DICTION Writ Petition Civil No 55 of 1987 etc
Under Article 32 of the Constitution of India Soli J Sorabjee SN Kacker section Nariman RK Jain Singh Ranjit Kumar
Dhananjay Chandrachud Rakesh Khanna RP Singh L N Sinha for the appearing parties 318 The Judgment of the Court was delivered by DUTT J
In these writ petitions and civil appeals Lalit Narayan Mishra Institute of Economic Development and Social Change Patna a Society registered under the  and its Registrar Dr Jagadanand Jha have challenged the constitutional validity of two ordinances being Bihar ordinances Nos 15 of 1986 and 30 of 1986 replaced by the Bihar Private Educational Institutions Taking over Act 1987 hereinafter referred to as the Act 
Dr Jagadanand Jha has further challenged the validity of the order of termination of his service as the Registrar of the Institute dated April 21 1986 in Writ Petition Civil No 439 of 1987
As disposal of Writ Petition Civil No 431 of 1987 wherein the constitutional validity of the Act has been challenged and Writ Petition Civil No 439 of 1987 in which the legality of the order of termination of service of the said Dr Jagadanand Jha has been challenged will virtually mean disposal of the other writ petitions and appeals we propose to deal with these two writ petitions
The Institute Lalit Narayan Mishra Institute of Economic Development and Social Change Patna hereafter referred to as Institute  was initially named Bihar Institute of Economic Development and was started in 1973 under the Chairmanship of Dr Jagannath Mishra the then Minister of Irrigation and later on the Chief Minister of Bihar
It was named as Lalit Narayan Mishra Institute of Economic Development and Social Change to commemorate the memory of late Shri Lalit Narayan Mishra once upon a time Union Railway Minister
It may be noticed at this stage that the name of the Institute and the name of the Society are the same
The Institute was basically started as a research institute
In 1974 the Magadh University recognised the Institute for the purpose of research
Subsequently Ranchi Patna and Bihar Universities also granted recognition to the Institute as a research institute
In March 1977 the Magadh University declared the Institute as an autonomous Institute under section 73 of the Bihar State Universities Act 1975
on April 19 1986 the State Government of Bihar promulgated ordinance No 15 of 1986 whereby the Institute was taken over
It is alleged that the ordinance was promulgated and the Institute was taken over at the instance of the then Chief Minister of Bihar Sri Bindeshwari Dubey
The petitioner Society has also alleged mala fides on the part of the Chief Minister of Bihar in taking over the Institute 319 by promulgating the ordinance
On the day the ordinance was promulgated possession of the Institute was taken and the services of Dr Jagadanand Jha who was the Registrar of the Institute were terminated by the impugned order dated April 21 1986
Besides contending that the ordinance and the order of termination of the petitioner Dr Jagadanand Jha are illegal and invalid the petitioner society and the said Jagadanand Jha allege that all these have happened because of the personal enmity of the Chief Minister against Dr Jagannath Mishra the Chairman of the Society and the Institute
The petitioners filed writ petitions before the Patna High Court challenging the validity of the said ordinance No 15 of 1986 and the order of termination of services of Dr Jagadanand Jha
The Patna High Court however by its judgment dated August 26 1986 dismissed both the writ petitions
Both the Society and Dr Jagadanand Jha have preferred two appeals by special leave being Civil Appeal No 4142 of 1986 and Civil Appeal No 4141 of 1986 respectively against the said judgment of the Patna High Court
The Society and Dr Jagadanand Jha have also challenged the ordinance No 30 of 1986 by Writ Petition Civil No 55 of 1987 and as stated already they have also challenged the constitutional validity of the Act replacing these ordinances
At this stage it is necessary to refer to the provisions of the Act which are the same as that of the two successive ordinances Nos 15 and 30 of 1986
Some submissions have been made at the Bar on the Preamble to the Act which reads as follows To PROVIDE FOR TAKING OVER BY THE STATE GOVERNMENT OF PRIVATE EDUCATIONAL INSTITUTIONS OF THE STATE OF BIHAR 
WHEREAS the State of Bihar has bright prospects of rapid growth of Industrial and Economic Development the relevancy and importance of specialised knowledge of Business Management has assumed great importance AND WHEREAS for that purpose it is necessary to ensure a high level of educational and training facilities and the co ordination of the training with important industrial and business units AND WHEREAS it has been resolved to nationa 320 lise this branch of education in phases
 Clause a of section 2 of the Act defines Private Educational Institutions as follows section 2a
Private Educational Institution means a private educational college institute or school affiliated to any University of the State of Bihar or recognised by the State Government and imparting education andor training in Business Management or Business Administration or matter connected with Economic and Social Development andor conducting degree or diploma course in one or the other branch of education mentioned above Chapter II of the Act relates to taking over of Private College Institute
Section 3 of chapter II runs as follows section 31 With effect from the date of this Act the institution as specified in the Schedule of this Act shall stand transferred to and shall vest absolutely in the State Government free from all encumbrances
2 The State Government may from time to time by a notified order amend the Schedule by the inclusion of any institution and the same shall stand vested and transferred to in the State Government with effect from the date mentioned in the notification
3 All the assets and properties of the institution Governing BodyManaging CommitteeAssociation whether movable or immovable including lands buildings workshop stores instruments machinery vehicles cash balance reserve fund investment furniture and others shall on the date of taking over stand transferred to and vested in the State Government free from all encumbrances
 Section 41 of the Act provides that the Commissioner shall be deemed to have taken charge of the Institution which stands vested in the State Government under the provisions of the Act
Section 6 relates to the determination of terms of services of the teaching staff and the other employees of the Institution
The Schedule to the Act specifies the name of the Institute namely
LN Mishra Institute of 321 Economic Development and Social Change Patna in terms of section 31 of the Act
Under the Preamble to the Act it is necessary to rationalise private education relating to business management in view of a very good possibility of a rapid industrial and economic development of the State of Bihar
