ORDER
1. In this application under [SECTION] and [SECTION] of the [ACT] the petitioner, through its Secretary, is Zakia Afaque Islamia College, Siwan, in the district of Siwan, which has prayed for the issuance of a writ in the nature of mandamus directing respondent No. 2, namely, the Vice-Chancellor of the [ENTITY], Muzaffarpur, to affiliate the petitioner College in the Faculty of Education and/or any other writ/direction to issue to the respondents for an appropriate relief in this regard so as to permit the students of the petitioner-College to take their Bachelor of Education examination of the Bihar University for the session 1980-81 and/or any other relief which the petitioner may be entitled, to on the facts and in the circumstances of the case.
2. Although, the hearing of the case has been protracted rather long, on account of the tenacity of the learned counsel for the University, the broad facts relevant for the disposal of this application are more or less admitted. It is worthwhile to mention here mat initially at the time when interim relief was sought a counter-affidavit was filed on behalf of the University (for all practical purposes the Vice-Chancellor) that was already on record. By an order dated 17th July, 1981 a Bench of this Court, consisting of the learned the Chief Justice and [ENTITY], J., had directed that further counter-affidavit, if any, must be filed by the 30th July, 1981 after serving copies on the other side. This was not done. When the case was taken up for final hearing on 7th Aug., 1981 a counter-affidavit on behalf of the University and another counter-affidavit on behalf of the State of Bihar, respondent No. 1, were filed in course of the hearing. In view of the order of die Bench and also in view of the provisions of [SECTION] of the Patna High Court Rules we had earlier rejected orally the prayer of the learned counsel appearing for the University as also for the State of Bihar to entertain those counter-affidavits. Since, however, on the 8th Aug., 1981 the case was adjourned on account of non-availability of the Bench to hear this case, when the matter was taken up on 17th Aug., 1981 both learned counsel for the University and the State prayed that since the date of the commencement of the examinations ' had been postponed and there had been now sufficient time for the petitioner to test the correctness of the statements made in the counter-affidavits which were sought to be entertained by this Court, their prayer to entertain these counter-affidavits may be accepted. We, accordingly, since no formal written order was passed and recorded in the order sheet, accepted the counter-affidavits as part of the records of the case. Be that as it may, these counter-affidavits are of no avail for the purpose of disposal of this writ application.
3. As we had indicated earlier, the relevant facts for the disposal of this writ application are short and simple. In the year 1971 Zakia Afaque Islamia College was established. After due correspondence with the University Authorities and the State of Bihar an order was passed by the State Government on 14th Jan., 1978 declaring this institution to be a Minority Institution; the order is contained in Annexure-5 to the writ application. The College was affiliated in all the faculties of courses of studies then in existence to the University. On 22nd June, 1980 an application was made by the petitioner-College to the University for affiliation in the faculty of Education; that application is marked Annexure-1 to the writ application. On 16th July, 1980 the Vice-Chancellor directed the petitioner-College to deposit the fee for the Inspector who admittedly under the law has to inspect and make a report with regard to affiliation in any faculty. On 19th July, 1980 the College deposited the fee. Nonetheless no Inspector was ever deputed to go and inspect the affairs with regard to the courses of study in the faculty of Bachelor of Education but on 23rd Dec., 1980 (vide Annexure-2 to the writ application) the Registrar of the University under the directions of the Vice-Chancellor wrote to the State Government as to whether the affiliation may be granted in the faculty with regard to the courses of Bachelor of Education to the College or not. This letter was admittedly purported to be a reference under [SECTION] of the [ACT]. It is worthwhile to quote here [SECTION] of the Act:
"4. There shall be the following purposes and powers of the University:
(19) To affiliate or dis-affiliate Colleges according to statutes subject to prior approval of the State Government."
It is also pertinent to point out here that from 1978 onwards several ordinances had been promulgated by the Governor of Bihar culminating in the last Ordinance, namely, [ACT] perpetuating the same thing from time to time. [SECTION] of the Ordinance, inter alia, lays down that without the previous permission of the State Government which the State Government may accord on such terms and conditions as it may deem fit and whether previous permission had been accorded subject to such terms and conditions as may be determined by the State Government without fulfilling those terms and conditions organized, maintained, managed or promoted any School or College for undertaking, conducting, providing for or imparting physical training or physical education or teachers training or teachers education by way of training, admit or offer to admit to a course of studies led to an examination for the award of a degree, diploma or certificate in branches of teachers training or any allied branches of teachers training of any University or Body incorporated by any law of the Central or the Slate Government. As we have already stated earlier, this College was declared by the State Government to be a Minority Institution" on 14th Jan., 1978. This question had once come up for consideration before another Bench of this Court as to whether the Ordinances in question emanating in 1978 and perpetuated from time to time till today would be applicable to the Minority Institutions governed by [SECTION] of the [ACT]. In the case of the [PRECEDENT] it was held by another Bench of this Court that the Ordinance did not apply to the Minority Institutions governed by [SECTION] of the [ACT]. That judgment was delivered on 12-9-1979. It was only thereafter that the petitioner-College started courses of studies in the faculty of Education and as aforesaid applied for affiliation in that faculty to the University. The University rightly under the provisions of [SECTION] of the [ACT], aforementioned, made a reference to the State Government. The State Government, without assigning any reason whatsoever, wrote back that in view of the Ordinance it was the general policy of the Government not to grant affiliation or recognise courses of studies in the faculty of Education (Training). That direction of the State Government to the University is incorporated in Annexure-C to the counter-affidavit filed. The only reason assigned for non-affiliation of the courses of studies in this faculty to the petitioner-College is that since it was the policy of the State Government not to grant affiliation in the courses of studies in this faculty to any institution not under the control of the State Government, the application for affiliation should be rejected. The students had already been admitted and had already undergone more or less one year course of study in the faculty concerned after the judgment of this Court. In view of the State Government's decision taken in Annexure-C the petitioner-College was not granted affiliation. This is the main cause of action bringing the petitioner to this Court.
