities and the backward classes in  order  to  retain  the  secular  nature  of  our Constitution. Perhaps  they feared that a time may come when the overwhelming majority may overshadow or dominate, devour of destroy  the educational,  cultural and  social rights of the   minorities   and   wreck   their   individuality   and personality. It was this central theme that runs through the entire Constitution which has provided sufficient safeguards to   protect   and   preserve   the   minority   educational institutions which  is the  most important  and vocal medium through which this section of the society can speak and seek to redress its grievances.      In this  appeal we are merely concerned with the rights and obligations  of the State for the protection of minority institutions  and  for  this  avowed  purpose  Art.  30  was enshrined in  our Constitution  so that  they may not suffer from a  sense of inferiority complex and are able to through themselves  into   the  main  stream  of  the  economic  and political life  of the  country so  as to march forward with the temper of the times and the needs of the nation Although Art.  30   is  not   included  in  Part  II  of  the  Indian Constitution, which  guarantee certain  fundamental  rights. yet this  Court starting  from the  Kerala Education  Eill’s case. Which  is the  locus classicus  on the point in issue, right up  to the  case of  The Ahmedabad St. Xaviers College Society &  Anr, etc.  v. State  of Gujarat & Anr. and ending with All  Sainis High School, Hyderabad & Ors. v. Government of 415 Andhra Pradesh & Ors. has clearly recognised that running of minority institutions  is also  as fundamental and important as the  rights  conferred  on  the  other  citizens  of  the country. Perhaps  the only  difference is  that  the  rights contained in  Art. 30  have an  independent sphere  of their own. A  close scrutiny and study of the various decisions of this Court  reveal that  the freedoms  guaranteed by Art. 30 are  also   elevated  to   the  status   of  a  full-fledged fundamental right within the field in which they operate. In other words,  any State  action which  in any  way destroys, curbs or  interferes with  such rights would be violative of Art. 30.      In the  instant case  we are  mainly concerned with the rights, privileges  and status  of minority institutions. In dwelling on  these matters  four important aspects or facets have been considered by this Court, viz.:      (1)  right of the minority institutions to get aid from           the Government,      (2)  right to get affiliation from the Universities,      (3)   nature and  extent of  the  autonomy  which  such           institutions enjoy  in their  internal  discipline

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         and administration, and      (4)   right to  be protected  from  undue  or  repeated           interference   in    the   independence   of   the           institutions in  the garb  of achieving excellence           in the standard of education.      The first  question to  be determined  is  whether  the minority institutions  have a  fundamental right  to get aid from the  Government or affiliation from the Universities as a matter  of course.  In other  words, the question posed is whether the  right to affiliation or to not so as to violate Art. 30. Technically speaking the answer to this question is in the negatives but it must be stressed that the refusal to give aid or affiliation by the statutory authorities without just and  sufficient grounds  amounts to  violation  of  the fundamental  freedoms   enshrined   in   Art   30   of   the Constitution. If  the Government  withholds giving  aid or a university  refuses   to  grant   affiliation,  the   direct consequence would  be to  destroy the  very existence of the Institution itself because there may be a number of minority institutions which  may not exist without the Government aid and a large 416 number of  students admitted  to these  institutions, in the absence of affiliation, will be deprived of acquiring higher academic status  which will  not  only  be  a  loss  to  the institution but  a loss to the nation itself. It is for this purpose that Art, 30 was inserted in the Constitution.      In the  present case,  we would  like  to  confine  our judgment only to the question of refusal of affiliation to a minority institution  by the  State and  the University.  To begin with,  in Kerala  Education Bill’s  case (supra), Das, C.J.. speaking  for  the  majority  (Venkatarama  Aiyar,  J. having given his separate judgment) observed thus;      "The minorities  evidently desire that education should      be imparted  to the  children of  their community in an      atmosphere congenial  to the  growth of  their culture.      Our Constitution  makers  recognised  the  validity  of      their claim  and to allay their fears conferred on them      the fundamental  rights referred to above ... They also      desire that  scholars of their educational institutions      should go  out  in  the  world  well  and  sufficiently      equipped with the qualifications necessary for a useful      career in life. But....... the scholars of unrecognised      schools are  not permitted  to avail  themselves of the      opportunities for  higher education  in the  University      and are  not eligible for entering the public services.      Without   recognition,   therefore,   the   educational      institutions established  or to  be established  by the      minority communities  cannot fulfil the real objects of      their choice and the rights under Art, 30 (1) cannot be      effectively   exercised.   