Judgment S. B. Sanyal, Aftab Alam, JJ. 1. This judgment in these two cases had been prepared earlier. Its pronouncement, however, was withheld as the Court was informed that similar questions were under consideration before a Full Bench of this Court. The Batch of writ petitions before the Full Bench involved questions of recognition/affiliation of teachers Training Schools/colleges, and Physical Teachers Training colleges, claiming to be established by minorities. The relevant statutory provisions were those contained in the Bihar Non-Government Physical training Colleges and Non-Government Teachers Training Colleges and non-Government Primary Teachers Education College (Control and regulation) Aet. The Full Bench judgment (in C. W. J. C.1/88 and analogous cases) has been delivered on April 1, 1991 and I have had the advantage of going through this judgment. Having done so 1 find that the provisions of Bihar Medical Institutions (Regulation and Control) Act the subject-matter of this judgment are not identical to those of the teachers Training Colleges Act. I further find that this judgment is not contrary to the general principles that are inferable from that judgment. For these reasons I proceed to pronounce this judgment without any change and as it was prepared earlier. 2. These two applications have been heard one after the other and are being disposed of by orders in the same sequence. C. W, J. C. No.7985 of 1990 3. The two petitioners in this application under Articles 226 and 227 of the Constitution are (i) a medical college under the name of the katihar Medical College said to have been founded as a minority institution and (ii) sponsering body which is a society named Al-Karim educational Trust, registered under the Societies Registration Act. The petitioners seek directions from this Court to the State Government to accord recognition to the petitioner college and to L. N. Mithila University to affiliate the College and to allow its students to appear in thefirstm. B. B S. examination conducted by the University. 4. It is stated that the College in question was founded as a minority institution in October, 1987 and shortly thereafter applications were made to the University seeking affiliation and to the State Government for the grant of recognition to the College. B. B S. examination conducted by the University. 4. It is stated that the College in question was founded as a minority institution in October, 1987 and shortly thereafter applications were made to the University seeking affiliation and to the State Government for the grant of recognition to the College. The University constituted an inspection team which inspected the College on 15-3-1989 and submitted its report on 15-4-1989; A photo stat copy of the inspection report has been enclosed with the writ application marked as Annexure-5/a. The report recommended grant of temporary affiliation by the University for three sessions, i. e. , 1987-88, 1988-89 and 1989-90 and -the subsequent approval by the State Government on fulfilment of some conditions. The petitioners claim to have subsequently complied with those conditions. 5. It appears that this report was forwarded by the Registrar of the university to the Secretary. Health and Family Welfare Department, government of Bihar with a request to advise the University regarding the governments decision on the question of affiliating the College to the University. 6. The petitioners further drew our attention to the notes made in the relevant file by the then Health Minister and the them Chief Minister the notes dated 5-12-1989 indicate that the Health Minister on a perusal of the inspection report and the other relevant documents in the file directed that the College be granted recognition for the Sessions 1987-88, 1988-89 and 1989-90 and the University be informed, accordingly, for affiliation and conduct of examination. On 5-3-1990 the then Chief minister appears to have recorded his approval to the grant recognition to the College. 7. Following the directions of the then Chief Minister and the then health Minister, no Government orders, however, were issued or communicated to the petitioners and it is the grievance of the petitioners that the inaction of the Government is calculated to frustrate their right guaranteed under Article 30 of the Constitution and hence this writ application before this Court. 8. A counter-affidavit was filed on behalf of the State and the learned advocate-General appeared in opposition to this writ application. Although the minority character of the College was also disputed in the counter-affidavit, the learned Advocate-General advanced his submissions on the assumption that the College was a minority institution and I proceed on that basis. 8. A counter-affidavit was filed on behalf of the State and the learned advocate-General appeared in opposition to this writ application. Although the minority character of the College was also disputed in the counter-affidavit, the learned Advocate-General advanced his submissions on the assumption that the College was a minority institution and I proceed on that basis. The learned Advocate-General produced for the perusal of the Court two booklets containing the recommendations of medical Council of India on graduate medical education and the norms laid down by the Council regarding the minimum standard requirement for a medical college for 100 admission anually. Placing reliance upon the recommendations of Medical Council of India, the learned Advocate-General submitted that the college in question did not come up to the minimum standard and the report of the Universitys inspection committee did not pay any regard to the requirements envisaged in the Councils recommendations. He, accordingly, submitted that it was not possible for the State Government to grant recognition to the college on the basis of the inspection report, primarily relied upon by the petitioners. At this stage, it may be noted that in Paragraphs 11 and 12 of the counter-affidavit it is stated as follows : "11. . . . . L. N. Mithila University has sent inspection report and the state Government having examined it found that the institution does not qualify for recognition and it proposes to send a request to the Indian Medical Council to send its team for inspection and submit its report to the State Government as to whether the institution qualifies for recognition/affiliation. " "12. . . . That on the report of the expert Committee of the Medical council of India, the Government will reconsider the matter. In the present on the basis of the material available on the record produced by the petitioners, the Slate Government is satisfied that the institution does not qualify for recognition/ affiliation and is, therefore, rejected the claim