The nationalisation has been resolved to be made in phases
It has been already noticed that under section 31 of the Act the Institution mentioned in the Schedule will be transferred to the State Government and will be actually vested in it free from all encumbrances
The Schedule mentions only one Institute and in view of section 31 it has vested in the State Government
It is said that the first phase relates to the taking over of the Institute and that has been done
Section 32 also provides for amendment of the Schedule by including any institution
In other words the other institutions which answer the description of private educational institutions as defined in clause a of section 2 of the Act will also be nationalised not at a time but in phases the first phase having started with the take over of the Institute
This in short is the scheme of the Act
The first attack to the validity of the Act and the said two ordinances is founded on the plea of violation of Article 14 of the Constitution
It is submitted by Mr Sorabjee learned Counsel appearing on behalf of the petitioner Society that while it is true that Article 14 forbids class legislation it does not however forbid reasonable classification
We are reminded of the principle of law as laid down in State of Rajasthan vs Mukandchand   Maganlal Chaganlal P Ltd vs Municipal Corporation of Greater Bombay  and in re The Special Courts Bill 1978 In all these cases it has been laid down that in order to satisfy the test of permissible classification under Article 14 two conditions must be fulfilled namely 1 that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and 2 that the differentia must have a rational relationship to the object sought to be achieved by the statute in question
It is urged by the learned Counsel that the impugned Act on the face of it does not disclose any basis or principle for singling out the Institute and for treating it as a class by itself
It is submitted that neither in the preamble nor in the provisions of the Act is there the slightest indication for treating the Institute as a class by itself
Much reliance has been placed by the learned Counsel for the petitioner on the decision of this Court in Shri Ram Krishna Dalmia vs Shri Justice SR Tendolkar  Ors  In that case the 322 Central Government in exercise of its power under section 3 of the Commissions of Enquiry Act 1952 issued a notification dated December 11 1956 appointing a Commission of Enquiry to enquire into and report in respect of certain companies mentioned in the Schedule attached to the notification and in respect of the nature and extent of the control and interest which certain persons named in the notification exercised over these companies
Das CJ speaking for the Court observed that it was not established that the petitioners and their companies had been arbitrarily singled out for the purpose of hostile and discriminatory treatment and subjected to a harassing and oppressive enquiry
It was further observed that nowhere in the petitions was there even an averment that there were other persons or companies similarly situated as the petitioners and their companies
Certain principles of law have been laid down in that decision
These principles still hold the field and are helpful in considering the constitutionality of a statute
One of these principles is that a law may be constitutional even though it relates to a single individual if on account of some special circumstances or reasons applicable to him and not applicable to others that single individual may be treated as a class by himself
The other decision that has been relied upon by the petitioner is BS Reddy vs Chancellor Osmania University  What happened in that case was that section 5 of the Osmania University Second Amendment Act 1966 introduced into the Osmania University Act 1959 a new section 13A whereby it was provided that the person then holding the office of the Vice Chancellor of the University could only hold that office until a new Vice Chancellor was appointed and that such new amendment must be made within 90 days of the commencement of the said amendment Act whereupon the old Vice Chancellor would cease to hold office
It was held by this Court that there was no justification for the impugned legislation that is the provision of section 13A resulting in a classification of the Vice Chancellors into two categories namely the appellant as the existing Vice Chancellor and the future Vice Chancellors to be appointed under the Osmania University Act
It was held that both these categories constituted one single group or class and that even assuming that the classification of these two types of persons as coming under two different groups could be made nevertheless it was essential that such a classification must be founded on an intelligible differentia which would distinguish the appellant from the Vice Chancellors appointed under the Osmania University Act
The Court held that there was no intelligible differentia on the basis of which the classification could be justified
323 On the basis of the above principles of law as laid down by this Court it is submitted by the learned Counsel for the petitioner that while it is true that a single individual may be treated as a class by himself on account of some special circumstances or reasons applicable to him as laid down by this Court in Dalmia s case supra such classification must be founded on an intelligible differentia which distinguishes the person classified from others falling outside the classification
It is urged that even though nationalisation of institutes is permissible in a phased manner and a single institution like the Institute with which we are concerned may be singled out as a class by itself it must be founded on an intelligible differentia that distinguishes it from other institutions and such differentia for classification must have a rational nexus to the object sought to be achieved by the Act
It is the case of the petitioner Society that there are eleven other similar institutes which have been specifically named in the petition and there is nothing in the Act to indicate why the Institute has been singled out
Moreover there is also nothing to indicate either in the Preamble or in the provisions of the Act that the singling out of the Institute from the other institutions and treating it as a class by itself has a reasonable relation to the object sought to be achieved by the Act
It is accordingly submitted that the Act and the ordinances are discriminatory in nature and violative of Article 14 of the Constitution and should be struck down on that ground
The contention made on behalf of the petitioner Society is wholly misconceived
The ordinances were not promulgated and the Act was not passed for the purpose of nationalisation of the Institute only
It is apparent from the provisions of the ordinances and the Act that the private educational institutions as defined therein are to be taken over for the purpose as mentioned in the Preambles to the ordinances and the Act in a phased manner
