Md. Nisar Ahmad Kaifi v. State Of Bihar — 1988 DIGILAW 281 (PAT)

Judgment N.P.SINGH, J. 1. This writ application has been filed on behalf of the petitioners for quashing a communication dt. 13-11-1985 issued by the State Government to the Vice-Chancellor, Bhagalpur University (hereinafter referred to as the University) saying that decision has been taken to convert the affiliated Colleges mentioned in the said communication into constituent Colleges and certain directions have been given to the Vice-Chancellor of the said University including that there should not be any financial transactions except payment of salary. From that communication it appears that Millat College, Parsa is one of such Colleges (hereinafter referred to as the College) which, according to the State Government, was going to be converted into a constituent College. Pursuant to that direction, the Finance Officer of the University issued a letter to the Manager, State Bank of India, Bhagalpur, saying that as Millat College, Parsa is going to be trade a constituent College of the University, the Bank operation at present being made by the Principal and Bursar be stopped until further orders. The validity of this communication is also under challenge. According to the petitioners, the impugned directions by the State Government and the University amount to interference with the management of the College which is a minority institution within the meaning of Art.30 of the Constitution. 2. Petitioner No.1 is the President of Anjuman-E-Islahul Muslameen, Santhal Pargana (hereinafter referred to as the Anjuman) and petitioner 2 is the Secretary of the Anjuman whereas petitioner 3 is a Member of the Muslim Community. It is the case of the petitioners that Anjuman is a society registered under the Societies Registration Act founded by the Muslim Minority Community. According to them, the Muslim Community of Police Station Mahgama, Godda, District Santhal Pargana, decided in a general meeting to establish educational institutions in consonance with the provisions of Arts.29 and 30 of the Constitution. Pursuant to that decision, a High English School was established in Parsa. That School was recognised as a minority institution in the year 1965. It is further the case of the petitioners that on 12-1-1970 it was decided to establish a minority College named as "Millat College, Parsa". On 12-1-1970, 15 acres of lands were donated to the College by the Muslims of the locality. It was Anjuman which resolved on 16-10-1971 to deposit with the University a sum of Rs. It is further the case of the petitioners that on 12-1-1970 it was decided to establish a minority College named as "Millat College, Parsa". On 12-1-1970, 15 acres of lands were donated to the College by the Muslims of the locality. It was Anjuman which resolved on 16-10-1971 to deposit with the University a sum of Rs. 50,000.00 as reserve fund for the purpose of recognition of the College. The Anjuman made available another sum of Rs. 31,000.00 on 23-10-1971 to the Secretary of the governing body. It is alleged that formal recognition of the College as a minority institution was not accorded although for that purpose a resolution was passed by the Anjuman on 10-9-1977. 3. According to the petitioners, as the institution in question is a minority institution having protection of Art.30 of the Constitution, the State Government or the University has no authority to interfere with the management thereof or to declare it a constituent College of the University. 4. A counter affidavit has been filed on behalf of the University saying that the College in question had been started in the year 1968 from the donations of members of all castes and communities of the locality. It has been alleged that the sponsoring committee of the said College never applied for affiliation saying that the institution was a minority institution. The deposit of Rs. 50,000.00 with the University for the purpose of affiliation was not made by the Anjuman but by the sponsors of the College. It has been pointed out, in the counter affidavit, that at no stage the persons in charge of the management of the College asserted that it was a minority institution or had been established or managed by the Anjuman as claimed in the writ application. It has been stated that in fact Anjuman had no connection whatsoever with the establishment and management of the College in question. It is said that affiliation and grants to the College had been given not treating the College as a minority institution. It has been stated that since 1977 from time to time the University had been constituting Governing Body and Ad hoc Committee for the management of the College in question, in accordance with Ss.60(1) and 60(4) of the Bihar State Universities Act 1976 (hereinafter referred to as the Act). This was not possible if the College was a minority institution. It has been stated that since 1977 from time to time the University had been constituting Governing Body and Ad hoc Committee for the management of the College in question, in accordance with Ss.60(1) and 60(4) of the Bihar State Universities Act 1976 (hereinafter referred to as the Act). This was not possible if the College was a minority institution. The petitioners or anyone on behalf of the Anjuman never protested before the University in respect of such constitution of Ad hoc Committee and Governing Body. It has been pointed out that petitioners 1 and 3, who have filed this writ application on behalf of the Anjuman, were themselves members of the Ad hoc Committee and Governing Body of the College constituted treating the College as a general institution and not a minority institution. Petitioners 1 and 2 were representing the seat in the Governing Body for educationists and donors. According to the University, this writ application has been filed with ulterior motive to delay the conversion of the College into a constituent College which is not only the general demand but even the demand of the teachers of the said College, many of whom belong to minority community. 