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IN THE HIGH COURT OF JUDICATURE AT PATNA
I.A. ANSARI and ANJANA MISHRA, JJ.
St. Xaviers College of Education, Digha Ghat, Patna - Petitioners
Versus
The State of Bihar through the Principal Secretary, Human Resources Development Department and Ors. - Respondents
Civil Writ Jurisdiction Case No. 3847 of 2016
Decided On : 27-10-2016
The fundamental right of a minority educational institution under Article 30(1) of the Constitution has two fold protection, firstly, right to establish an educational institution of their choice and, secondly, right to administer the educational institution so established by the minority, linguistic or religious.
Fact of the Case:
The petitioner, a minority educational institution, challenged the validity of the statutes of the Aryabhatt Knowledge University, which came to be framed by the appropriate authority, under the power conferred by Section 27(1) of Aryabhatt Knowledge University Act, 2008. The statute of the Aryabhatt Knowledge University, i.e., ‘Statutes for constitution of Governing Body for Colleges and institutions admitted to the privileges of the University other than colleges owned and maintained by the State Government or constituent colleges’ (hereinafter referred to as ‘the statutes’). The Registrar of the Aryabhatt Knowledge University (hereinafter referred to as ‘the University’), by letter, dated 20.06.2014, directed the petitioner Institution to constitute the governing body of the college in accordance with the provisions of sub-rule (iv) under paragraph 3.1.1 of the statute of the University.
Finding of the Court:
The court held that the impugned provisions of the statutes of the university, which sought to impose a structure of a governing body on a minority educational institution, were violative of the fundamental right of the minority to administer their educational institution, guaranteed under Article 30(1) of the Constitution. The court further held that the right to constitute a governing body and to choose members of such body, for the petitioner minority institution so as to protect the control over the affairs of such institution is absolute and no limitations can be placed upon this limited right to choose the members of the governing body for the administration of minority institution.
Issues: 1. What is the nature of the right of a minority educational institution to constitute a governing body/a management council, to govern day-to-day matters of the educational institution and to take various decisions with regard to governance of such educational institution? 2. Whether the mandatory imposition upon the management of the minority college of the petitioner, to obtain affiliation from the University, to constitute the governing body as provided under the statutes (rules) framed under Section 37(11) of the Act, amounted to violation of fundamental right to constitute a governing body for the minority college under Article 30(1) of the Constitution?
Ratio Decidendi: The court held that the right to constitute a governing body and to choose members of such body, for the petitioner minority institution so as to protect the control over the affairs of such institution is absolute and no limitations can be placed upon this limited right to choose the members of the governing body for the administration of minority institution. The court further held that the ‘choice’ with a minority, under Article 30(1) of the Constitution, includes the right to choose a governing body or managing council responsible to ‘administer’ such institution within the meaning of Article 30(1) of the Constitution.
Final Decision: The court allowed the writ application and held that sub-Clauses (iv) and (v) of Clause 3.1 and Clause 3.3 as well as Clause 7.1 sub-Clause (ii) of the statue of the AKU University Act, 2008 being violative of Articles 30(1) of the constitution and are thus, held ultra vires and thus, are null and void as being opposed to Article 13(2) as well as Article 30 of the Constitution of India.
“The history shows that there can be no stable equilibrium in any country so long as an attempt is made to crush a minority or to force it to conform to the ways of the majority. The largest democracy of the world is also said to be the house of the most diverse societies in the world. It has people from all the major religions. Although the Hindus constitutes an overwhelming majority, but there is a considerable number of Muslims, Christians, Parsees, Buddhist and Jains religions too. The diversity in India is noticed on various fronts other than religion and culture such as language. Diversity is coupled with linguistic diversity. In addition to that there are also a number of Scheduled tribes and certain unidentified communities which are internally heterogeneous. All these make India a country which has not only religious but also linguistic and cultural diversity.”
Jawaharlal Nehru
2. The present application, under Article 226 of the Constitution (hereinafter referred to as ‘the Constitution’) is filed by St. Xavier College of Education, Digha Ghat, Patna, Bihar, which is a Minority Educational Institution, challenging the validity of the Statutes of the Aryabhatt Knowledge University, i.e., “Statute regarding Governing Body”, which came to be framed by the appropriate authority, under the power conferred by Section 27(1) of Aryabhatt Knowledge University Act, 2008 (hereinafter referred to as the “the Act’), alleging violation of their fundamental right under Article 30 of the Constitution.
3. The statute of the Aryabhatt Knowledge University, i.e., ‘Statutes for constitution of Governing Body for Colleges and institutions admitted to the privileges of the University other than colleges owned and maintained by the State Government or constituent colleges’ (hereinafter referred to as ‘the statutes’). The Registrar of the Aryabhatt Knowledge University (hereinafter referred to as ‘the University’), the respondent No. 4 herein, by letter, dated 20.06.2014, directed the petitioner Institution to constitute the governing body of the college in accordance with the provisions of sub-rule (iv) under paragraph 3.1.1 of the statute of the University.
4. By its letter, dated 03.07.2014, the petitioner Institution replied to the direction of the Registrar of the University and submitted that the right of the petitioner, i.e., the minority educational institution, to constitute governing body in itself would be infringed, if directions contained in the letter, dated 20.06.2014, were to be followed. Therefore, the petitioner stated that directions of the Registrar of the University, to constitute the governing body for the petitioner institution as per the Rules, is violative of Article 30 of the Constitution of India and, therefore, violates the fundamental right of the petitioner. The petitioner prays to quash the statute so far as they apply to the minority educational institution for being violative of Article 30 of the Constitution of India.
5. The history of the institution runs as follows:-
(i) St. Xavier College of Education, i.e., the petitioner Institution was established on 24.03.1994 and the petitioner was granted recognition of teaching B. Ed course by the State Government vide its letter No. 119 dated 24.03.1994.
(ii) The National Council of Teachers’ Education (hereinafter referred to as ‘the NCTE’) also granted recognition for imparting B.Ed. level teacher training course vide its order dated 11.02.1997.
(iii) The National Commission for Minority Education Institutions, vide its order, dated 28.11.2007, declared the St. Xavier College of Education, a minority institution covered by Article 30 of the constitution of India.
(iv) The NCTE by its order EERRCC/7-92.6(1)/11/2009/16280(1) further granted the petitioner institution recognition for imparting M. Ed course form the year 2000-1010.
(v) The National Assessment and Accreditation Council granted a certificate of accreditation to the petitioner as a Grade ‘A’
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