All the institutions which answer the description as given in section 2a of the Act are to be nationalised
It is therefore not correct to say that the Institute has been singled out for the purpose of nationalisation
There can be no doubt that when nationalisation has to be done in a phased manner all the institutions cannot be taken over at a time
The nationalisation in a phased manner contemplates that by and by the object of nationalisation will be taken over
Therefore in implementing the nationalisation of private institutions in a phased manner the Legislature has started with the Institute
Therefore the question of singling out the Institute or treating it as a class by itself does not arise for as the provisions of the Act and the ordinances go all the 324 private educational institutions as defined in section 2a of the Act A will be nationalised in a phased manner
It is the legislative decision that the Institute should be taken over in the first phase of the nationalisation
The Legislature has not left it to the discretion of the executive Government for the purpose of selecting the private educational institution for the first phase
It is very difficult to assail a legislative decision
Of course there can be no doubt that a legislative decision can be assailed if it is violative of any provision of Part III of the Constitution
So far as Article 14 is concerned we do not think that it has any manner of application inasmuch as the question of discrimination does not arise as soon as it is conceded that it is case of nationalisation in a phased manner and for the first phase the Institute has been chosen by the Legislature itself
The decision of this Court in the cases of Dalmia supra and Osmania University supra have no manner of application because in those two cases the question of discrimination did really arise
But in the instant case there cannot be any discrimination when nationalisation has to be made in phased manner
It is however submitted that there was no justification to pick and choose the Institute even for the first phase
As has been stated already the Institute has been chosen by legislative process
It is true that the ordinances were promulgated under Article 213 of the Constitution of India but it cannot be characterised as an executive act
In any event ultimately the Legislature itself has passed the Act with the inclusion of the Institute in the Schedule thereto as the only Institution to be nationalised in the first phase
Even assuming that the question of discrimination may arise also for the purpose of selection for the first phase we are of the view that there are justifiable reasons which will be stated presently for selecting the Institute for the first phase of nationalisation
Mr Kacker learned Counsel appearing on behalf of the Chief Minister of Bihar has placed before us two resolutions of the Education Department of the Government of Bihar dated June 10 1975 and November 21 1975
By the first mentioned resolution it was decided to rename the Bihar Institute of Economic Development as Lalit Narayan Mishra Institute of Economic Development and Social Change to commemorate the memory of late Shri Lalit Narayan Mishra who was the Railway Minister and to enlarge the working scope of the Institute and to develop it into a significant and useful memorial
325 It was also resolved that the entire expenditure of the Institute would be borne by the State government Education Department and for this purpose annual grants would be sanctioned
A steering committee under the chairmanship of the Education Minister was constituted
It is not disputed that since June 1975 every expenditure for maintaining and running the Institute has been incurred by the State of Bihar
It is submitted by Mr Kacker that the facts disclosed in the writ petition have brought out prominently the interest the State had taken in not only financing but also controlling the entire development and running of the Institute
The total amount of money spent by the State Government in nurturing the Institute works out to about Rs160 crores
Facts also disclose that not only the State had changed the name of the Institute but also provided the site for the Institute got the building constructed through its own agencies and funds and even supervised the prescription of syllabi
There is much force in the contention of Mr Kacker that in a sense the State Government was running the entire Institute without nationalisation and when it decided to nationalise such institutions for the purposes mentioned in the Preambles of the Act and ordinances this Institute was chosen to be the very first with all sense of justification and propriety
In considering the propriety of legislative wisdom in selecting the Institute in the first phase of nationalisation we cannot exclude the fact that since 1975 it is the State of Bihar which has been nurturing the Institute spending a considerable sum of money and exercising necessary control over it as contended on behalf of the petitioner Society
The facts stated above in our opinion fully justify the propriety of legislative wisdom in selecting the Institute as the subject matter of nationalisation in the first phase
It is however complained on behalf of the Institute that since April 19 1986 when the first ordinance was promulgated no other institution has been added to the Schedule though nearly two years have passed in the meantime
It is submitted that this fact demonstrates that the professed object of nationalisation in phases is a mere pretence and a colourable device to single out the Institute for discriminatory treatment
The taking over of the Institute is an act of legislation and not an act of the Government
The question to be considered is whether at the time when the ordinances were promulgated or the Act was passed the same suffered the vice of discrimination or not
There can be no doubt that on the date the ordinances were promulgated and the Act was passed the same could not be challenged on the ground of non implementation of the legislative intent in nationalising similar institutes by amending the Schedule
If a 326 legislative enactment cannot be challenged as discriminatory on the date it is passed it is difficult to challenge the same as violative of Article 14 of the Constitution on the ground of inaction of the executive in implementing the purposes of the Act regard being had to the fact that it was the Legislature which had made the selection for the first phase of nationalisation
If no such selection had been made by the Legislature and the entire thing had been left to the discretion of the Government it might have been possible to contend of discriminatory treatment
The respondents have however given an explanation for not including the other similar institutions in the programme of nationalisation to be precise in the Schedule to the Act
