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2016 Supreme(Pat) 706
IN THE HIGH COURT OF JUDICATURE AT PATNA
I.A. Ansari and Anjana Mishra, JJ.
Milli Trust at Stadium Road - Petitioner
Versus
The State of Bihar through Principal Secretary, Department of Education and Ors. - Respondents
Civil Writ Jurisdiction Case No.4966 of 2016
Decided On : 27-10-2016
For the Petitioner:Mr. P.K. Shahi, Senior Advocate, Mr. Vikas Kumar, Advocate
For the Respondent-State:Mr. Lalit Kishore, PAAG, Mr. Piyush Lal, Advocate
For the Respondent-Univ.:Mr. Ajay Bihar Sinha, Advocate
Headnote:Constitution of India–Article 30(1) read with Bihar State Universities Act, 1976–Section 60(5) & 2nd Proviso to Para 1 of the Statute of the University–Right of a minority education institution to constitute a governing body/a management council–it is settled and undisputed position of law that right to manage, run and control a minority educational institution is a fundamental right of minority under Article 30(1) of the Constitution–it is also undisputed that the right to constitute a governing body for such institution is also a fundamental right under Article 30(1) of the Constitution–even though the fundamental right under Article 30(1) of the constitution, in entirety is not absolute, certain facts and components of the fundamental right under Article 30 of the Constitution, are irreducible and ossified; right to constitute a governing body and select members of their choice for such body, is one such right of minorities under Article 30(1) of the Constitution–at the same time, it is the duty of the State to check mal-administration in such educational institutions and regulate the functioning of the governing bodies in accordance with law, but not composition and choice of the members of such governing body–proviso to Section 60 does not satisfy the test of ensuring proper accordance standards, atmosphere and infrastructure (including qualified staff) and the prevention of mal-administration by those incharge of management–in the present case, the ad hoc committee, constituted under the impugned notification has replaced the Governing Body of the institution which is in with violation of Article 30 (1) of the Constitution–Section 60(1) of the Act and proviso to Para 1 of the Statute No. 32 of the University framed thereunder to the extent it applies to a minority educational institution being violative of Article 30 (1) of the Constitution, held ultra vires and declared null and void–Writ application allowed. (Paras 50, 51, 60 & 61)
AIR 1958 SC 956, (1969)1 SCC 863, (1984)1 SCC 717, (2002)8 SCC 481 = 2003 (1) PLJR (SC) 1, AIR 1963 SC 540, (2005)6 SCC 537 = 2005 (4) PLJR (SC) 77, (2014)8 SCC 1 = 2014 (3) PLJR (SC) 86, (2016)7 SCC 353, AIR 1971 SC 1737–Referred.
I.A. Ansari, J.
India is a mosaic of diversity as it is a multicultural and pluralistic society. At the time of independence, our aim was to achieve unity in diversity and preserve individual identities. Keeping these lofty ideals in mind, framers of our constitution set about drafting the supreme law of the land, i.e. the Constitution of India. No wonder, therefore, that our Constitution provides to everyone the opportunity to enjoy the whole gamut of human rights within a cohesive and stable framework.
2. The petitioner, in the present writ petition under Article 226 of the Constitution of India (hereinafter referred as ‘the Constitution’), is a registered trust, namely, the Milli Trust (hereunder also referred as ‘the trust’). The Trust, founded and governed by a minority community, established an educational institution, namely, Amir Hassan Sukur Ahmad Mahavidyalaya, Madhubani (hereinafter referred interchangeably as ‘the institution’ or ‘the College’).
3. The management of the college made representation to the Lalit Narayan Mithila University (referred as ‘the university’), to obtain a declaration and certification of a minority educational institution. The Government of Bihar, after considering the recommendations of the University, vide letter dated 27.07.1995, declared the institution as a minority institution and granted permission to impart education in various subjects. The Government of Bihar, vide letter dated 22.08.2008, granted permanent affiliation to the college for imparting education in the subject mentioned therein.
4. The Bihar State Universities Act, 1976 (referred as ‘the Act’), in Clause (5) of Section 60, provides that governing body or management committee of a college, established and administered by a minority community, shall be constituted in accordance with the provisions of the Statues of the University, framed under the provisions of the Act.
5. By its communication dated 27.11.2015, the University informed the College to implement the provisions of the statutes of the University, so far as composition of the Governing Body was concerned. This letter stated that the Governing Body of the College was to be constituted by the Syndicate after considering the advice of the sponsor authorities of the College. The Registrar of the University, by letter dated 27.11.2015, directed the Secretary of the College to send papers related to the minority status of the institution, and also the document in support of bona fide of the sponsoring authorities, within three days from the receipt of such letter, failing which, the letter states, the process of constitution of adhoc committee was to be initiated, as per the provisions of the statutes of the University. The Secretary of the college submitted a reply to the Registrar of the University vide letter dated 02.02.2015, stating therein that the college has been constituted and is administered/managed under Article 30(1) of the Constitution of India by a registered society (trust) of the Member of the Muslim Minority Community.
6. The Secretary of the college, vide letter dated 02.12.2015, submitted his reply stating that the college has been constituted and is administered/managed under Article 30(1) of the constitution of India by a registered trust comprising members of the muslim minority community. It was further mentioned that the Hon’ble Supreme Court has held under Article 30(1) of the Constitution of India that the right to establish and administer minority institution comprised the right to constitute a Governing Body for such institution.
7. The Vice-Chancellor of the University, however, constituted five member committee of the college by impugned notification dated 23.02.2016. The aforesaid adhoc committee, as it appears from the letter dated 27.11.2015, has been constituted while exercising power under the proviso of the statutes regarding Governing Body of the Bihar State University Act, 1976.
8. The petitioner is seeking a declar