of institution for recognition. " 9. Though it is stated in Paragraph 12 of the counter-affidavit as reproduced above that the State Government has "rejected" the claim of the institution for recognition, no such order has been brought on record much less communicated to the petitioners. " 9. Though it is stated in Paragraph 12 of the counter-affidavit as reproduced above that the State Government has "rejected" the claim of the institution for recognition, no such order has been brought on record much less communicated to the petitioners. From reading of the counter-affidavit as a whole and from the submissions advanced by the learned Advocate-General I am satisfied that the matter is still pending consideration before the State Government and the word "rejected" has been loosely used. What is actually meant is that on the materials available at the moment, the Government is not prepared to accord recognition to the College. It, however, proposes to further enquire into the matter and a final decision will be taken only after the enquiry is completed to the States satisfaction. 10. The provisions relating to the grant of affiliation to a college are contained in Sec.21 (2) (d) of the Bihar Universities Act, 1976. Sec.21 of ths Act is as follows : "21. Powers and duties of the Senate.- (I) Subject to the provisions of this Act and statutes, the Senate shall be the supreme governing body of the University, and shall exercise control over all the affairs and properties of the University, and shall exercise all such powers as are not otherwise specified by this act, (2) In particular and without prejudice to the generality of the foergoing powers, the Senate shall exercise the following powers and perform the following duties, namely : - (a) of making the statutes and amending or repealing the same : (b) of considering the statutes and the Regulations, and amending or repealing the same ; (c) of passing resolution after having considered the annual report, the annual account, the financial estimates and audit report on such accounts ; (d) of exercising the powers for the purpose of control in Colleges and Tols, and of superintendence which include affiliation and disaffiliation of Colleges : provided that affiliation or disaffiliation of Colleges of Tols shall not take effect, unless it is approved by the State Government ; provided further that no Medical College shall be affiliated except without the prior approval of the State Government. Before granting such an approval, the State Government shall consider the financial viability of the College, the nature and form of the proposed management of the College, the viability of the academic standard and all other condition which are likely to have adverse effect on the interests of students admitted to such a College ; (e) of instituting and conferring such degrees, titles, diplomas and other academic distinctions as may be prescribed by the statutes; and (f) of exercising. such other powers and of performing such other duties as are conferred or imposed upon it by this Act or the statutes ;" 11. According to the learned Advocate-General another set of statutory provisions that shall have a hearing on the question of grant of recognition to this college are those contained in the Bihar Medical institutions (Regulation and -Control) Act.1981. The question of applicability of this Act to the petitioner institution being the main question in the second application has been considered at length in the following judgment relating to the second application and in order to avoid repetition I am reframijg from going into that question here. Suffice is to say that, in my opinion, the provisions of the Bihar Medical institutions (Regulation and Control) Act shall have no application in the facts of this case and the only relevant provision regarding the grant of recognition/affiliation to the petitioner college is contained in Sec.21 (2) (d) of the Bihar Universities Act, 1976 as reproduced above. 12. The petitioners seek a direction to the State Government to grant recognition to the College on the basis of the report of the Inspection committee constituted by the University. This inspection was held under the provisions of the ordinance/statutes framed under Section 34/37 of the Act. Sec.21 (2) (d) of the Act, however, stipulates that the University may grant affiliation to the College subject to a prior approval by the State Government. The 3rd proviso requires the State government to consider matters relating to (i) financial viability, (ii)nature and form of the proposed management, (iii) the viability of the academic standard. and (iv) all other conditions which are likely to have adverse effect on the Interests of students admitted to said college, in order to grant the approval to the proposed affiliation. 13. In this case, admittedly the State Government is yet to discharge this statutory obligation. 14. and (iv) all other conditions which are likely to have adverse effect on the Interests of students admitted to said college, in order to grant the approval to the proposed affiliation. 13. In this case, admittedly the State Government is yet to discharge this statutory obligation. 14. It was submitted by the learned Advocate-General that in order to examine the aforementioned matters relating to the College, the State government purposes to get it inspected by two teams/committees. One to be appointed by the State to examine the financial viability of the college and another by the Medical Council (at the request of the State government) to examine the academic standard of the College vis-a-vis the m. C. I. norms. On the basis of the two reports, the State Government would take a final decision in the matter. 15. I, accordingly, direct that j (i) the State Government should obtain the two reports within three months : (ii) and should take a final decision in terms of the proviso to section 21 (2) (d) within one months from the date of submission of the reports. (iii) the State Government as also the inspecting teams should bear in mind that the institutions claim for recognition/affiliation is to be judged not only on the basis of its present resources and academic and other facilities presently provided by it but it must also be taken into account whether it is likely or not to achieve, within reasonable time, the minimum standards as pointed out by the Supreme Court in Civil Appeal No 4129 of 1989, disposed of on 21-9-1990 (copy of the judgment provided at the time of hearing of this case ). (iv) In case the Government decides in favour of the College, the respondent-University must grant affiliation to the Collegeand hold an examination (special, if necessary) for the students of the College within six weeks of the Governments decision. (v) In case, however, on the basts of the two reports the Government is not prima fade satisfied, it must give an opportunity of hearing to the petitioners before finally making up its mind. This is to obviate any grievance in future by the petitioners that the Governments decision was arrived it in contravention of the principles if natural justice. (v) In case, however, on the basts of the two reports the Government is not prima fade satisfied, it must give an opportunity of hearing to the petitioners before finally making up its mind. This is to obviate any grievance in future by the petitioners that the Governments decision was arrived it in contravention of the principles if natural justice. (vi) In case the request for approval is finally turned down, the government must assign reasons in a speaking order and convey the same to the petitioners. 