No 1 of 1968
Petition under article 32 of the Constitution of India for the enforcement of the fundamental rights
MC Setalvad and R Gopalakrishnan for the petitioners
CK Daphtary Attorney General and UP Singh for respondents No 1 and 4
PK Chatterjee for respondent No 3
R Gopalakrishnan for the interveners
The Judgment of the Court was delivered by Hidayatullah CJ
The Principal and the Rector of St Xavier s Coliege Ranchi and two parents of students have filed the present petition under article 32 of the Constitution
The petition also purports to be filed on behalf of St Xavier s College Ranchi and the Association of St Xavier
The petitioners challenge section 48 A of the  Bihar State Universities University of Bihar Bhagalpur and Ranchi Act 1960 as amended by Second Amendment Act 1961 as ultra vires articles 29 and 30 of the Constitution
St Xavier s College was established by the Jesuits of Ranchi
It was affiliated to Patna University in 1944
The management of the college vests in a Governing Body consisting of 11 members
They are i The Superior Regular of Ranchi Jesuit Mission President ex officio
75 ii v Four Counsellors to the Superior Regular to be nominated by the Jesuit Mission authorities
vi The Principal of the College Vice President and Secretary ex officio
vii One representative of the teaching staff of the college elected by the members of the staff
viii One representative of the Patna University
ix xi Three persons to represent Hindu Muslim and Aboriginal interests
 The terms of service of Religious staff are determined by the Jesuit  Mission Authorities but those of the members of the Lay staff including their appointment are determined by the Governing Body
All appointments to
the teaching staff both Religious and Lay are reported to the Syndicate of the Patna University
The object of rounding the college inter alia is to give Catholic youth a full course of moral and liberal education by imparting a thorough religious instruction and by maintaining a Catholic atmosphere in the institution  The college is however open to all non catholic students
All non catholic students receive a course of moral science
The College was thus rounded by a christian minority and the petitioners claim they have a right to
administer it a constitutional right guaranteed to minorities by article 30
The petitioners  complaint is that the Bihar Legislature passed an amending Act and introduced in the Bihar Universities Act section 48 A to come into force from March 1 1962 which deprives them of this protection and is therefore ultra vires
The provisions of this section are as follows 48A Establishment of a University Service Commission for affiliated colleges not belonging to the State Government and
its powers and functions  1  With effect from such date as the State Government may by notification in the Official Gazette appoint there shall be established a Commission by the name of the University Service Commission
2 The said Commission shall be a body corporate having perpetual succession
and a common seal and shall by the said name sue and be sued
3 The commission shall consist of a Chairman and two other members to be appointed by the State Government who shah be whole time officers 76 and shall hold office for a term of three years from the date of assumption of charge of office on the expiration of which term they or any of them may be reappointed for only one more term which shall not exceed three years
4 There shall be a Secretary to the Commission who shall also be a whole time officer to be appointed by the State Government
5 Other terms and conditions of service of the Chairman members and the Secretary shall be determined by the State Government
6  Subject to the approval of the University appointments dismissals removals termination of service or reduction in rank of teachers of an affiliated college not belonging to the State Government shall be made by the governing body of the college on the recommendation of the Commission
7 iIn making recommendations for appointment to every post of teacher of any such affiliated college the Commission shall have the assistance of two experts in the subject for which an appointment is to be made of whom one shall whenever possible be a teacher of the University to be nominated by the Syndicate and the other shall be a person other than a teacher of the University to be nominated by the Academic Council
ii The experts shall be associated with the Commission as assessors whose duty it shall be to give expert advice to the Commission but who shall have no right to vote
8 The Commission shall wherever feasible recommend to the governing body of a college for appointment to every post of teacher of the college names of two persons arranged in order of preference and considered by the Commission to be the best qualified  therefore
9 In making appointment to a post of teacher of a college the governing body of the college shall within three months from the date of the receipt of the recommendation under sub Section 8 make its selection out of the names recommended by the Commission and in no ease shall the 77 governing body appoint a person who is not recommended by the Commission
10 Notwithstanding anything contained in the preceding sub sections it shall not be necessary for the governing body to consult the Commission if the appointment to a post of teacher is not expected to continue for more than six months and cannot be delayed without detriment to the interest of the College Provided that if it is proposed to retain the person so appointed in the same post for a period exceeding six months or to appoint him to another post in the college the concurrence of the Commission shall be necessary in the absence of which the appointment shall be deemed to have been terminated at the end of six months