In paragraph 24 of the counter affidavit of the respondents Nos 1 3 and 4 affirmed by Shri Ram Shankar Prasad Deputy Secretary Department of Education Government of Bihar it has been stated inter alia as follows Since the validity of the Act is under cloud being the subject matter of challenge before this Hon ble Court the State Government has not yet taken over other Institutes
However it is submitted that the proposal to take over two other institutes in the second phase is at the final stage and is awaiting the final decision with regard to the validity of the Act
When the cloud is cleared further step for taking over other institutes imparting education in similar branch will be taken
 It is common knowledge that when any litigation ensues and remains pending the Government generally does not take any step till the final disposal of the litigation
It is also the case of the respondents that because of the pendency of the litigation challenging the validity of the ordinances and the Act the Government did not take any steps for nationalisation of similar institutes for the second phase
A grievance has been made on behalf of the petitioner Society that even after the promulgation of the ordinances three other Institutes the details of which have been set out in the additional affidavit have been recognised
An explanation for the recognition of the three Institutes has been given in paragraph 25 of the counter affidavit of the respondents Nos 1 3 and 4
The explanation is that the affiliation is granted under the Bihar State University Act by the University with the approval of the State Government
Three Institutes mentioned in paragraph 4 of the additional affidavit of the petitioner Society were 327 recommended by the concerned university for affiliation
The State Government has concurred in the grant of temporary affiliation subject to certain conditions and only for two sessions
In other words the explanation is that permanent affiliation has not been granted by the State Government
It is also the case of the said respondents that these institutions are not imparting training in the various courses which are being taught in the Institute
The Institute has sponsored and taken out various research programmes and training in computer which are not available in the three institutions named in paragraph 4 of the additional affidavit
It is thus apparent that in view of the pendency of litigations the State Government has granted approval to only temporary affiliation to the three institutions and that too on certain conditions
If the State Government had no intention of taking over other institutions in accordance with the provisions of the Act in that case the Government would have sanctioned permanent affiliation to the three institutions
It is made clear in the affidavit of the respondents Nos 1 3 and 4 that the State Government after the disposal of the litigations that is to say after the disposal of these writ petitions and the civil appeals would go on with the nationalisation of other institutions by the amendment of the Schedule to the Act
Therefore although there has been delay in implementing the provisions of the Act such delay is unintentional and because of the pendency of litigations
In the circumstances we are unable to accept the contention made on behalf of the petitioner Society that the professed object of nationalisation in phases is a mere pretence and a colorable device to single out the Institute or that the facts of exclusion of eleven similarly situated Institutes and the subsequent recognition of the three other Institutes impart vice of discrimination to the impugned Act
As has been stated already the question of discrimination or discriminatory treatment of the Institute does not arise and the contention of the petitioner Society in this regard is rejected
The next attack of the petitioner Society to the impugned Act is founded on violation of the provision of Article 191c of the Constitution
It is urged on behalf of the petitioner Society that in taking over the Institute there has been an infraction of the fundamental right of the Society to form association
It is contended that by the impugned Act the management of the Society has been totally displaced and its composition changed
All assets and properties are vested in the State Government and the Commissioner is deemed to have taken charge of the Institute
It is submitted that all incidents of ownership and management have been taken over by the State and what is being left to the company is paper ownership and management and as 328 such in substance and effect the right of association of the Society is clearly affected
It is submitted that the Act is not saved under Article 194 of the Constitution because the fundamental right of the Society to form association has been interfered with not in the interests of the sovereignty and integrity of India or public order or morality
At this stage it may be pertinent to refer to the fact that by the impugned ordinances and the Act what has been taken over is the Institute
Although the name of the Society and of the Institute is the same these are two different entities
It is not disputed that by the impugned legislations the Institute and not the Society has been taken over
No restriction whatsoever has been imposed on the functioning of the Society
Indeed the provisions of the ordinances and the Act do not refer to the Society but to the Institute
The entire argument of the petitioner Society is founded on the infraction of the fundamental right of the Society to form association
The question therefore is whether the fundamental right of the petitioner Society as conferred by Article 191c has been infringed or not
It has been stated already that the Society has not been taken over by the impugned Act or ordinances
The Institute has been established by the Society in implementation of one of its objects
In other words the Institute constitutes one of the activities of the Society
The question naturally arises whether the fundamental right to form association as contained in Article 191c of the Constitution also includes within it the concomitants or the activities or the objects or purposes of an association
Our attention has been drawn to the principles laid down in two decisions of this Court relating to the interpretation of the provisions of the Constitution namely Sakal Papers P Ltd vs Union of India  and Dwarkadas Shrinivas of Bombay vs Sholapur Spinning  Weaving Co Ltd  In these two decisions it has been laid down that while considering the nature and content of the fundamental rights the Court must not be too astute to interpret the language of the Constitution in so literal a sense as to whittle them down but must interpret the same in a manner which would enable the citizens to enjoy the rights guaranteed by it in the fullest measure subject of course to permissible restrictions