16. With these observations and directions, the application is disposed of. C. W. J. C. No.3020 of 1990 17. This is an application under Articles 226 and 227 of the Constitution filed on behalf of an organisation, claiming to be engaged in social and political activities, and two private individuals. The application professed to have been preferred in public interest, seeks directions to the state Government to (i) arrest and prosecute respondent Nos.4 and 5 for having established a medical college without having obtained prior permission of the State Government and to (ii) lock up and close down the college in terms of the Bihar Medical Institutions (Regulation and control) Act, 1981 (the Act for the sake of brevity ). 18. The facts are simple and brief. It is stated that respondent No.4, a society registered under the Societies Registration Act named as al-Karim Educational Trust has opened a medical college under the name of katihar Medical College of which respondent No.5 is the principal. It is further stated that respondents No.4 and 5, having established the college without prior permission of the State Government, have contravened the provisions of the Act and thereby have invited the consequence in terms of the Act. It is complained that the State Government is not taking any action against the college and the two respondents and is thus guilty of deriliction of duty under the Act. Hence directions as aforesaid are sought from this Court. 19. It is important to bear in mind that it is nowhere asserted in the application that the college has uot been established in exercise of the fundamental right under Article 30 (i) of the Constitution and does not have available to it the protection under that Article. Hence directions as aforesaid are sought from this Court. 19. It is important to bear in mind that it is nowhere asserted in the application that the college has uot been established in exercise of the fundamental right under Article 30 (i) of the Constitution and does not have available to it the protection under that Article. From Annexure-2, an enclosure to the writ application it, however, appears that the sponsors firmly maintain that the college is a Muslim minority institution and has been established in exercise of rights guaranteed under Article 30 (i) of the Constitution. 20. Direction as aforesaid are, however, sought on the assumption that the bar to the establishment of a private medical college without the prior permission of the State Government and the consequence of violating the bar apply equally to a minority institution relying for its protection strengh on Article 30 (i) as they apply to a non-minority institution. It is on this assumption that this application is pressed. 21. It is also to be noted that though long and vehement arguments were advanced concerning the nature and scope of the right under Article 30 (1), no serious effort was made to test the provisions of the Act with reference to that Article. 22. Mr. GIRI, appearing for the petitioners, took the extreme position and submitted that a minority institution either in its administration or in establishment was no worse or no better than any other privately established institution. He contended that for the application of the Act it was wholly immaterial whether or not the college was a minority. , institution. His extreme position was as good as denial of Article 30 (i ). 23. The learned Advocate-General, appearing on behalf of the state, understandably confined his submissions to the applicability of the Act to minority institutions and refrained from entering into the facts of the case. On the question of applicability of the Act to minority institutions he did not go so far as Mr. Giri, nevertheless he too maintained that the provisions of the Act were applicable to minority institutions. Learned Advocate-General submitted that so long these did not interfere with or abridge the substance of the right, the State could enforce regulatory measures in certain well defined areas in the administration of a minority institution. Giri, nevertheless he too maintained that the provisions of the Act were applicable to minority institutions. Learned Advocate-General submitted that so long these did not interfere with or abridge the substance of the right, the State could enforce regulatory measures in certain well defined areas in the administration of a minority institution. Proceeding from this position he argued that these regulatory measures could be taken right back to the very threshold and the establishment of the institution itself could be validly made subject to them provided of course those measures did not impinge upon the substance of the right. The contention was rather hypothetical inasmuch as he did not care to take up for consideration the specific conditions the fulfilment whereof has been made by the Act a condition precedent for the establishment of a private college. 24. Mr. Mukhoty, learned counsel appearing for respondents 4 and 5, on the other hand, maintained that to establish an educational institution of its choice was a completely unqualified and unfettered right of every minority. Any attempt to subject it to any so-called regulatory measures would amount to curbing the right. According to him, question of application of any regulatory measures would arise only if and when a minority institution approached the State seeking aid, recognition or affiliation. 25. Before proceeding further it is necessary to get straight a common misapprehension on which, to a great extent, arguments of mr. Giri were, founded. It is, that the institution- in question being a medical college it was required in general public interest and in the interest of medical science and education that the exercise of the right under Article 30 (i) in establishing such a college must yeild to much more stringent regulations then may be required for the establishment of a non-technical institution in exercise of this right. 