5. An application has been filed on behalf of 19 persons (Respondents 4A to 22) claiming to be the teachers and staff of the College for being added as respondents. Out of 19, 17 appear to belong to Muslim Community. They have challenged the statement made on behalf of the petitioners saying that the College was never established from the income from any organisation of minority community. They have also stated that money and 15 acres of land of the College had been donated and gifted by the villagers of the locality. It has also been pointed out that in none of the communications since the year 1971 for the purpose of affiliation from time to time it was ever asserted or alleged that the institution was a minority institution. It has been stated that the claim of donation made by the Anjuman is not borne by the records of the College. They have asserted that the teachers and staff of the College are interested in the conversion of the College into a constituent College which will give them status of the University teachers with added benefits of University employment. 6. They have asserted that the teachers and staff of the College are interested in the conversion of the College into a constituent College which will give them status of the University teachers with added benefits of University employment. 6. In view of the binding opinion expressed by the Supreme Court on the scope of Arts.29 and 30 of the Constitution in the cases of In re Kerala Education Bill, 1957, AIR 1958 SC 956 , Rev. Father W. Proost V/s. State of Bihar, AIR 1969 SC 465 , D.A.V. College Bhatinda V/s. State of Punjab, AIR 1971 SC 1731 , D.A.V. College, Jullundur V/s. State of Punjab, AIR 1971 SC 1737 and Ahmedabad St. Xaviers College Society V/s. State of Gujarat, AIR 1974 SC 1389 followed by other judgments, there cannot be any controversy that minorities in India have right to establish and administer educational institutions of their choice and the State Government or the University cannot interfere with the day to day management of such institutions by the members of the minority community. In those very judgments, it has been pointed out that though Art.30 itself does not lay down any limitations upon the right of a minority to administer its educational institution but this right is not absolute; this is subject to reasonable regulations for the benefit of the institutions. The State Government and the Universities can issue direction from time to time for the maintenance of the standard and excellence of such institution which is necessary in the national interest. But before an institution is held to be a minority institution within the meaning of Art.30, the persons concerned must establish two facts : (1) that the sponsors belong to minority community on the basis of religion or language and (2) that the institution was established by them. 7. The learned Advocate General appearing for the University urged that from the materials produced in this case, it shall appear that the Anjuman or any person as office bearer of the said Anjuman was never associated with the establishment or administration of the College in question; on the other hand, throughout the institution has been treated in general category and from time to time governing body or an ad hoc committee has been constituted by the University in accordance with the provisions of the Act and Statute framed thereunder. It was pointed out that as early as in the year 1977 a regular governing body in accordance with sub-sec.(1) of S.60 was constituted in which even petitioners 1 and 3 were members representing the seats meant for educationists and donors. This was not possible if the institution was a minority institution. Later when the governing body was dissolved an ad hoc committee was constituted in accordance with S.60(4) of the Act which was not possible if the institution was a minority institution. 8. S.60 of the Act is as follows : "60. The Governing body. - (1) There shall be a governing body for the management and administration of each affiliated College other than a College owned and maintained by the State Government or a College established and administered by a minority Community on the grounds of religion or language or an affiliated technical or medical college. It shall consist of following members - (i) Principal of the College-Ex-Officio, (ii) a member elected by and from amongst the teachers of the College, (iii) a representative of the University nominated by the Syndicate, (iv) an officer of the State Government posted in the district, being not below the rank of a sub-divisional magistrate, nominated by the Syndicate. (v) a member elected by such donors from amongst themselves as have donated at least twenty five-thousand rupees to the College, (vi) one member to be nominated by the Syndicate, who is a member of the Parliament on the State Legislature and mainly resides in the district of the area in which the College is situated; and (vii) one member co-opted by the Governing body from amongst such educationists or persons residing in the district where the College is situated as are reputed for their academic interest. (2) The term of office of the members of the Governing body, their powers and functions shall be such as are prescribed by the Statutes. (3) Any act or proceedings of the Governing body of affiliated Colleges shall not be invalid merely because of any vacancy or vacancies in its membership. (4) The Syndicate shall constitute an ad hoc committee for the management of the College so long as a Governing body in not constituted in accordance with the provisions contained in sub-sec.