Further in construing the Constitution it is the substance and the practical result of the act of the State that should be considered rather than its purely legal aspects and that the correct approach in such cases should be to enquire as to what in substance is the loss or injury caused to the citizens and not 329 merely what manner and method has been adopted by the State in placing the restriction
The above principles as laid down in those two decisions are well settled and no exception can be taken to them
It is true that the provisions of the Constitution particularly the provisions relating to the fundamental rights should not be construed in a pedantic manner but should be construed in a manner that would enable the citizens to enjoy the rights in the fullest measure
But that does not surely mean and it was not the intention of this Court to lay down that in construing the provisions relating to fundamental rights it should be stretched to the extent of covering even certain extraneous matters which would be far from the ambit and scope of the fundamental rights
Article 191c confers a right on the citizens to form association
In exercise of such a right the petitioner Society has constituted itself into an association
That right of the Society remains unimpaired and uninterfered with by the impugned Act and ordinances
It is however complained that the only activity of the Society was its right of management of the Institute which was founded in implementation of its objects
Having been taken over the Society only exists in paper
Such interference with the activity of the Society is really interference with the right of the Society to form association
It is submitted that Article 191c not only guarantees the fundamental right to form association but also its continuation
It is further submitted that in law interfering with or divesting the management of the Society of the Institute is clear interference with its right to continue the Association
In support of the above contentions reliance has been placed on behalf of the petitioner Society on Sholapur Spinnig  Weaving Company s case supra
In that case the question that came up for consideration was whether by the impugned ordinance there was deprivation of the rights of the Company in violation of Article 312 of the Constitution
It was the contention of the Government that it had taken over the superintendence of the affairs of the Company and that the impugned legislation was merely regulative in character
In rejecting the said contention this Court observed that the promulgating the ordinance the Government had not merely taken over the superintendence of the affairs of the Company but in effect and substance had taken over the undertaking itself and in the circumstances practically all incidents of ownership had been taken over by the State and nothing was left with the Company but the mere husk of title
In the premises the impugned statute had over stepped the limits of legitimate Social Control Legislation and infringed the fundamental right of 330 the Company guaranteed to it under Article 312 of the Constitution and is therefore unconstitutional
This Court found as a fact that the undertaking itself was taken over in the guise of regulatory legislation in violation of Article 312 of the Constitution
The facts of that case are completely different from those of the present case
There can be no doubt that the Institute has been taken over by the provisions of the ordinances and that Act
It is true that with the taking over of the Institute the Society lost its right of management and control of the Institute but that is the consequence of all acquisitions
When a property is acquired the owner loses all control interest and ownership of the property
Similarly the Society which was the owner of the Institute has lost all control and ownership of the Institute
It may be equally true that the Institute was the only activity of the Society but we are concerned with the right of the Society to form association
So long as there is no interference with the Society its constitution or composition it is difficult to say that because of the taking over or acquisition of the Institute which was the only property or activity of the Society the fundamental right of the Society to form association has been infringed
Mr Sorabjee learned Counsel for the petitioner Society has placed strong reliance upon the decision of this Court in Damyanti Naranga vs Union of India  In that case by a legislative enactment namely the  the institution known as the Hindi Sahitya Sammelan was declared an institution of national importance
By the said Act a statutory Sammelan was constituted as a body corporate by the name of the Hindi Sahitya Sammelan
Under section 41 of the Act the Sammelan was to consist of the first members of the Hindi Sahitya Sammelan which was a registered Society founded for the development and propagation of Hindi and all persons who might become members thereafter in accordance with the rules made in that behalf by the first governing body to be constituted by the Central Government by notification
The Act provided for vesting in the Sammelan of all property movable or immovable of or belonging to the Society
The constitutionality of the Act was challenged accordingly on the ground that it interfered with the right of the petitioners to form association under Article 191c of the Constitution
It has been held that the Act does not merely regulate the administration or the affairs of the Society what it does is to alter the composition of the Society itself
The result of this change in composition is that the members who voluntarily formed the Society are now compelled to act in that Association with other members who have been imposed as members by the Act and in whose admis 331 sion to membership they had no say
Further it has been observed that the right to form association necessarily implies that the persons forming the Society have also the right to continue to be associated with only those whom they voluntarily admit in the Association
Any law by which members are introduced in the voluntary association without any option being given to the members to keep them out or any law which takes away the membership of those who have voluntarily joined will be a law violating the right to form association
It has also been held that the right guaranteed by Article 191c is not confined to the initial stage of forming an association but it also includes within it the right to continue the association
The decision in Damyanti s case supra has no manner of application to the facts of the present case
In that case the composition of the Society was interfered with by introducing new members which was construed by this Court as interference with the fundamental right of the Society to form association and to continue the same
In the instant case the composition of the Society has not been touched at all
All that has been done is to nationalise the Institute of the Society by the acquisition of the assets and properties relating to the Institute