4. The only question for determination in this case, therefore, is as to whether the order of the State Government, as contained in Annexure-C to the counter-affidavit, and the order of refusal of the University to affiliate the petitioner-College in the faculty of Education are legally valid or not. It was argued very tenaciously by Mr. [ENTITY], the learned counsel for the University, that the Bench decision of this Court, referred to above, was made ex concessis by the learned Advocate General, appearing in that case, on behalf of the State of Bihar and, therefore, no legal sanctity should attach to such a judgment. It is true that concession on question of law is not binding in all subsequent cases in which such a question arises. We, therefore, proceed upon the assumption in favour of the respondents that the previous Bench decision of this Court may not be binding on us and so we, therefore, start from a scratch to see as to whether the provisions of the Ordinance apply to Minority Institutions governed by [SECTION] of the [ACT]. It is well established canon of construction of statutes that if two views are possible, namely, one which could render the statutory provisions ultra vires and the other which would maintain its validity, the construction which ought to be put upon such statutory provisions is that which will not render them ultra vires. There is nothing in the Ordinance which goes to show that it specifically governs the Minority Institutions declared so under [SECTION] of the [ACT]. In our view, therefore, the construction which learned counsel for the University and learned Govenment Pleader, appearing on behalf of the State, seek to canvass before us that the provisions of the Ordinance would also govern the Minority Institutions must be overruled. This is for the simple reason that if the provision of [SECTION] of the Ordinance or for that matter the entire Ordinance in question is to govern the Minority Institutions also there would be a likelihood of infringement of the provisions of [SECTION] of the [ACT].
5. Mr. [ENTITY], learned counsel for the University, argued rather vehemently that the petitioner-College had no legal right coupled with any legal obligation on the part either of the State Government or the University to have any courses of study in any faculty to be affiliated to the University, We are afraid, the argument is completely misconceived. It is true that there is no fundamental right of a Minority Institution to affiliation to a University. When a Minority Institution applies to a University to be affiliated, it expresses its choice to participate in the system of general education and courses of instruction prescribed by that University. It agrees to follow the uniform courses of study. Affiliation is regulating the educational character and content of the Minority Institutions. These regulations may be reasonable in the interest of general secular education and may also conduce to the improvement in the stature and strength of the Minority Institutions. Therefore, measures which will regulate the course of study, the qualifications and appointment of teachers, the conditions of employment of teachers, the health and hygiene of students, facilities for libraries and laboratories, are all matters germane to affiliation of Minority Institutions, Therefore, regulatory measures for affiliation for the purpose of uniformity, efficiency and excellence in educational courses cannot be said to infringe the provisions of [SECTION] of the [ACT] (vide [PRECEDENT]). Although, therefore, there may not be a fundamental right for affiliation, there is certainly a legal right of affiliation subject to such regulatory measures and conditions and limitations germane to the question in issue, This contention of Mr. [ENTITY] must, therefore, be overruled. If any condition or limitation by way of regulatory measure having a reasonable nexus with the proficiency or excellence in the standard of courses of study imposed by the appropriate authority' is fulfilled then it cannot be said that a Minority Institution has got no legal right of affiliation in any faculty or courses of study. Otherwise the whole purpose of [SECTION] will be frustrated and rendered nugatory as held by the Supreme Court in the case of All Saints High School v. Govt. of Andh. Pra.
(AIR 1980 SC 1042). [SECTION] by its very nature implies that where an affiliation is asked for, the University concerned cannot refuse the same without sufficient reason or try to impose such conditions as would completely destroy the autonomous administration of the educational Institutions. In the instant case no reason, no condition, no limitation, nothing germane to the question in issue with regard to the proficiency and excellence in the courses of study in the faculty concerned has been assigned whatsoever. The only reason assigned is that since it is the policy of the State Government not to allow any non-Government Institution to adopt or admit any student in the faculty of Education, namely, Bachelor of Education, the petitioner's application for affiliation is rejected. This is no valid reason whatsoever, specially in view of the fact, as we have already held earlier, that the provisions of the Ordinance do not govern the Minority Institutions.