11 ii The Commission shall be consulted by the governing body of a college in all disciplinary matters affecting a teacher of the college and no memorials or petitions relating to such matters shall be disposed of nor shall any action be taken against or any punishment imposed on a teacher of the college otherwise than in conformity with the finding of the Commission Provided that it shall not be necessary to consult the Commission where only an order of censure or an order withholding increment including stoppage at an efficiency bar or an order of suspension pending investigation of charges is passed against a teacher of a college
12 It shah be the duty of the Commission to present annually to the University a report as to the work done by the Commission in relation to such colleges affiliated to the University and a copy of the report shall be placed before the Senate at its next meeting and the University shall further prepare and submit to the State Government a memorandum explaining as respects the cases if any where the advice of the Commission was not accepted the reasons for such non acceptance and the State Government shall cause the same to be laid before the Legislature of the State
This provision completely
takes away the autonomy of the Governing Body of the College and virtually vests the control of 78 the college in the University Service Commission
Long correspondence ensued into
which it is not necessary to go because of what followed
The University began enforcing Article 1782 of the New Statutes
That Article provides 1781 All appointments of teachers in admitted colleges shall be made by the Governing Body of the college concerned on the recommendation of the University Service Commission and shall be subject to the approval of the Syndicate
No such appointment shall be approved unless a the post exists or the Vice Chancellor is satisfied and its creation is necessary b the claims of teachers possessing the requisite qualifications and serving in a lower grade in the college for promotion have been examined and rejected c the vacancy was duly advertised except where promotion was recommended d the person appointed possesses the minimum qualifications prescribed for the post and e the appointment was made by the Governing Body at its meeting
2 Within a fortnight of the appointment of any teacher or teachers
made by the Governing Body of any admitted college on the recommendation of the University Service Commission the Secretary of the College shall forward to the University along with a copy of the advertisement for the post the following information a Names of the candidates recommended by the University Service Commission together with the name or names of the candidates appointed by the Governing Body b Age c Home address d Previous appointment held by them if any e Whether they are qualified to teach through the medium of Hindi f Nature of the appointment and the vacancy against which the appointment has been made g If the order of preference indicated by the University Service Commission has not been followed by the Governing Body the reason for not 79 following the order of preference shall be indicated
If no appointments were made against the recommendation received from the University Service Commission the reason for not making the appointments shall also be indicated
 More correspondence followed
The University asked for an explanation under article 179 of the Statutes how the Governing Body had by passed the University Service Commission and some teachers were appointed without prior consultation
Finally the University by a letter September 26 1967 communicated to the College that the Senate had decided on September 24 1967 to withdraw the affiliation of the College under Article 171 of the Statutes for violating the said provisions of the Act and the Statutes With effect from the session of 1969 70
The Senate however was generous enough to put on record its appreciation of the good work done by the college in the field of education
The petition was then filed to
impugn the offending section 48 A
While this petition was pending in this Court the Governor of Bihar promulgated an Ordinance on July 16 1968
It amended the Bihar State Universities Act 1960 by inserting section 48 B after section 48 A
The new section read 48 B College established and administered by a minority entitled to make appointments etc
with approval of the Commission and the Syndicate
Notwithstanding anything contained  in sub section 6 7 8 9 10 and 11 of Section 48 A the Governing Body of an affiliated college established by a minority based on religion or language which the minority has the right to administer shall be entitled to make appointments dismissals removals termination of service or reduction in rank of teachers
or take other disciplinary measures subject only to the approval of the Commission and the Syndicate of the University
Simultaneously the Magadh University Act 1961 was also similarly amended
The petitioners therefore claim the protection of section 48 B and submit that as an affiliated college established by a minority based on religion or language they are exempt from the operation of section 48 A 6 7 8 9 10 and 11
They say that if this position is accepted they will withdraw the petition which has become superfluous
The learned Attorney General while conceding that the Jesuits answer the description of minority based on religion argues that the protection is available only if the institution was rounded to conserve language script or culture  and since the college is open to all sections of the people and there 80 is no programme of this kind the protection of Article 301 is not available