(1). (3) Any act or proceedings of the Governing body of affiliated Colleges shall not be invalid merely because of any vacancy or vacancies in its membership. (4) The Syndicate shall constitute an ad hoc committee for the management of the College so long as a Governing body in not constituted in accordance with the provisions contained in sub-sec.(1). (5) The Governing body/Managing Committee for the management and administration of a College owned and maintained by the State Government, or established and administered by a minority community, on the ground of religion or language and declared, from time to time, as such by the State Government according to yard-sticks laid down by it, or of an affiliated technical or medical college, shall be constituted in accordance with the provisions prescribed in the Statutes." On a plain reading the governing body in respect of affiliated Colleges other than the Colleges owned and maintained by the State Government or a College established and administered by minority community on the grounds of religion or language or an affiliated technical and medical college has to be in accordance with sub-sec.(1) of S.60. There is no dispute, in the present case, that governing body in accordance with sub-sec.(1) of S.60 was constituted in the year 1977 which managed the affairs of the College. In that governing body, petitioners 1 and 3 were members. Thereafter an ad hoc committee was constituted in accordance with sub-sec.(4) of S.60. The learned Advocate General also made reference to the Inspectors report which had been submitted in connection with affiliation of the College and pointed out that there was no claim on behalf of the Anjuman that as the institution had been established by the minority and was being managed by minority community, it should be recognised as a minority institution. The petitioners themselves have annexed a copy of one such report dt. 17-8-1978. From that report it is apparent that there is no mention of the Anjuman being associated with the establishment or management of the College in question. There is only one line in that report saying that "the college is situated in an interior and backward area of Santhal Pargana, which is managed by a minority class (Muslims)". The other report is dt. 4-6-1977. There is only one line in that report saying that "the college is situated in an interior and backward area of Santhal Pargana, which is managed by a minority class (Muslims)". The other report is dt. 4-6-1977. In that report also, there is no mention that the College in question had been established by any minority community or it had any character of a minority institution much less any mention about the petitioner Anjuman. On behalf of the respondents it was also pointed out that the deposit of Rs. 50,000.00 for the affiliation was made on behalf of the College. In this connection our attention was drawn to the receipt and was pointed out that there is no mention of Anjuman or minority community in that receipt. 9. On behalf of the petitioners it was pointed out that Anjuman had donated Rs. 31,000.00 and that the teachers and staff of the College are mostly of the Muslim Community. In my view, merely on this circumstance, an institution cannot be declared to be a minority institution. In the instant case, according to me, it has not been established that the institution in question was established by persons claiming to be members of the minority community. So far the management of the institution is concerned, it has never been managed and administered as a minority institution. I have already pointed out as to how since 1977 the governing bodies and ad hoc committees for administration and management of the Colleges have been constituted in accordance with S.60(1) of the Act. The petitioners have claimed that they have been writing to one authority or the other for declaration of the minority nature of the institution. But I fail to understand that if there was an interference with the right of the petitioners to manage any such institution, why some concrete steps were not taken, including by invoking the writ jurisdiction of this Court. On the other hand, it appears that petitioners Nos. 1 and 3 willingly became members of the governing body in accordance with S.60(1) and Statutes framed by the University for constituting Governing body of a College which is not a minority institution or an institution owned by the State Government. 10. As already mentioned above, the intervenors who are members of Muslim community are opposing the claim of the petitioners. It has been stated on behalf of intervenor-respondents Nos. 10. As already mentioned above, the intervenors who are members of Muslim community are opposing the claim of the petitioners. It has been stated on behalf of intervenor-respondents Nos. 4A to 22, in the affidavit in reply on behalf of the petitioners, that donations had been received from various persons professing different religions by the Secretary of the College and the highest amount had been paid by the employees of the College, i.e., Rs. 80,255/-. Details of the receipt of the aforesaid amount have been mentioned in the affidavit. It has also been pointed out that throughout the teachers of the said College have been appointed on the recommendations of the Service Commission in accordance with the act and the Statutes of the University which was not possible if the institution was a minority institution. An affidavit has also been sworn by one Mohammad Abdul Karim, who is respondent No. 4A. He has stated that the said respondent is a member of the executive committee of the Anjuman and being a member of the executive committee of the Anjuman on whose behalf the right has been asserted by the petitioners the said respondent No. 4A has stated in respect of Anjuman that it had neither paid any sum to the College, nor there is any account in the college of such payment being received from Anjuman. The counsel for the intervenors-respondents also pointed out from a copy of the list of persons who donated the land for the College that none of the petitioners or the Anjuman had donated any land. Several persons including some members of the Hindu community have donated small pieces of land measuring about 15 acres for the College in question. 