The Society may constitute its governing body in accordance with its rules without any interference by the Government
In this connection we may refer to a decision of this Court in All India Bank Employees  Association vs National Industrial Tribunal  Ayyangar J speaking for the Court observes that the right guaranteed by Article 191c of the Constitution does not carry with it a concomitant right that unions formed for protecting the interests of labour shall achieve their object such that any interference to such achievement by any law would be unconstitutional unless it could be justified under Article 194 as being in the interests of Public order or morality
The right under Article 191c extends only to the formation of an association or union and in so far as the activities of the association or union are concerned or as regards the step which the union might take to achieve its object they are subject to such laws as may be framed and such laws cannot be tested under Article 194
This observation supports the view we have taken that the fundamental right guaranteed under Article 191c does not extend to or embrace within it the objects or purposes or the activities of an association
In other words it does not carry with it a further guarantee that the objects or purposes or activities of an association so formed shall not be interfered with by law except on grounds as mentioned in Article 194 namely sovereignty and integrity of India or Public order or 332 morality
In the circumstances the contention made on behalf of the petitioner Society that because of the acquisition of the Institute the Society lost its right of management over the Institute and the Institute being the main or the only activity of the Society the impugned legislations interfere with the right of the Society to form and continue the association and as such unconstitutional and void under Article 191c of the Constitution is unsound and rejected
Another ground on which the validity of the Act and ordinances has been assailed is absence of legislative competence of the State Legislature
It is submitted by the learned Counsel appearing on behalf of the petitioner Society that the professed aims and objects of the Act are to ensure the high level of educational and training facilities and to nationalise this branch of education and accordingly having regard to the pith and substance of the Act it falls within Entry 66 of List I Entry 66 is as follows 66
The co ordination and determination of standards in institutions or higher education or research and scientific and technical institutions
 We may also refer to Entry 25 of List III which runs as follows 25
Education including technical education medical education and universities subject to the provisions of Entries 63 64 65 and 66 of List I vocational and technical training of labour  Counsel submits that Entry 25 of List III and Entry 66 of List I must be harmoniously construed but to the extent of overlapping the power conferred by Entry 66 must prevail over the power of the State under Entry 25
On the other hand it is submitted by Mr Kacker that the impugned legislation does not even purport to deal with co ordination and determination of standards in taking over institution of higher education
Counsel submits taking over of such institutions would affirmatively be covered under Entry 25 itself and negatively what is carved out is only co ordination and determination of standards
It is submitted that Entry 25 of List III is enough to sustain the Act
By the impugned Act the Legislature has not laid down any law relating to the subjects mentioned in Entry 66 List I or in Entry 25 List III
The Act only provides for the taking over of private educa 333 tional institutions in phases and has taken over the Institute to start with for the first phase
It may be that the purpose of such taking over or nationalisation of private educational institutions is to ensure a high level of educational and training facilities and the co ordination of the training with important industrial and business units
An Entry in any of the Lists of Seventh Schedule will apply when a law is enacted by the Legislature on any of the subjects mentioned in the Entry
In the instant case as has been noticed already the impugned Act does not lay down any law touching the subject referred to in Entry 66 List 1 or Entry 25 List III
In our opinion therefore neither of these two Entries applies
Even assuming that one of these two Entries applies
then it is Entry 25 List III and not Entry 66 List I as contended on behalf of the respondents
The impugned legislation if held to be one on education or technical education is surely not relating to any matters referred to in Entry 66 List I We are however of the view that Entry 25 also has no application
The Entry that applies to the impugned legislation is Entry 42 of List III pertaining to acquisition and requisition of property
The taking over of the private educational institutions and of the Institute in the first phase is nothing but acquisition of property
The Institute was the property of the petitioner Society and by the impugned Act the property stands transferred to and vested absolutely in the State Government free from all encumbrances
Thus the Institute has been acquired by the impugned legislation and therefore the only Entry which is relevant is Entry 42 of List III
As soon as Entry 66 of List l is excluded it is quite irrelevant which of the Entries 25 or 42 of List III is applicable
Therefore whether it is Entry 25 or Entry 42 in either case the State Legislature is competent to make enactment There is therefore no substance in the contention made on behalf of the petitioner Society that the Act is invalid because the State Legislature lacked competence in passing the Act
Now the question is whether after the repeal of Article 312 by the Constitution Forty Fourth Amendment Act 1978 any compensation is compulsorily payable for acquisition of property
The question may arise as it is held that the impugned Act is really a legislation relating to acquisition of property within the meaning of Entry 42 of List III
Indeed while urging that the Act falls within the ambit of Entry 66 of List I and as such beyond the competence of the State Legislature Mr Sorabjee submits that it does not come within the purview of Entry 42 of List III as no compensation for the acquisition of the Institute has been provided for
He has drawn our attention to 334 the observation of Chandrasekhara Aiyar J in the State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga 1008 that payment of compensation is an essential element of the valid exercise of the power to take