In our opinion this argument cannot be accepted
Before we give our reasons we may read articles 29 1  and 30  1  which are involved 29
Protection of interests of minorities
1  Any section of the citizens residing in the territory of India or any part thereof having a distinct language script or culture of its own shall have the right to conserve the same
2 30
Right of minorities to establish and administer educational institutions
1 All minorities whether based on religion or language shall have the right to establish and administer educational institutions of their choice
The learned Attorney General seeks to read into the protection granted by article 301 a corrollary taken from article 291
He concedes that the Jesuits community is a minority community based on religion and that therefore it has a right to establish and administer educational institutions of its choice
But he contends that as the protection to minorities in article 29 1  is only a right to conserve a distinct language script or culture of its own the college does not qualify for the protection of article 301 because it is not rounded to conserve them
The question therefore is whether the college can only claim protection of section 48 B of the Act read with article 301 of the Constitution if it proves that the college is furthering the rights mentioned in article 29 1 
In our opinion the width of article 301 cannot be out down by introducing in it considerations on which article 29 1  is based
The latter article is a general protection which is given to minorities to conserve their language script or culture
The former is a special right to minorities to establish educational institutions of their choice
This choice is not limited to institution seeking to conserve language script or culture and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities
That is a circumstance irrelevant for the application of article 30 1  since no such limitation is expressed and none can be implied
The two articles create two separate rights although it is possible that they may meet in a given case
81 The learned Attorney General refers to two cases of this
Court which he thinks support his contention
What we find in them does not bear out this submission
On the other hand they point the other way
In In re the Kerala Education Bill 195711 articles 29 and 30 were considered in relation to an Education Bill referred by the President of India to the Supreme Court for its advisory opinion
The points that arose in the case were different but certain passages from the opinion were brought to our notice
The Court after pointing out that articles 29 and 30 are grouped together under the heading Cultural and Educational Rights points out that the articles are intended to confer certain fundamental rights on certain sections of the community which constitute minority communities
Explaining clause 1  of article 29
this Court observed at p 1047  
It is obvious that a minority community can effectively conserve its language script or culture by and through educational institutions and therefore the right to establish and maintain educational institutions of its choice is a necessary concomitant to the right to conserve its distinctive language script or culture and that is what is conferred on all minorities by article 301 which has hereinbefore been quoted in full  
The learned Attorney General arguesues that here the two articles were read together
But the other side relies on two other passages
The first is at page 1050
The argument on behalf of the State there appears to be that there are three conditions
before the protection and privileges of article 30 1  may be claim  1  there must be a minority community 2 one or more of the members of that community should after the commencement of the Constitution seek to exercise the right to establish an educational institution of his or their choice and  3  the educational institution must be established  for the members of his or their own community This Court repelled the contention that the protection and privilege of article 301 extended only to the educational institutions established after the Constitution
Dealing with article 29 1  this Court observed The real import of article 292 and article 301 seems to us to be that they clearly contemplate a minority institution with a sprinkling of outsiders admitted into it
By admitting a non member into it the minority institution does not shed its character and cease to be 1 1959 SCR 995 82 a minority institution
Indeed the object of conservation of the distinct language script and culture of a minority may be better served by propagating the same amongst non members of the particular minority community
In our opiniont it is not possible to read this condition into article 301 of the Constitution
 While one side considers that the observation suggests that the two articles go together the other side contends that mixing of the other communities with the minority community in the benefits of educational institution shows that the real test is not that there must be an institution purely of one community
The learned Attorney General places great importance on the word sprinkling  and says that the minority must found the institution for itself and not for others and the aim or object must be to conserve distinct language script or culture
In our opinion both sides are attempting to read far too
much into
these observations
They are not intended to be read in every context
On the other hand in Rev Sidhaibhai Sabhai and others vs State of Bombay and Another1 there is the following passage   