26. Mathew, J. , in St. Xaviers College case, AIR 1974 SC 1389 citing with approval the observation of Ramswamy, C. J. , in Dipertdra nath V/s. State of Bihar and others, said (in Paragraph 123) as follows : "ramswamy, C. J. said in Dipendra Nath V/s. State of Bihar and vthers, AIR 1962 p.101, (FB) that the crucial phrase in Article 30 (i) is of their choice, that the ambit of the freedom of choice conferred by the Article is therefore as wide as the choice of the particular community may take it. . . . . . . " 27. It is, therefore, wholly misconceived to contend that the nature of the educational institution should modulate the nature of the right under Article 30 (i ). 28. Further to support a regulation in general public interest or in the interest of the medical science and education alone and unconnected with the interest of the minority institution is equally misconceived as pointed out by the Hon ble Judge in Paragraph 177 of St. Xaviers Colleges case i "this is the reason why this Court has time and again said that the question whether a particular regulation is calculated to advance the general public interest is of no consequence if it is not conducive to interests of the minority community and those persons who resort to it. " 29. In order to appreciate the submissions advanced by the contending parties in further detail it will be useful to take note of the pronouncement of the Supreme Court on the subject. The scope and ambit of Article 30 (i) and the nature of the guranteed therein and the object and extent of the regulatory measures to which the right could be subjected has been considered by the Supreme Court a number of times and on several occasions by Constitutional Benches of the Court. In case of Kerala Education SHI, AIR 1958 SC 956 , dealing with Article 30 (i) the Supreme Court observed:. "the key to the understanding of the true meaning and. Implication of the Article under consideration are the words of their own choice. It is said that the dominant words is choice and the content of that Article is as wide as the choice of the particular minority community may make it. The ambit of the rights conferred by Article 30 (i) has, therefore, to be determined on a consideration of the matter from the points of view of the educational institutions themselves. " 30. Again in the case of Sidhrajbhai Sabhai and others V/s. State of gujrat and another, AIR 1963 SC 540 , Shah J. , speaking for the Constitution bench of the Supreme Court observed in Paragraph 15 of the judgment; "the right established by Article 30 (i) is a fundamental right declared in terms absolute. Unlike the fundamental freedoms guaranteed by Article 19 it is not subject to reasonable restrictions. Unlike the fundamental freedoms guaranteed by Article 19 it is not subject to reasonable restrictions. It is intended to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their own choice. The right is intended to be effective and is not to be whittled down by so-called regulative measures conceived in the interest not of the minority educational institution, but of the public of the nation as a whole. If every order which while maintaining the formal character of minority institution destroys the power of administration is held justifiable because it is in the public or national interest, though not in its interest as an educational institution the right guaranteed by Article 30 (i) will be but a "teasing illusion", a promise of unreality; Regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as a minority institution effective as an educational institution. Such regulation must satisfy a dual test - the test of reasonableness and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it. " 31. Dealing with the object and extent of the regulatory measures sen J. , speaking for the five Judges Bench of the Supreme Court in Jhe case of Lilly Kurlan V/s. Lewina, AIR 1979 SC 52 , observed in Paragraph 36 of the judgment : "protection of the minorities is an article of faith in the Constitution of India. The right to the administration on institutions of minoritys choice enshrined in Articie 30 (i) means management of the affairs of the institution. This right is, however, subject to the regulatory power of the State. The right to the administration on institutions of minoritys choice enshrined in Articie 30 (i) means management of the affairs of the institution. This right is, however, subject to the regulatory power of the State. Article 30 (i) is not a charter for maladministration ; regulation, so that the right to administer may be better exercised for the benefit of the institution is permissible ; but the moment one goes beyond that an imposes, what is in truth, not a mere regulation but an impairement of the right to administer, the article comes into play and the interference cannot be justified by pleading the interests of the general public ; the interests justifying interference can only be the interests of the minority concerned. " 32. Similarly in the case of All Saints High School V/s. The Government of Andhra Pradesh, AIR 980 SC 042, Chandrachud C. J. , on a consideration of the earlier decisions observed in Paragraph 3 of the Judgment : "these decisions show that while the right of the religious and linguistic minorities to establish and administer educational institutions of their choice cannot be interfered with, restrictions by way of regulations for the purpose of ensuring educational standards and maintaining the excellence thereof can be validly prescribed. For maintaining educational standards of an institution, it is necessary to ensure that it is competently staffed. Conditions of service which prescribed minimum qualifications for the staff, their pay scales, their entitlement to other benefits of service and the laying down of safeguards which must be observed before they are removed or dismissed from service or their services are terminated are all permissible measures of a regulatory character. As observed by das. C. J. in Re Kerala Education Bill, "right to administer cannot obviously include the right to maladminister", and in the words of Sab, J. , in Re Sidhrajabhai, "the right is subject to reasonable restrictions - in the inter st of efficiency of instruction, discipline, health, sanitation, morality public order and the like". Hidayatullah, C. J. , said in Very Rev. Mother provincial that "standards of education are not a part of management as such", that the "minority institutions cannot be permitted to fall below the standard of excellence expected of educational institutions" and that "the right of the State to regulate education, educational standards and the allied matters cannot be denied. Hidayatullah, C. J. , said in Very Rev. Mother provincial that "standards of education are not a part of management as such", that the "minority institutions cannot be permitted to fall below the standard of excellence expected of educational institutions" and that "the right of the State to regulate education, educational standards and the allied matters cannot be denied. " Justice Jaganmohan Reddy, in d. A. V. College reiterated while upholding Clause 18 of the guru Nanak University, Amritsar Act, 1969 that regulations governing recruitment and service conditions of teachers of minority institutions which are made in order to ensure their efficiency and excellence do not offend against their right to administer educational institutions of their choice". 