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Gujarat High Court
Judgename :P.N.BHAGWATI, M.R.MODY, J.M.SHELAT
KRISHNA RANGNATH MUDHOLKAR - Appellant
Versus
GUJARAT UNIVERSITY - Respondent
S.C.A.624 of 1960
Decided On : 01/24/1962
Gujarat University Act 1949 - Articles 29 and 30 - section 33 – Education Law - Qualify himself for practicing - Petitioner is father of Shirking at present studying College which is affiliated to Gujarat University Act 1949 Shirking took his secondary education in D. G. T. High School Bombay and M. S. N. High School and passed his S.S.C. examination - Medium of instruction as well as examination throughout period of his secondary education was Marathi - He took S. S. C. Examination in Marathi and his mother-tongue is also Marathi - His aim was and continues to be as stated in petition to qualify himself for practicing as an advocate in any of High Courts in India and with that object in view he decided to take higher education - He joined First Year Arts Class and passed Arts Examination – Held, Only medium of instruction and examination to exclusion of other languages and does not extend to forbid use of English or any other language as a medium of instruction and examination and Statutes are therefore null and void - New proviso enacted by constitutes an encroachment on field of and is therefore beyond legislative competence State and consequently null and void and purported to have been made are also therefore null and Alternatively even if on a true construction or any other provisions Act empower the University to prescribe a particular language or languages as media of instruction and examination for affiliated colleges and prohibit use of English as a medium of instruction and examination in affiliated colleges such provisions including purported to have been made as also Circulars issued – Order accourdingly
Key Points: - The Gujarat University Act 1949 gives the University powers related to teaching, affiliation, and examinations, but does not expressly empower it to prescribe the medium of instruction for affiliated colleges (!) . - Articles 29(1) and 30(1) protect the rights of minorities to establish and administer educational institutions of their choice, including the right to select the medium of instruction (!) . - The State Legislature cannot prohibit or restrict the use of a particular language as the medium of instruction in minority institutions, as such laws would be inconsistent with fundamental rights (!) . - Any legislation prescribing a specific medium of instruction for affiliated colleges is beyond the legislative competence of the State and is void (!) . - The provisions attempting to enforce Gujarati or Hindi as the medium of instruction, or to prohibit English, are ultra vires the University's powers and violate the Constitution (!) . - The right of a parent to direct the education of their child includes the liberty to choose the medium of instruction, and this right cannot be overridden without clear constitutional authority (!) . - The doctrine of pith and substance does not apply where there is no overlap between entries in the legislative lists, and entry 66 of List I covers coordination and determination of standards in higher education (!) . - Parliamentary power under entry 66 of List I includes the ability to legislate on the medium of instruction to coordinate and maintain standards, but this does not empower States to encroach on that field (!) . - The impugned statutes and circulars effectively prohibit minorities from using their chosen medium of instruction and are therefore void under Articles 29(1) and 30(1) (!) .
( 1 ) THIS petition raises questions of considerable importance regarding the construction of certain provisions of the Gujarat University Act 1949 the impact of Articles 29 and 30 of the Constitution on those provisions and the competence of the State Legislature to enact them. The facts giving rise to this petition are few and for the most part undisputed and may be briefly stated.
( 2 ) THE petitioner is the father of Shrikant at present studying in St. Xaviers College which is affiliated to the University of Gujarat under the Gujarat University Act 1949 Shrikant took his secondary education in D. G. T. High School Bombay and M. S. N. High School Ahmedabad and passed his S. S. C. examination in June 1960. The medium of instruction as well as examination throughout the period of his secondary education was Marathi. He took the S. S. C. Examination in Marathi and his mother-tongue is also Marathi. His aim was and continues to be as stated in the petition to qualify himself for practicing as an advocate in any of the High Courts in India and with that object in view he decided to take higher education in St. Xaviers College Ahmedabad. He joined St. Xaviers College Ahmedabad in the First Year Arts Class in June 1960 and passed the First Year Arts Examination in March 1961. He was instructed in the First Year Arts Class in the English medium and he also answered all papers at the First Year Arts Examination in English language. It was when he tried to get admission in the Inter Arts Class conducted by St. Xaviers College in the English medium of instruction that difficulty arose and which led to the filing of this petition.
( 3 ) ST. Xaviers College receives financial aid out of State funds and is affiliated to the University of Gujarat under the provisions of section 33 of the Gujarat University Act 1949 It is not an institution established managed or maintained by the University but is a private institution established and administered by Xavier Kelavani Mandal Private Limited a Private Limited Company registered at Rajkot under the provisions of the Indian Companies Act VII of 1913. It has its own educational aims and is an institution imparting higher education in humanities and sciences. It inter alia provides for teaching and training students in the approved courses of study prescribed for the Inter Arts Examination held by the University and for that purpose runs two classes one in which the medium of instruction is English and the other in which the medium of instruction is Gujarati. Students whose mother-tongue is not Gujarati as also students whose mother-tongue is Gujarati have been admitted to the class in which the medium of instruction is English and all subjects are being taught to students in this class in English language. This class with English as the medium of instruction is being conducted by the college under the permission granted by the second opponent by his circular dated 26th June 1961 addressed to the Principals of all affiliated Colleges
( 4 ) SHRIKANT having passed his First Year Arts Examination applied to St. Xaviers College for admission to the Inter Arts Class and desired that he should be admitted to that class in which the medium of instruction was English. The third opponent who is the Principal of St. Zaviers College informed Shrikant and the petitioner that by reason of the provisions of the Gujarat University Act 1949 and Statutes 207 208 and 209 made by the Senate of the University under the provisions of that Act it was not possible for him to permit Shrikant to attend the Inter Arts Class with English as the medium of instruction and that it was incumbent upon Shrikant to attend the Inter Arts Class with Gujarati as the medium of instruction. The third opponent however informed Shrikant and the petitioner that if the Gujarat University gave permission to Shrikant to attend the Inter Arts Class in which English was the medium of instruction he would have no objection to a
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