The   right   to   establish      educational  institutions   of   their   choice   must,      therefore,   mean   the   right   to   establish   real      institutions which  will effectively serve the needs of      their community  and the  scholars who  resort to their      educational institutions.  There is,  no doubt, no such      thing as  fundamental right to recognition by the State      but to deny recognition to the Educational institutions      except upon  terms tantamount to the surrender of their      constitutional   right   of   administration   of   the      educational institutions  of their  choice is  in truth      and in  effect to  deprive them  of their  rights under      Art. 30(1).  We repeat  that the  legislative power  is      subject to  the fundamental  rights and the legislature      cannot indirectly  take away or abridge the fundamental

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    rights which it could not do directly and yet that will      be the result if the said Bill containing any offending      clause becomes law."  (Emphasis ours)      The observations  and the ratio of this case were fully affirmed 417 and expounded  by this  Court in a 9-Judge Bench decision in St. Xaviers  College  case  (supra)  where  all  the  Judges speaking in  the same strain held that withholding of aid or affiliation in  such a  manner as  to destroy  or efface the autonomy  and   individuality  of   a  minority  institution violates Art. 30. In this connection, the Judges by separate judgements made the following observations:-      "The consistent  view of this Court has been that there      is no  fundamental right  of a  minority institution to      affiliation. An  explanation has  been  put  upon  that      statement of law. It is that affiliation must be a real      and meaningful  exercise for  minority institutions  in      the matter  of imparting  secular  education.  Any  law      which provides  for affiliation  on  terms  which  will      involve abridgement  of the  right  of  linguistic  and      religious  minorities   to  administer   and  establish      educational institutions.  of their  choice will offend      Article 30  (1). The educational institutions set up by      minorities will  be robbed of their utility if boys and      girls  cannot  be  trained  in  such  institutions  for      University  degrees.  Minorities  will  virtually  lose      their  right  to  equip  their  children  for  ordinary      careers if  affiliation be  on terms  which would  make      them surrender  and lose  their rights to establish and      administer educational  institutions  of  their  choice      under Article 30........The establishment of a minority      institution is  not only  ineffective but  also  unreal      unless such  institution is  affiliated to a University      for the purpose of conferment of degrees on students.      ...........          ............          ..........           Affiliation of  minority institutions  is intended      to ensure  the growth  and excellence of their children      and other  students in  the academic field. Affiliation      mainly  pertains   to  the   academic  and  educational      character of the institution."                                    (Ray, C.J.)           "We agree  with the  judgment of Hon’ble the Chief      Justice just  pronounced and  with his conclusions that      ss. 40,  41, 33A(1)  (a), 33A(1)(b), 51A and 52A of the      Act violate  the fundamental  rights of  minorities and      cannot,   therefore,    apply   to   the   institutions      established and administered by them.      ...............         ............         ........           The right  under Art.  30 cannot  be exercised  in      vacuo. Nor 418      would  it   be  right   to  refer   to  affiliation  or      recognition as  privileges granted  by the  State. In a      democratic  system   of  Government  with  emphasis  on      education and enlightenment of its citizens, there must      be  elements   which  give   protection  to  them.  The      meaningful exercise of the right under Art. 30(1) would      and must necessarily involve recognition of the secular      education imparted by the minority institutions without      which the  right will be a mere husk. This Court has so      far consistently  struck  down  all  attempts  to  make      affiliation  or  recognition  on  terms  tantamount  to      surrender of  its rights  under Art. 30(1) as abridging

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    or  taking   away  those   rights.  Again   as  without      affiliation there  can be no meaningful exercise of the      right under  Art. 30(1),  the affiliation  to be  given      should be  consistent  with  that  right.  nor  can  it      indirectly try to achieve what it cannot directly do." (Jaganmohan Reddy, J.)           I am  of the  view that  it is permissible for the      State to  prescribe reasonable regulations like the one      to  which  I  have  referred  earlier  and  make  it  a      condition precedent  to the according of recognition or      affiliation to  a  minority  institution.  It  is  not,      however,  permissible   to  prescribe   conditions  for      recognition or  affiliation which  have the  effect  of      impairing the  right of  the minority  to establish and      administer their  educational institutions. Affiliation      and recognition are, no doubt, not mentioned in article      30(1) position  all the  same remains  that refusal  to      recognize or  affiliate  minority  institutions  unless      they (the minorities) surrender the right to administer      those institutions  would have  the effect of rendering      the right  guaranteed by  article 30(1)  to  be  wholly      illusory and indeed a testing illusion.      ...........      ..............           ...........           What  is   said  above   with  regard  to  aid  or      recognition applies equally to affiliation of a college      to the  University because but for such affiliation the      student will  not be able to obtain a University degree      which  is   recognized  as   a  passport   to   several      professions and future employment in Public Service.      ...........          ............            .........           If the  conversion of  affiliated colleges  of the      minorities 419      into constituent  colleges contravenes  article  30(1),      the fact  that such  conversion is  in pursuance  of  a      scheme which  permits  the  grant  of  autonomy  to  an      individual college  would not prevent the striking down      of the impugned provision."     (Emphasis ours)  (Khanna, J.)           "Over the  year, this  Court has held that without      recognition or  affiliation, there  can be  no real  or      meaningful exercise  of  the  right  to  establish  and      administer  educational   institutions  under   Article      30(1).      ........            ..........         ............           The heart  of the  matter is  that no  educational      institution established  by a  religious or  linguistic      minority can  claim total  immunity from regulations by      the  legislature   or  the   university  if   it  wants      affiliation or  recognition; but  the character  of the      permissible regulations must depend upon their purpose.      As we  said, such  regulations will  be permissible  if      they  are  relevant  to  the  purpose  of  securing  or      promoting the object of recognition or affiliation." (Mathew, J.)           "It is true that, if the object of an enactment is      to compel  a minority  Institution, even indirectly, to      give up  the exercise  of its  fundamental rights,  the      provisions which  have this  effect  will  be  void  or      inoperative against the minority Institution, The price      of affiliation  cannot be  a total  abandonment of  the      right  to   establish   and   administer   a   minority      Institution   conferred    by   Art,   30(1)   of   the      Constitution. This  aspect of  the  matter,  therefore,

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    raises the  question whether  any of  the provisions of      the Act  are  intended  to  have  that  effect  upon  a      minority Institution.  Even if  that intention  is  not      manifest  from   the   express   terms   of   statutory      provisions, the  provisions may  be vitiated if that is      their necessary consequence or effect." (Beg, J.)           "However, in  case of  an  affiliating  University      affiliation cannot  be denied to a minority institution      on the  sole ground  that it  is managed  by a minority      whether based  on religion  or language or on arbitrary      or irrational  basis. Such  a denial would be violative      of Arts. 14 and 15(1) and will be struck 420      down by  courts. Again,  Art, 13(2) prohibits the State      from taking  away or  abridging the  right  under  Art,      30(1). Since  the State  cannot directly  take away  or      abridge a  right conferred  under Art. 30(1), the State      cannot also  indirectly take away or abridge that right      by subjecting the grant affiliation to conditions which      would entail the forbidden result." (Diwedi, J.)      On a  careful and  detailed review  of the  cases cited above, the following position emerges;      (1)  that while  Art, 30  undoubtedly seeks to preserve           the   religious    freedom,   autonomy   and   its           individuality; there is no fundamental right under           which an  institution  can  claim  either  aid  or           affiliation  as   a  matter   of  right.   It   is           permissible for  the State  or the  University, as           the case may be, to lay down reasonable conditions           to  maintain   the  excellence   of  standard   of           education but  in the garb of doing so, refusal to           grant affiliation cannot be made a ruse or pretext           for destroying  the individuality  and personality           of the  said institution.  If this  is done,  then           apart from being wholly arbitrary and unreasonable           it would  amount to  a  clear  infraction  of  the           provisions of  Art, 30 because what cannot be done           directly is done indirectly.      (2)  While  the  State  or  a  University  has  got  an           absolute right  to insist  on certain  courses  of           study to  be followed  by institutions before they           could be  considered  for  affiliation  but  these           conditions should  not in  any way  take away  the           freedom of  management or  administration  of  the           institution so  as to  reduce it to a satellite of           the  University  or  the  State.  This  is  wholly           impermissible because  such  a  course  of  action           directly violates Art. 30 of the Constitution.      (3)  While   imposing    conditions   before   granting           affiliation, as  indicated above, the State or the           University   cannot   kill   or   annihilate   the           individuality or personality of the institution in           question by  insisting on  following a  particular           kind of syllabus or a course of study which may be           directly opposed  to the  aims, objects and ideals           sought to be achieved by the institutions. 421      (4)  There is  a very  thin line of distinction between           withholding  of   affiliation  for   a  particular           purpose on extraneous grounds so as to subject the           institution  to   rigorous   orders,   edicts   or           resolutions which  may run counter to the dominant           purpose  for   which  the   institution  has  been