11. In view of the claims made on behalf of the petitioners and the counter-claim made on behalf of the respondents including the intervenors-respondents, who are, admittedly, connected with the College and majority of whom belong to the minority community, it is difficult for this court, while exercising the writ jurisdiction, to record a finding in favour of the petitioners that the College in question had been established by the members of the minority community and it was being managed by them as a minority institution. In the instant case, no material has been produced on behalf of the petitioners to show that the University or the State government have played any fraud on the minority community and have been interfering with the right of such minority community under Arts.29 and 30 of the Constitution, indirectly or through a subterfuge. 12. On behalf of the petitioners it was submitted that even if in past the petitioners have not asserted their fundamental right under Arts.29 and 30 of the Constitution to administer the college in question it shall not amount to waiver of that right because a fundamental right cannot be waived. In this connection reference was made to the wellknown judgments of the Supreme Court in the cases of Basheshar Nath V/s. Commr. of Income-tax, Delhi and Rajasthan, AIR 1959 SC 149 and Olga Tellis V/s. Bombay Municipal Corporation, AIR 1986 SC 180 , where it has been pointed out that there cannot be waiver of fundamental rights. If the petitioners had established that they had established the institution in question and they were administering the same as a minority institution their claim could not have been rejected on principle of waiver. But, in the instant case, on the materials produced, as already said above, the petitioners have failed to prove that either they have established the College in question as a minority institution or they had any connection with the management of the said College. 13. Coming to the impugned communications dt. 13-11-1985 and dt. 28-11-1985 issued by the State Government and the Finance Officer of the University, I must say that they are not very happily worded. Unless the agreement had been entered into between the Governing Body of the College and the University, in terms of S.4(14) aforesaid, there was no occasion to issue any such direction in respect of operation of the Bank accounts by the Principal and Bursar of the College passed prior to agreement without lawful authority. Unless the agreement had been entered into between the Governing Body of the College and the University, in terms of S.4(14) aforesaid, there was no occasion to issue any such direction in respect of operation of the Bank accounts by the Principal and Bursar of the College passed prior to agreement without lawful authority. Sec.2(i) defines "Constituent College" as follows : "2(i) "Constituent College" means a teaching institution maintained or controlled by the University;" Section 4(14) which is the provision regarding entering into agreement is as follows : "4(14) to enter into agreement with other bodies and persons for promoting the purposes of this Act and to assume the management of any institution under them and to take over its assets and liabilities : Provided that before entering into such an agreement the university shall obtain the sanction of the State Government, or shall do so upon receiving such a proposal from the State Government : Provided further that if at any time any irregularity is found in determination and payment of any pay, special pay or allowances, or in any appointment in an institution taken over by the University in its management under such an agreement, then, notwithstanding anything to the contrary contained in this Act, the University shall have the powers to take decisions after reviewing it and such a decision shall be final and binding." 14. Faced with this situation, on behalf of the State and the University, a stand was taken that the said communications which are under challenge should not be read as binding direction but only advisory in nature. It was submitted that as the agreement was going to be executed between the management of the College and the University, the State Government and the University thought it proper that before the institution is taken over at the request of Governing Body managing the affairs of the College, its funds should not be misappropriated or misused as the assets and liabilities are to be taken over by the University after it becomes a constituent college. 15. 15. Accordingly, this writ application is dismissed subject to the direction that the State Government and the University shall exercise their power vis a vis the College treating the said College as an affiliated College till the agreement is executed between the College and the University in terms of S.4(14) of the Act after which it becomes a Constituent College. In the circumstances of the case, there shall be no order as to costs. 16. D.K. SEN, C.J. :- I entirely agree with the above judgment of my learned Brother and the order proposed to be passed. I would, however, like to add a few words. 