The fundamental freedom is to establish and to administer educational institutions it is a right to establish and administer what are in truth educational institutions institutions which cater to the educational needs of the citizens or sections thereof
 The emphasis here was rightly placed not upon the needs of the community exclusively but upon the educational needs of the citizens or sections thereof
In other words the suggestion that article 30 1  is limited to the needs of a single community or that only its own culture language or script need to be provided for is not the right approach
Here too if we may say so the point decided was different but the observation does make article 30 1  much wider than the learned Attorney General would have us hold
In our judgment the language of article 301  is wide and must receive full meaning
We are dealing with protection of minorities and attempts to whittle down the protection cannot be allowed
We need not enlarge the protection but we may not reduce a protection naturally flowing from the words
Here the protection clearly flows from the words and there is nothing on the basis of which aid can be sought from article 29 1 
We are therefore quite clear that St Xavier s College was rounded by a Catholic Minority Community based on religion and that this educational institution has the protection of article 30 1  1   850 83 of the Constitution
For the same reason it is exempted under section 48 B of the Act
The petition will therefore be allowed with this declaration but in the circumstances of the case we make no order about costs
RKPS Petition allowed


Summary:
The St Xavier s College was established by the Jesuits of Ranchi and was affiliated to Patna University in 1944
The management of the College was in the hands of a governing body consisting of 11 members
The terms of service of the religious staff of the College were determined by the Jesuit Mission authorities and those of the lay staff including their appointment were determined by the governing body of the College
The object of rounding the college inter alia was to give Catholic youth a full course of moral and liberal education by imparting a thorough religious instruction and by maintaining a Catholic atmosphere in the Institution
However the college was open to non Catholics and all non catholic students received a course of moral science
The petitioners in the present petition under Article 32 contended that the college was rounded by a Christian minority and claimed the right to administer it as a constitutional right guaranteed to minorities by article 30
The petitioner s complaint was that the Bihar Legislature by introducing section 48 A in the Bihar Universities Act with effect from
March 1 1962 deprived them of the right under article 30 in that Its provisions required inter alia that appointments dismissals reduction in rank etc
 of staff must be made by the Governing body on the recommendation of the University Service Commission for affiliated colleges in no case could the Governing body appoint a person not recommended by the Commission the Commission had to be consulted in all disciplinary matters and any punishment imposed on a teacher only in accordance with the findings of the Commission etc
Subsequent to the introduction of section 48 A in view of differences arising between the University and the college the University withdrew the affiliation of the college on September 26 1967 for violating the provisions of the Act and the statute of the University
While the present petition under article 32 of the Constitution was pending section 48 B was inserted into the Bihar Universities Act whereby it was provided that the Governing body of affiliated colleges established by a minority based on religion or language which the minority had a right to administer would be entitled to make appointments dismissals termination of service or reduction in rank of teachers or take other disciplinary measures subject only to the approval of the Commission and the Syndicate of the
University
The petitioners therefore also claimed the protection of section 48 B
On behalf of the respondents it was conceded that the Jesuits answered the description of a minority based on religion but it was contended that as the protection to minorities in article 291 is only a right to conserve a distinct language script or culture of its own the college did not qualify for the protection of article 301 because i it was not bounded Sup
CI69 6 74 to conserve them and ii it was open to all sections of the people
The question therefore was whether the college could only claim protection of section 48 B of the Act read with article 301 of the Constitution if it proved
that it was furthering the rights mentioned in article 291
HELD The protection claimed by the petitioners clearly flowed from the words of Article 301
The width of article 301 cannot be cut down by introducing in it considerations on which article 291 is based
The latter article is a general protection which is given to
minorities to conserve their language script or culture
The former is a special right to minorities to establish educational institutions of their choice
This choice is not limited to institutions seeking W conserve language script or culture and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities
This is a circumstance irrelevant for the application of article 301 since no such limitation is expressed and none can be implied
The two
articles create two separate rights although it is possible that they may meet in a given case
80 G H In re the Kerala Education Bill 1957 1959 SCR 995 Rev Sidhajbhai Sabhai and Ors
vs State of Bombay and Anr
  850 considered