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         founded, and  insisting on  genuine and reasonable           conditions to be imposed in the larger interest of           education.      Thus, all  the authorities mentioned above clearly laid down that (while affiliation itself may not be a fundamental right but  refusal of affiliation on terms and conditions or situations  which   practically  denies   the  progress  and autonomy  of  the  institution  is  impermissible  as  being violative of  Art.  30  of  the  Constitution.)  It  is  not necessary for us to dwell on the other aspects of the matter because we  are not  concerned with  them in this particular case.      We now proceed to discuss the facts of the present case which,  we   are  constrained  to  observe,  reveal  a  most distressing  and   disturbing  attitude   exhibited  by  the University and the Government of Bihar as well. In fact, the reason and  the motive for refusing affiliation to the Milli Talimi Mission  Bihar, Ranchi  are so  obvious and  manifest that even  the Standing  Counsel for  the  State  of  Bihar, despite his  best efforts,  found himself  unable to support the action  of the  University. We are indeed amazed how the respondents have  behaved in  filing their affidavits in the highest court  of the  land and  have violated  the  express orders of  this Court  with impunity.  In order  to buttress what we  have said,  it may  be necessary  to give  a  short history of the Institution in question.      The Institution in dispute, Milli Talimi Mission Bihar, Ranchi, was  started as  a Teachers Training College under a Society which  was established  as for  back as 1972, though the College itself was established and started in July 1977. On 22.9.1977  the Institution  made an  application  to  the Government for  grant of  affiliation or  recognition of the same in  response to  which a  most extraordinary  order was passed by  the Government  directing  the  Universities  for refusing  affiliation   on  the   strange  ground  that  all proposals for  affiliation by  the  Non-Government  Teachers Training Colleges be rejected and that no student be allowed to appear  as a  private candidate.  However, in the case of minority institutions  the State  Government in sub-para (3) of paragraph (1) stated thus: 422      "(3) The above decision as described vide decision nos.      (1) and  (2) above  shall not be applicable in cases of      colleges run  by  the  minority  community.  Government      decision  in  this  regard  to  their  cases  shall  be      intimated separately."      In  view   of  the   above,  it  was  incumbent  on  an institution to  prove that  it was  a  minority  institution before it  could  be  granted  affiliation.  Thereafter,  on 24.2.1978 the  appellants filed  an application  before  the Ranchi  University   for  grant  of  affiliation.  This  was followed by  issue of Bihar non-Government Teachers Training College Ordinance  on June  5, 1978.  On June  15, 1978  the Government wrote  to the Ranchi University for inspection of the  appellant’s   College.  On   13.8.1979  the  Government notified that  the decision  regarding affiliation  would be governed by its circular dated 1.10.1973 (Annexure B), which laid down  certain conditions  for grant of affiliation, and that with  regard  to  the  minority  institutions  a  final decision would  be taken later. Thereafter, a writ was filed in the  Patna High Court where it was decided that section 2 of the  Ordinance, referred  to above,  would not  apply  to minority training  colleges. On  6.2.1980 Joint Secretary to the  Government   of  Bihar   sent  letters  to  the  Ranchi University  and   the  Deputy   Commissioner,   Ranchi   for

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inspection of  the appellants’ college. It would appear that although the Institution applied for affiliation in 1977 and claimed to  be  a  minority  institution,  which  was  never disputed at  any point  of time, yet it took three years for the Government  to take  a decision about affiliation of the appellant’s college.      On 5.3.1980,  the University  authorities inspected the appellants’ college  and recommended  its affiliation  which was  followed  by  a  report  by  the  District  Development Officer, Ranchi  on 30.6.1980 recommending affiliation. But, despite these  facts no  final decision  was  taken  by  the Government as  a result  of which the appellants had to move the High  Court again  for directing the Government to grant affiliation and  the High  Court gave  a  direction  to  the Government to  decide recognition  and  affiliation  of  the appellants’ college within a specified time. On 3.11.80, the Government granted  recognition and approval for affiliation for three sessions only, i.e., 1977-78, 1978-79 and 1979-80.      On 10.11.1980,  the University  wrote to the Government recommending  grant   of  affiliation   to  the  appellants’ college. On  22.11.1980, the appellants applied for grant of permanent  affiliation.   