Besides drawing our attention to the said observation the learned Counsel has not pursued the point on the contrary it is submitted by him that as on the date of the decision in Kameshwara Singh s case supra that is before its amendment by the Constitution Seventh Amendment Act 1956 Entry 42 related to principles on which compensation for property acquired or acquisition for any other public purpose is to be determined and the form and the manner in which such compensation is to be given so the said observation was made
This means that the learned Counsel is of the view that after the repeal of Article 312 of the Constitution no compensation is compulsorily payable for the acquisition of property
In other words the point is not ultimately pressed
In the circumstances we are not called upon to decide the point or express any opinion on the same
Now we may deal with the case of Dr Jagadanand Jha Registrar of the Institute
The first ordinance namely ordinance No 15 of 1986 was promulgated by the Governor on April 19 1986 and the service of Dr Jha were terminated by an order dated April 21 1986 which is extracted below The Governor of Bihar in exercise of power under section 6 and sub sections 2 3 4 of Bihar Private Educational Institutions Take over Ordinance 1986 and Bihar Ordinance No 15 of 1986 and Education Department Notification No 99C has considered the report of the Committee and has come to the conclusion appointment and promotion of officers and workers was not done as per rules of the University nor in accordance with Government directions and notifications and their stay in the Institute was not in the interest of the said Institute
Therefore the services of following persons are dispensed with immediate effect 1
Dr Jagannath Mishra Chairman cum Director General
Sri Jagadanand Jha Registrar
 Paragraph 6 of the ordinance which is verbatim the same as 335 section 6 of the Act reads as follows A 6
Determination of terms of services of the teaching staff and other employees of the institution 1 As from the date of the notified order all the staff employed in the institution shall cease to be the employee of the institution Provided that they shall continue to serve the institution on an ad hoc basis till a decision under sub section 3 and 4 is taken by the State Government
2 The State Government will set up one or more Committees of experts and knowledgeable persons which will examine the bio data of each member of the teaching staff and ascertain whether appointment promotion or confirmation was made in accordance with the University Regulation or Government directioncircular and take into consideration all other relevant materials such as qualification experience research degree etc
and submit its report to the State Government
3 The State Government on receipt of the report of the Committee or Committees as the case may be will decide in respect of each member of teaching staff on the merits of each case whether to absorb him in Government service or whether to terminate his service or to allow him to continue on an ad hoc basis for a fixed term or on contract and shall where necessary redetermine the rank pay allowance and other conditions of service
4 The State Government shall similarly determine the term of appointment and other conditions of service of other categories of staff of the Institution on the basis of facts to be ascertained either by a committee or by an officer entrusted with the task and the provisions of subsections 2 and 3 shall apply mutatis mutandis to such case
Under paragraph 61 all the staff employed in the institution shall cease to be the employees of the Institute from the date of the notified order
Under the proviso however such employees will continue on an ad hoc basis till a decision under sub paragraphs 3 and 4 is taken by the Government
Under sub paragraph 2 of para 336 graph 6 the State Government is to set up one or more committees of experts and knowledgeable persons for the purpose of ascertaining whether or nor appointment promotion or confirmation of each member of the teaching staff was made in accordance with the University Regulation or Government directioncircular and to submit its report to the State Government
Sub paragraph 3 of paragraph 6 enjoins the State Government to decide in respect of each member of teaching staff on the merits of each case whether to absorb him in Government service or to terminate his service or to allow him to continue on an ad hoc basis for a fixed term or on contract etc
Subparagraphs 2 and 3 relate to the members of teaching staff of the concerned institution
Sub paragraph 4 of paragraph 6 of the ordinance deals with the cases of other categories of staff of the institution
It provides that the State Government shall similarly determine the term of appointment and other conditions of service of other categories of staff of the institution
It is clear that there is some distinction between sub paragraph 3 and sub paragraph 4
While under subparagraph 3 the State Government is to decide among other things whether the service of a member of teaching staff will be terminated or not under sub paragraph 4 the State Government has not been enjoined to decide whether the service of any member of a nonteaching staff will be terminated or not all that has been directed to be decided by the State Government under sub paragraph 4 relates to the term of appointment and other conditions of service
Admittedly the petitioner Dr Jagadanand Jha was not a member of the teaching staff but as noticed already he was the Registrar of the Institute which comes within the expression other categories of staff under sub paragraph 4
It is true that under sub paragraph 4 it has been provided that sub paragraphs 2 and 3 shall apply mutatis mutandis but such application will be limited to the term of appointment and other conditions of service of a member of non teaching staff of the institution
In other words the State Government may appoint a committee for the purpose of considering the term of appointment and other conditions of service of the members of the non teaching staff and the State Government has to decide accordingly
It is thus apparent that the State Government proceeded on the basis that under sub paragraph 4 of paragraph 6 of the ordinance the State Government was to consider the question of termination of the services of members of non teaching staff as in the cases of members of teaching staff as provided in sub paragraph 3 of paragraph 6 337 of the Ordinance
Even then we are not impressed with the manner and haste in which the order of termination has been passed
the ordinance was promulgated on April 19 1986 and the order of termination was made on April 21 1986
Although it is alleged that a Committee was formed and the State Government terminated the services of the petitioner on the report of the Committee we fail to understand the necessity for such haste and in the circumstances it will not be unreasonable to infer that the Committee or the State Government had not properly applied its mind before the order of termination of the services of Dr Jha was made