33. In fact of the well established position as indicated by the aforequoted pronouncements of the Supreme Court it is not possible to accept Mr. Girls extreme contention that once a competent Legislature has framed certain regulatory measures in the form of the Act all institutions must fall in line or face the consequences irrespective of their minority character. Such a contention for all intent and purpose is a negation of Article 30 (i) and has to be repelled in the eloquent words of das C. J. , in re the Kerala Education Bill (Supra ). "so long as the constitution stands as it is and is not altered, it is, we conceive the duty of this Court to uphold the fundamental rights and thereby honour our sacred obligation to the minority communities who are of our own. " 34. Mr. Giri has cited the cases of Frank Anthony Public School employees Association V/s. Union of India and others, AIR 1987 SC 311 and mr. Y. The Clamma V/s. Union of India and others, AIR 1987 SC 1210 . These two decisions, in my view, do not advance the petitioners contention. These two decisions dealt with and upheld certain regulations relating to the service conditions of the employees of the two minority schools. These decisions also did not depart from the well established position" that the extent of the right is to be determined not with reference to any concept of State necessity and general socital interest but with reference to the educational institutions themselves, that is, with reference to the goal of making the institutions effective vehicles of education for the minority community or other persons who resort to them". Proceeding from this position the regulatory provisions were considered individually and separately and at least one was found to offend Article 30 (i ). The other regulatory provisions were upheld on the ground that they were "aimed at attracting competent staff and consequently at the excellence of the educational institution" and hence "permissible regulations which in no way detract from the fundamental right guaranteed by Article 30 (i) to the minority institution to administer their educational institutions". In fact, in the case of Frank Anthony Public School, AIR 1987 SC 311 , Chinnappa reddy J. said in para 13 t "the question in each case is whether the particular measure is, in the ultimate analysis, designed to achieve such goal without of course nullyfying any part of the right of management in substantial measure. " 35. These two decisions in no way support the contention that once regulatory measures are framed by the Legislature or the executive these would ipso facto apply to all institutions whatever be their character and irrespective of the merits or the mischief value of these regulations in so far as the minority institutions are concerned. 36. Mr. Giri, in support of his contention, has also relied upon the case of Christian Medical College Hospital Employeesunion and others V/s. Christian Medical College Welfare Association and others, AIR 1988 SC 37 . This decision examined the applicability of the Industrial Disputes act, 1947 to a minority institution and held : "the I. D. Act which is general law for prevention and settlement of industrial disputes cannot be said to interfere with the right of the minorities to establish and administer education institutions. The I. D. Act is one which ts enacted as a social security measure in order to ensure welfare of labour. " (Emphasis supplied) 37 I do not see how this decision helps for it is never in dispute that a minority institution is not immune from the general laws of the land. This aspect of the matter was also noted in St. Xaviers Colleges case Paragraph 174 : "regular tax measures, economic regulations, social welfare legislation wage and our legislation and similar measures may, of course have some effect upon the right under Article 30 (i ). This aspect of the matter was also noted in St. Xaviers Colleges case Paragraph 174 : "regular tax measures, economic regulations, social welfare legislation wage and our legislation and similar measures may, of course have some effect upon the right under Article 30 (i ). But where the burden is the same as that borne by others engaged in different forms of activity, the similar impact on the right seems clearly insufficient to constitute and abridgment. " 38. This observation was made in the context of the situation "where a law is not a direct restriction of the right but is designed to accomplish another objective and the impact upon the right is secondary or indirect. " (Emphasis supplied) 39. In the present Act we are confronted with regulations which directly curb the right to establish a medical college and hence these regulations will have to be tested on an altogether different scale, as indicated by the Supreme Court. 40. Mr. Giri has further relied upon the case of Bihar State Madarsa education Board, Patna V/s. Managing Committee of Madarsa Hanfia Arabic college AIR 1990 SC 695 . This decision struck down one of the provisions of the Bihar State Madarsa Education Board Act as violative of Article 30 (i) and upheld some other provisions relating to the constitution and composition of Bihar State Madarsa Education Board. In doing so it noted in Paragraph 7 of the judgment; "article 30 (i) protects the minorities right to manage and administer institutions established by them according to their choice but while seeking aid and recognition for their institutions there is no constitutional obligation that the Board granting aid or recognition or regulating efficiency in minority institution should consist of members of exclusively belonging to minority communities. " 41. I do not see how this case can be relied upon in support of Mr. Giris contention. 42. Mr. Giri has relied upon two more decisions reported in the cases of Andhra Pradesh Chriitian Medical Education Society V/s. Government of andhra Pradesh and another, AIR 1986 SC 1490 and All Bihar Christian school Association and another V/s. The State of Bihar and others, AIR 1988 sc 305 . I propose to deal with these two decisions later as these were also relied upon by the learned Advocate-General. 