17 Only two points were urged before us on behalf of the writ petitioners. The first point was that the State of Bihar was not entitled to convert Millat College, Parsa, into a Constituent College of the Bhagalpur University under the provisions of the Bihar State Universities Act, 1976 , and, therefore, the decision of the Government of Bihar, as contained in its teleprinter message dt. 13th Nov., 1985, regarding the decision of the Government of Bihar to convert the said College into a Constituent College and the consequential communication of the Finance Officer of the Bhagalpur University to the Manager, State Bank of India, directing the later to stop operation of the bank account of the College by the Principal and Burser of the said College were illegal and ought to be quashed. 18. Learned Advocate-General for the State of Bihar conceded that under S.4(14) of the Bihar State Universities Act, 1976 , set out in the judgment of my learned Brother, it was the University concerned which was empowered to enter into an agreement with the persons concerned to assume management of any institution under them and to take over its assets and liabilities, subject to a proposal received from and the sanction accorded by the State Government. Learned Advocate-General invited us to construe the said teleprinter message to be a proposal within the meaning of the said S.4(14) of the said Act, 1976, and nothing more. 19. In that view the writ petitioners need not have any further grievance on the question of conversion of the said Millat College into a Constituent College. 20. Learned Advocate-General invited us to construe the said teleprinter message to be a proposal within the meaning of the said S.4(14) of the said Act, 1976, and nothing more. 19. In that view the writ petitioners need not have any further grievance on the question of conversion of the said Millat College into a Constituent College. 20. The other point urged on behalf of the writ petitioners is that in any event the said Millat College was a minority institution enjoying the protection of Art.30 of the Constitution and as such neither the State Government nor the University had any authority to interfere with the said institution and the management thereof. 21. In the judgment delivered by my learned Brother this contention made on behalf of the writ petitioners has been dealt with in detail and I need not reiterate the same. 22. I would like to add, however, that it appears from the records that the said College was set up sometime in 1968 and functioned under successive Boards of Management and Governing Bodies till an ad hoc committee was constituted by the Bhagalpur University. 23. The Anjuman Islahul Muslimeen, Santal Parganas, (petitioner 2) claims to have set up this College and had been running the same as a minority institution since its inception. In the Rules and Regulations of the said Anjuman there is no mention of this College but it is provided that the Anjuman would be entitled to elect every third year members of the committee to form governing body of any institution or college established by it and that the Executive Committee of the Anjuman would have a right to form the governing body of such institution or college and frame their constitution (vide R.21(c) and R.22 - Annexure-15 of the reply to the counter-affidavit on behalf of the writ petitioners). 24. In spite of the aforesaid the Anjuman has not been able to produce before us any record to show that it had framed any constitution for the said College or that it had elected any governing body or the board of management for the said College at any time. 25. On the other hand, it appears from the inspection report of the Deputy Registrar I of the University of Bhagalpur on an inspection made on the 4th Aug., 1977, which is Annexure-A-2 to the counter-affidavit filed on behalf of the respondents Nos. 25. On the other hand, it appears from the inspection report of the Deputy Registrar I of the University of Bhagalpur on an inspection made on the 4th Aug., 1977, which is Annexure-A-2 to the counter-affidavit filed on behalf of the respondents Nos. 2 and 3, that the said College was being managed by the managing committee consisting of local people. 26. Admittedly the said College owns land and building and runs a bank account with a credit balance. No record has been produced before us by the said Anjuman to show how the said College came to acquire such properties. It is the admitted case of the parties that the land and money were donated for the purpose of setting up and running the said College but it is not established that such donation of land or money was made by the Anjuman. It has also not been established that such properties were donated to the College by the donors exclusively of the minority community with a condition that the same should be utilised for setting up of a college as a minority institution. On the other hand, the teachers, have contributed substantially for the running of the said College up till now and the members of the existing ad hoc committee contend that they have collected substantial subscription for the said College, which were made over to the University as a reserve not on behalf of the Anjuman nor on behalf of any group of minority but in the name of the Secretary of the College. No donor belonging to the minority community concerned has come forward in support of the writ petitioners and contended that gifts of land or money were made by him with the specific object of setting up of a college to be run as a minority institution. 27. From the aforesaid materials on the record in respect of the management and the properties of the said College it is not possible for this Court to come to a conclusion, one way or the other, that the said College was set up and continued to be run as a minority institution.