But,  somehow  or  the  other,  on 27.11.80, for undisclosed reasons, 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, alongwith the  appellants’ college, were granted recognition and affiliation by the Government.      Ultimately, the  High Court had to be moved again which directed the  State Government to dispose of the application of the  appellants for permanent recognition which was filed by them on 22.11.80. On 16.9.82, the Education Commissioner, Bihar again,  made a recommendation for grant of affiliation to the appellants’ college, which may be extracted thus:      "In this  connection the notings of the Joint Secretary      may kindly be seen at pages 62-64. Also the Judgment of      the High  Court be  seen at page 137 according to which      the restrictions  of the Ordinance is not applicable to      Minorities Institutions.  In  addition  to  this,  this      institution has  also been  got inspected  in which the      local authorities  were  present.  There  is  unanimous      recommendation  that   this  training   institution  be      affiliated. The  recommendation of  the University  may      kindly be  seen at p. 150. Accordingly, this college be      temporarily granted recognition and affiliation for the      sessions 1980-81 to 1982-83 for the present."      A perusal  of the  above recommendation  shows that the Institution in question was inspected in the presence of the local authorities  as also  the University  authorities  who unanimously recommended  that the Institution was a minority institution  and   should   be   granted   affiliation   and recognition at  least for  the session  1980-81  to  1982-83 Despite this,  nothing tangible seems to have happened which compelled the  appellants to  file another  writ petition in the High  Court on  3.5.1983 for examination of the students of the  appellants’  college  who  had  passed  the  1982-83 session. But  the writ  petition was  dismissed by  the High Court in limine. Hence, this appeal by special leave to this Court.

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    After leave  was granted we directed the respondents to produce Ex. J. (Education Commissioner’s recommendation) and the data on 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-fulfilment of  the conditions  it was  not  possible  to grant affiliation without even mentioning in what manner and

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to what  extent the recommendation of Education Commissioner and the  materials on  which it  was based was wrong and why the five new conditions were sought to be imposed.      Despite  repeated   orders  of   this  Court   to   the respondents  to   produce  the   report  of   the  Education Commissioner and  the details thereof, the same was not done and a  belated attempt  was made  to show  that  there  were certain defects  in the  Institution. In  view of  the  non- production of  the most  important and  decisive material we are  unable  to  accept  the  subsequent  affidavit  of  the respondents which is nothing but an afterthought.      The  State  Government  in  its  counter-affidavit  has stated that  it was  prepared to  grant affiliation  to  the appellants’ college on fulfilling certain conditions. We are however, satisfied  that this  is nothing but a pretext or a smoke-screen  to  cloud  the  real  issue.  Indeed,  if  the Government meant  business it  should have  the  courage  to produce the report on which Ex. J. was based, which has been deliberately suppressed  despite our  orders to  produce the same. We  are,  therefore,  compelled  to  draw  an  adverse inference against the State 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 fulfil all the conditions imposed by the State.      Thus, the  position is  that the  State has  refused to grant affiliation  on purely  illusory grounds  which do not exist and  failed to  consider  the  recommendation  of  the Education Commissioner  which was made after full inspection for grant  of affiliation.  In other  words, the affiliation was refused without giving any sufficient reasons and such a refusal  contravenes  the  provisions  of  Art.  30  of  the Constitution.      For the reasons given above, we find that this is a fit case where  this Court  should step  in to  strike down  the Government action  which is  violative of  Art.  30  of  the Constitution and  which does  not fall within the guidelines indicated in  the various authorities cited in our judgment. The heart  of the  matter is  that as the Government did not like the  recommendation of  the Education  Commissioner and was  not  prepared  to  grant  affiliation  for  undisclosed reasons, the act of the Government was a colourable exercise of jurisdiction  which deprived  the appellants’ Institution of its constitutional rights.      Normally, this Court does not grant costs in such cases but  having   regard  to  the  manner  in  which  the  State Government has  behaved  and  exhibited  its  reluctance  to perform a  constitutional duty and has also tried to disobey our orders  for production  of certain  documents,  we  must impose a heavy cost on the State.      We, therefore,  allow this appeal with costs quantified at Rs.  5,000 (Rupees  five thousand only) to be paid to the appellants within  three months  from today,  set aside  the Order of  the High  Court dismissing  the writ  petition  in limine  as   also  the  Order  of  the  Government  refusing affiliation and  peremptorily direct the Government to grant affiliation  to   the  appellants’  college  and  allow  its students of  the 1980-81.1981-82 and 1982-83 sessions to sit in the  examination, both written and practical, as the case may be.  We would,  however, like  to add  that if there are cogent reasons  and sufficient  material before the State or the University  to show  that the  appellants’ Institute has not fulfilled the conditions which may be imposed hereafter,