43. I propose to deal with these two decisions later as these were also relied upon by the learned Advocate-General. 43. As indicated above the learned Advocate-General did not go into a detailed examination of the merits of the regulatory provisions contained in the Act but primarily argued that there was no reason why the regulatory measures might not be made applicable at the very threshold and the establishment itself of minority institutions may not be subjected to those measures. He relied on decisions reported in AIR 1988 SC 305 and AIR 1986 SC 1490 . 44. Now, for a proper understanding of the decision in the case of all Bihar Christian School Association, AIR 1988 SC 305 , it is necessary to bear in mind that this decision examined and upheld certain measures which the minority schools were required to comply with in order to secure their recognition from the State Government. These measures were never sought to be applied at the stage of-establishment and did not constitute any bar to the establishment of a minority school. Hence all the observations made in the decision are naturally to be understood in this background. Moreover, there are certain observations in this very decision which run counter to the argument advanced by the Advocate-General. After noticing and "summing up a number df ear Her decisions of the Supreme Court, it was stated in Paragraph 9 as follows i "minority institutions may be categorised in three classes, (i)educational institutions which neither seek aid nor recognition from the State, (ii) institutions that seek aid from the State, and (iii) educational institutions which seek recognition but not aid. Minority institutions which fall in the first categofy are free to administer their institutions in the manner they like, the State has no power under the Constitution to place any restriction on their right of administration. This does not mean that an unaided minority institution is immune from operation of General laws of the land. A minority institution cannot claim immunity from contract law, tax measures, economic regulations, social welfare legislation, labour and industrial laws and similar other measures which are intended to meet the need of the society. But institutions falling within the second and third categories are subject to regulatory provisions which the State may impose. It is open to the State to prescribe conditions for granting recognition or disbursing aid. But institutions falling within the second and third categories are subject to regulatory provisions which the State may impose. It is open to the State to prescribe conditions for granting recognition or disbursing aid. These conditions may required a minority institution to follow prescribed syllabus for examination, course of study, they may further, regulate conditions of employment of teachers, discipline of students and allied matter. The object and purpose of prescribing regulations are to ensure that minority institutions do not fall below the standard of excellence expected of an educational institution and that they do not fall outside the main stream of the nation. " 45. From the earlier paragraphs of the decision it is also manifest that when their Lordships in the above quotation speak of the institutions of category (i) not being immune from administration of general laws of the land they have in mind situations "where a law -is not a direct restriction of the right but is designed to accomplish another objective and the impact upon the right is secondary of indirect" and not a direct curbing of the right to establish as by the present Act. 46. Again in the case of Andhra Pradesh Christian Medical Education society, AIR 1986 SC 1490 , the Supreme Court was satisfied that operating behind the veil of minority institutions was a pretender and a self-seeker. The passage relied upon by the Advocate-Generel (Paragraph 8)does not advance his case at all, but only states the obvious that the authorities are not powerless to enquire for themselves regarding the bona fides of an institution claiming to have been established in exercise of the right under Article 30 (i ). In a given case if after due investigation the authorities find that the institution was a minority institution then the provisions of the Act would not apply to it. In case, however, it is found the institution is, in fact, a private venture without any protection of article 30 (i), then the consequence of contravening the provisions of the act shall surely follow. In the later case, however, the sponsers of the institution shall have the right to challenge the finding of the authorities and seek redressal before a proper forum and ra accordance with law. 47. In the later case, however, the sponsers of the institution shall have the right to challenge the finding of the authorities and seek redressal before a proper forum and ra accordance with law. 47. In view of the aforesaid I am unable to accept the contention of the learned Advocate-General that not only the right to administer but also the right to establish is subject to the regulatory powers of trie-State. At this stage it would be useful to note that it is manifest from; the observations of the Supreme Court in the case of Kerala Education Bill, AIR 1958 SC 956 and State of Kerala V/s. Very Rev. Mother Provincial, AIR 1970 sc 2079 (Paragraph 8) that Article 30 (i) contemplated two distinct and separate rights separated in point of time and involving quite different transactions. In Kerala Education Bill case, AIR 1958 SC 956 at page 982 the Supreme Court spoke of the article giving two rights to a minority, i. e. , (i) to establish and (ii) to administer. In the case of Mother Provincial, air 1970 SC 2079 , the Supreme Court further said that the two rights were separated in point of time. In a series of decisions by the supreme Court the right to administer has been held to be subject to the regulatory powers of the State, but not a single decision could be brought to my notice in which the right to establish was also held to be subject to such regulatory measures save and except the general laws of the land whose impact on the right under Article 30 is not direct but indirect and secondary. 