There can be no dispute that when there is a legislative direction for termination of the services of employees the compliance with the principles of natural justice may not be read into such direction and if such terminations are effected without giving the employees concerned an opportunity of being heard no exception can be taken to the same
But in the instant case sub paragraph 4 of paragraph 6 of the ordinance does not contain any direction for the termination of services of the members of non teaching staff
Even in spite of that if the State Government wants to terminate the services of the petitioner Dr Jha it cannot be done without giving him a reasonable opportunity of being heard for such act on the part of the State Government would be an administrative act
In this connection we may refer to our decision in KI Shephard v Union of India  Ors  wherein it has been held that the scheme making process under section 45 of the Banking Regulation Act 1949 being administrative in nature the rules of natural justice are attracted as the scheme provides for the termination of services of the employees
It is clear from the provision of sub paragraph 4 of paragraph 6 that the services of the members of non teaching staff have been intended to be continued
The petitioner Dr Jha has been working in the post of Registrar of the Institute for a pretty long time
We are therefore of the view that his services cannot be terminated without giving him an opportunity of being heard
The learned Counsel appearing on behalf of the respondents also do not seriously oppose the view that in such circumstances the petitioner Dr Jha should have been given an opportunity of being heard
It is alleged in the impugned order of termination that the appointment and promotion of the petitioner were not done as per the rules of the University nor in accordance with the Government directions and notifications and his stay in the Institute was not in the interest of the Institute
If the Petitioner was given an opportunity to 338 make a representation he could substantiate that the above findings were erroneous
In any event as the petitioner was not given an opportunity of being heard the impugned order of termination of the services of the petitioner cannot be sustained
Before parting with the cases we may record that both the Society and Dr Jha have not been able to substantiate the allegation of mala fide against the then Chief Minister of Bihar
Even assuming although holding to the contrary that the Chief Minister had acted mala fides the same cannot vitiate the legislative process in the exercise of which the impugned Act and ordinances were respectively passed and promulgated
The respondents also have failed to prove the alleged mismanagement of the Institute by the Society or by Dr Jha
Indeed they have not pressed the allegation of mismanagement
For the reasons aforesaid the impugned order of termination dated April 21 1986 of the petitioner Dr Jagadanand Jha is quashed
Writ Petitions Civil Nos 87 of 1987 and 439 of 1987 and Civil Appeal No 4141 of 1986 in so far as they relate to the said order of termination of services of the petitioner Dr Jagadanand Jha are allowed
The State Government will be at liberty to consider the question of termination of service of the petitioner after giving him a reasonable opportunity to make representation
The Writ Petitions Civil Nos
55 of 1987 and 431 of 1987 and Civil Appeal No 4142 of 1986 are dismissed There will be no order for costs in any of these matters


Summary:
 The Supreme Court issued certain directions in respect of petitioner No 9 regarding accommodation and reinstatement in service in a writ petition filed on behalf of forty petitioners working in Pension Paying officer Pokhara in Nepal praying for directions to the Union of India regarding their permanency and other benefits applicable to similar Union Government employees
In the petition for contempt it was alleged that these directions were not implemented and that consequent to the filing of the writ petition the authorities especially local officers were ill treating the Petitioners
On notice being issued affidavit on behalf of respondents Nos
1 to 3 and 5 were filed tendering unconditional apology and explaining their positions regarding the implementation of the Court s orders
Respondent No 6 who was the officer ln charge of the Pension Paying officer and who was responsible for the implementation of the Court s orders also tendered an unconditional apology and stated in his affidavit that petitioner No 9 was dispossessed of the residential accommodation on 14th August 1987 by which time the Court s orders of 7th August 1987 had not been received by him and the accommodation had already been given to another person that petitioner No 9 was later restored to service and given possession of similar accommodation and that the rent paid by the petitioner for the private accommodation will be paid out of Government account and requested for condonation 281 of delay in implementing the orders of this Court
Disposing of the Petition  HELD This Court records it serious concern and disapproval of the growing conduct of parties and public officers in particular of ignoring the directions of the Court and the multiplying instances of confrontation
285F The Court including the apex one is a part of the State and is a built in mechanism of the Constitution to administer justice in accordance with law
For discharging that duty the Court has got to adopt an attitude of critical assessment of situations connected with litigation brought before it for adjudication
The manner of functioning of the Court in accord with the Rule of Law has to be dispassionate objective and analytical
The Judges who preside over these courts do not act with a sense of superiority nor do they look down upon others in the community
285F G In order that the system may efficiently work and the purpose for which the courts are established is duly served it is necessary that everyone within the framework of the Rule of Law must accept the system render due obedience to orders made and in the event of failure of compliance the rod of justice must descend down to punish
Everyone within the system must realise this situation and should not unnecessarily get into a confrontation
285H 286A B In the instant case there is some material which if probed into further might have established that respondent No 6 had notice of the order of this Court before physical dispossession of the petitioner was effected
There is allegation of adoption of an attitude of resentment by respondent No 6 or for the matter of that the local officers when the writ petition was filed in this Court
That backdrop could supply the motive for the delay in complying with the directions of this Court
It is however not considered expedient to probe further into the matter on account of the fact that there has been compliance and each of the respondents has tendered unqualified apology which is accepted and the contempt notice is discharged
285D E 286B