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it is  open to  it to  withdraw the affiliation provided the conditions imposed are reasonable and justifiable. 427      SABYASACHI MUKHARJI, J. I agree with the order proposed by my  learned brother Justice Fazal Ali. For the purpose of disposing of  this appeal, it is sufficient to state that on the 5th March, 1980 the university authorities inspected the appellants’ college  and recommended  its affiliation  which was followed  by a report by the Government on 30 June. 1980 recommending  affiliation.   But  despite  these,  no  final decision was  taken by  the Government  as a result of which the appellants  had to move the High Court for directing the Government  to   decide  recognition   and  affiliation   of appellants’  college   within  a   specified  time.  On  3rd November,  1980   the  Government  granted  recognition  and approval for  affiliation for three sessions namely 1977-78, 1978-79  and  1979-80.  On  the  10th  November,  1980,  the University wrote  to the  Government recommending  grant  of affiliation. On  22nd November, 1980, the appellants applied for grant  of permanent  affiliation. But  the Government on 27th  November,   1980  passed   an  order   cancelling  the recognition and  approval for  affiliation  granted  to  the appellants’ college  vide its  letter  dated  3rd  November, 1980. This  order was  challenged before the High Court. The High Court  quashed the said order dated 27th November, 1980 on 18th  May, 1981.  On the  17th August, 1981, the State of Bihar filed a special leave petition before this Court which was dismissed  on 30th  November, 1981.  The High  Court was moved again for directing the State Government to dispose of the application  of the appellants for permanent recognition which was  filed by them on 22nd November, 1980. On the 16th September, 1982  the Education Commissioner Bihar again made a recommendation for grant of affiliation to the appellants’ college the  extract from  which has  been set  out  in  the judgment of  my learned  brother. In the recommendation, the education  Commissioner  recommended  that  the  college  be temporarily granted  recognition  and  affiliation  for  the sessions 1981-82  and 1982-83  for the present. Another writ petition thereafter  was filed  and nothing happened for the examination of  the students  of the appellants’ college who had passed  the 1982-83  session. But this writ petition was dismissed by  the High  Court in  limine. This appeal arises out of the said order.      There were  certain data  which were  gathered  by  the expert committee  and were  the basis  of Ex. J. There was a previous order  for the  production of  Ex. J.  That has not been produced  and no  explanation has  been given.  I agree with my learned brother that from the affidavits it is clear that practically  no reasons have been given by the State as to why  despite the  recommendations of  several authorities which were made after a full and proper inspections, the 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.

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    It is manifest from paragraph 7 of the affidavits filed by the respondents that before grant of affiliation, certain conditions were required to be fulfilled by the institution. These conditions  have been  mentioned in the judgment of my learned brother.  It further  appears  from  the  affidavits filed by  the appellants  that the  defence of the State was that  five   conditions  were   found  not  fulfilled  after Inspection by  a team  of inspectors.  I agree  that  it  is strange  that   while  previous   Expert   Committee   after inspecting the  institute  found  it  to  be  in  order  but subsequently the  government, without  referring to the data submitted by  the Expert  Committee, appears  to have  taken this view  about non-fulfilment  of certain  conditions.  No cogent materials  or reliable  evidence were produced before us that  there was  any proper  inspection and as a fact the five alleged defects were there. I agree that in the context of the facts of this case and further in the context of non- production of  Ex. J., the alleged plea of non-fulfilment of certain conditions  was a  pretext.  In  the  premises,  the government  action   in  not  granting  affiliation  in  the background of  the facts  and circumstances  of this case is action based  without reason and is an act of arbitrariness. On this  ground alone  I agree with the order proposed by my learned brother.  As I find the action of the respondents is arbitrary and  unreasonable, it  is not  necessary for me to express my  views on Article 30 of the Constitutions it this case. Article  30 was  engrafted  for  the  High  and  Nobel purpose  of   safeguarding  and  protecting  the  rights  of minorities   to   establish   and   administer   educational institutions. In  this case  I  do  not  find  that  in  not granting affiliation  to the  appellants’ college  there was any  discrimination   as  such   against   any   educational institution on  the ground  that it was under the management of any  minority whether  based on  religion or language. It was inaction  or an  act of arbitrariness on the part of the authorities. From such unreasonable and arbitrary actions or inactions, institutions 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. 430