48. On the contrary there are decisions of the Supreme Court which can only mean that the right to establish has been h Id to be unqualified and unfettered and not subject to the regulatory powers of the State: In state of Kerala V/s. Very Mother Rev. Provincial, (Supra) Hidayatullah, C. J. speaking on behalf of the Constitution Bench said ; "article 30 (i) has been construed before by this Court. Without referring to those cases it is sufficient to say that the clause contemplates two rights which are separated in point of time. The first right is the initial right to establish institutions of the minoritys choice. Without referring to those cases it is sufficient to say that the clause contemplates two rights which are separated in point of time. The first right is the initial right to establish institutions of the minoritys choice. Establishment here means the bringing into being of an institution and it must be by a minority, community. . . . . . . . . . . . . . . The next part of the right relates to the administration of such institutions. Administration means management of the affairs of the institution,. This management must be free of control so that the founders or their nominees can mould the institution as they think fit, and in accordance with their ideas of how the interests of the community in general and the Institution in particular will be best served. No part of. this management can be taken away and vested in another body without an encroachment upon the guaranteed right. There is, however, an exception to this and it is that the standards of education are not a part of management as such. These standards concern the body politic and are dictated by considerations of the advancement of the country and its people. Therefore, if universities establish the syllabi for examinations they must be followed, subject however, to special subjects which the institutions may seek to teach, and to a certain extent the State may also regulate the conditions of employment of teachers and the health and hygiene of students. . . . . . . . . " 49. It is apparent from the above that what the Constitutional Bench of the Supreme Court envisaged as subject to regulations was only the second right to administer while the first right to establish was implicitly unqualified. 50. Again the concluding lines in Paragraph 174 of the decision in st. Xavier"s College case, AIR 1974 SC 1389 , say : "if an educational institution established by a religious minority seeks no recognition, affiliation or aid the State may have no right to prescribe the curriculum, the syllabi or the qualification of the teachers. " 51. 50. Again the concluding lines in Paragraph 174 of the decision in st. Xavier"s College case, AIR 1974 SC 1389 , say : "if an educational institution established by a religious minority seeks no recognition, affiliation or aid the State may have no right to prescribe the curriculum, the syllabi or the qualification of the teachers. " 51. Following this in the case of All Bihar Christian School Association, air 1988 SC 305 , it was stated in Paragraph 9 as follows : "minority institutions may be categorised in three classes, (i)educational institutions which neither seek aid nor recognition from the State, (ii) institutions that seek aid from the State, and (iii) educational institutions which week recognition but not aid. Minority institutions which fall in the first category are free to administer their institutions in the manner they like, the State has no power under the Constitution to place any restriction on their right of administration. This does not mean that an unaided minority institution is immune from operation of general laws of the land. A minority institution cannot claim immunity from contract law, tax measures, economic regulations, "social welfare legislation, labour and industrial laws and similar other measures which are intended to meet the need of the society. But institutions falling within the second and third categories are subject to regulatory provisions which the State may impose. It is open to the State to prescribe conditions for granting recognition or disbursing aid. These conditions may required a minority institution to follow prescribed syllabus for examination, course of study, they may further regulate conditions of employment of teachers, dis-cipline of students and allied matter. The object and purpose of prescribing regulations are to ensure that minority institu-tions do not fall below the standard of excellence expected of an educational institution and that they do not fall outside the main stream of the nation. " 52. In view of the position described above i am unable to accept the contentions. advanced by Mr. Giri, on behalf of the petitioners, and by the learned Advocate-General, on behalf of the State. 53. Even assuming that regulatory measures can be applied at the inception itself and the establishment of an institution can be subjected to some regulations without offending Article 30 (i) the provisions of the act, in any event, do not qualify as such measures. Giri, on behalf of the petitioners, and by the learned Advocate-General, on behalf of the State. 53. Even assuming that regulatory measures can be applied at the inception itself and the establishment of an institution can be subjected to some regulations without offending Article 30 (i) the provisions of the act, in any event, do not qualify as such measures. In order to test the validity of the provisions of the Act in terras of Article 30 (i) it is necessary to bear in mind that so long as this Article forms part of Part III of the Constitution a minority institution established in exercise of this right shall continue to enjoy a special status quite different from a non-minority private institution. Once again recalling the case of All Bihar christian School Association, AIR 1988 SC 305 , it is to be-noted that section 3 of the Bihar Non-Government Secondary Schools (Taking over of Management and Control) Act, 1982 was saved and upheld by the supreme Court precisely for the reason that it did not fail to bear the distinction between a Non-Government Secondary School and a minority secondary school. It follows that any legislative enactment or an executive fiat overlooking this distinction or seeking to obliterate it would offend article 30 (i) and would invite interference by the Courts. The Bihar medical Institutions (Regulation and Control) Act, 1981 is one such enactment. In its provisions any distinction between a minority institution and a non-minority private institution is conspicuous by its absence. The Bihar medical Institutions (Regulation and Control) Act, 1981 is one such enactment. In its provisions any distinction between a minority institution and a non-minority private institution is conspicuous by its absence. Sections 2 and 8 of the Act are to be viewed together ; these are as follows: "section 2.- Regulations and Control on Medical Educational institutions.