6. Both Mr. [ENTITY], for the University, and Mr. [ENTITY], Government Pleader No. 4, on behalf of the State, then pursuaded us to go through the counter-affidavit filed by them in course of the hearing of this writ application and pointed out that it had been asserted in the counter affidavits concerned that the petitioner College was not regulating its affairs in a proper manner and that there were adverse remarks of the then Inspector of Colleges from time to time. These assertions made in the counter-affidavits filed could not be rebutted by any rejoinder thereto on behalf of the petitioner since, as we have already said earlier, their prayer for entertainment of these counter-affidavits had earlier been rejected by us on 7th August, 1981 and it was only on 17th August, 1981, at the final hearing, that we granted them the indulgence of entertaining these counter-affidavits. Learned counsel for the petitioner, therefore, when called upon to meet these allegations, produced before us, after showing to the learned counsel for the University and the State, the latest inspection report of the Inspector of Colleges of the [ENTITY] on the basis of an inspection made on 19th May, 1979 by the Inspector of Colleges in original. This report, inter alia, states :
"The results of the University examinations have been above the average. There is a proper academic atmosphere in the College. In a surprise visit in Part I (Inspector of Colleges, Arts and Commerce) found that several classes were going on even after 3 P. M. There is a team spirit among the teachers and enthusiasm among the members of the Trust and the people. The College has a bright future."
In view of this report it is surprising enough to find that wild allegations have been made against the petitioner-College both by the University and the State Government in their counter-affidavits. Only more so, it does not stand to reason as to why when on 22nd June, 1980 (vide Annexure 1) an application was made to the University for affiliation in the faculty of education the Vice-Chancellor ordered on 16th July, 1980 that inspection fee be deposited by the College for the Inspector of Colleges to probe into the affairs of the College in this faculty and pursuant thereto the petitioner deposited the fee on 19th July, 1980 and yet no Inspector was ever sent to the College at all. Wherefrom then and from what sources, information adverse to this Institution, was received by the University and the State Government on account of which they now claim that the petitioner is not entitled to affiliation in the faculty of Education. On the contrary in spite of petitioner having deposited the inspection fee and no Inspector having been deputed by the University for the purpose germane to the question, the Vice-Chancellor directed that the matter be referred to the State Government under [SECTION] of the 1976 Act. And that letter (Annexure 2) clearly states that the State Government's approval was sought in view of the Ordinance as to whether the State Government would accord its permission or approval to the affiliation of this Institution in the faculty of Education and the blanket order passed by the State Government, as contained in Annexure C, is to the effect that since it was the general policy of the Slate Government not to accord affiliation to any non-Government Institution in the faculty of Education, no affiliation should be granted. Assuming in favour of the respondents that the Ordinance applies even to the Minority Institutions under [SECTION] of the [ACT] no condition has been imposed, no reasonable limitation has been put or for that matter no reason has been assigned at all having any nexus with the proficiency or excellence of the course of study in the faculty concerned of this Institution. Such an order cannot countenance any legal provision, for that would be frustrating the very purpose of [SECTION] of the [ACT].
7. Catching at the last straw, Mr. [ENTITY] argued that the writ petition was not maintainable because it had been filed by an individual, namely, [ENTITY], on behalf of the College and there was no averment in the petition that he was duly authorised by the Governing Body of the College to sue or to be sued on behalf of the Institution. Learned counsel for the petitioner, in course of his reply, when called upon to meet this point, produced the [ACT] of the A. G. M. Trust Z. A. Islamia College, Siwan (Minority College affiliated to the [ENTITY], Muzaffarpur). It, inter alia, lays down the powers and duties of the office bearers including the Secretary. In Clause (3) (h) of the Caption 'Powers and Duties of Office Bearers' it has been specifically laid down that the Secretary shall have the power to represent the Governing Body, the College, and also the Trust in cases relating to College, in all legal proceedings and to sign and to verify pleadings on their behalf, in such proceedings of the cases. This contention of learned counsel for the University also, therefore, is meritless.
8. For the foregoing reasons, we are constrained to allow this application, quash the order of the State Government as contained in Annexure-C to the counter-affidavit and we direct that a writ of mandamus do issue to the [ENTITY], respondent No. 2, to have an inspection report with regard to the faculty in question within one month from today and if no irregularity is found or no reason having any connection with the question at hand is assigned, to affiliate the petitioner-College in the faculty of Education. As a necessary corollary, the students having already been admitted and who have already undergone one year's course of study shall be permitted to sit at the ensuing examinations and so long as any final order is not passed the University is restrained from starting the examination in the faculty of Education. In the alternative we direct the University to permit such students as aforementioned to appear at the examination subject only to their final results being published after the report of the Inspector of Colleges or final order with regard to the affiliation by the University. On the facts and in the circumstances of the case the parties are directed to bear their own costs.