- Except as otherwise provided in this Act no person shall - (a) organise, maintain, manage or promote any institution to undertake [conduct, provide or offer any instruction in the branches of learning known as medical education or allied branches of learning in modern medicines ; (b) admit or offer admission to a course of study of a University incorporated by any law of the Central or the State government which leads to examination and to grant and confer degrees, diplomas and certificates in the branches of the medical education or allied branches of learning in modern medicines ; (c) provided instructions, lectures, tutorials, practical work in the laboratories in medical education irrespective of whether it leads to an examination and to grant of degrees, diplomas or certificates in medical science or allied branches of learning : piovided that no medical courses of study shall be opened by any individual or body or, institution registered under the societies Registration Act, 1960 or by any unregistered agency without the prior permission of the State Government ; provided further that the permission mentioned above shall be obtained before admitting or enrolling any student for the proposed course of medical study. Explanation.- The terms person used in the first proviso includes a body, institution or organisation mentioned in the first proviso. " "section 8 - The powers to constitute Governing Bodies far Private medical Colleges shall vest in the State Government - (i) Notwithstanding the provisions contained in the Acts and regulations of the Universities concerned, the powers to constitute Governing Body for the Private Medical colleges shall vest in the State Government. (ii) The State Government may give directions to the Private medical Colleges for determining recruitment rules for teachers, their service conditions, scales of pay, teaching experience, minimum or maximum age and whether incumbents of such posts should have the privilege of private practice or not. (ii) The State Government may give directions to the Private medical Colleges for determining recruitment rules for teachers, their service conditions, scales of pay, teaching experience, minimum or maximum age and whether incumbents of such posts should have the privilege of private practice or not. (iii) The affiliation of such of the private Medical Colleges may be withdrawn in the event of non-compliance with the directions given State Government or the Medical Council of India within the stipulated time. (v) The decision of the State Government will be final in the event of difference of opinion on Any subject between the state Government and a Private Medical College. " 54 Section 2 seeks to put a total and complete ban on the establishment of a medical college without the prior permission of the State government without any discrimination between an institution sought to be established in exercise of the right under Article 30 and any other non-Government institution. Even if the college is established after obtaining the permissions of the State Government the provisions of Sec.8 alone are sufficient to totally destroy the right to administer guaranteed under article 30 (i ). The two Sections reveal that the Act was framed without any apprehension of Article 30 (i) in the Constitution. The provisions of Sections 2 and 8 of the Act if applied to a minority institution would definitely rob the minorities of their right secured under the Constitution and would, therefore, invite an interference by this Court. As regards the nature of interference it is to be noted that the Constitution Bench of the Supreme Court in The Xaviers College case did not declare the offending provisions of Gujarat Universities (50 of 1949) as ultra vires but but declared that the provisions in question were inapplicable in so far as minority institutions were concerned. Following this it must be declared and is hereby declared that the provisions of Sections 2 and 8 of the act shall not apply to institutions established in excise of right guaranteed under Article 30 (j) of the Constitution. The non-application of Sec.2 would automatically render Sections 3 (application for permission), 4 (undertaking for permission), 5 (inspection before permission), 6 (permission from the Government of India) inapplicable ; needless to say that the remainder of the Act which deals with the consequences of contravention of the provisions contained in Sec.2 shall also be inapplicable. The non-application of Sec.2 would automatically render Sections 3 (application for permission), 4 (undertaking for permission), 5 (inspection before permission), 6 (permission from the Government of India) inapplicable ; needless to say that the remainder of the Act which deals with the consequences of contravention of the provisions contained in Sec.2 shall also be inapplicable. In short, the Act in its present form must be held to be inapplicable to an institution established under Article 30 (i) of the Constitution. 55. For the reasons stated above I hold that the assumption on which this application is pressed is devoid of substance. I accordingly, find the application without any merit and fit to be dismissed and to do hereby dismiss the application. S. B, Sanyal, J.- I have perused the judgment of my learned Brother aftab Alam, J. , but I regret not being able to fully agree with his reasonings and conclusions. 56. The two applications (C. W. J. C. Nos.7985/90 and 3020/90), even though were heard one after the other, relate to the establishment of the same institution. In reality, C. W. J C. No.3020/90 is in the nature of a counter by the citizens to the establishment of the Medical College by al-karim Educational Trust, which is a party-respondent to the writ petition. 57. I, therefore, think that both the writ petitions need be taken up together. 58. The facts of C. W. J. C. No.7985/90 are as follows 59. In this writ application the petitioners seek issuance of a command directing the respondent-State and the University to recognise and affiliate the Katihar Medical College, an institution claimed to have been established by Al-Karim Educational Trust, a registered Muslim minority trust, whose aim and object, inter alia, is to provide facility for advance education and training and work for the moral and cultural uplift of the muslim community in particular - vide Annexure-4 to the writ petition. It is said that the Trust in its meeting held on 31-5-1987 (vide enclosure to annexure-5) resolved to start and establish a Medical College to be known as Katihar Medical College, Katihar. It is said that the Trust in its meeting held on 31-5-1987 (vide enclosure to annexure-5) resolved to start and establish a Medical College to be known as Katihar Medical College, Katihar. The further relief sought for is to direct the Lalit Narain Mithila university to permit the students of the petitioners College to appear, in the first year M. B. B. S. ensuing examination to be held from 15th January, 1991, for the sessions 1987-88, 1988-89 and 1989-90, which is pre-clinical phase under the Rules and Regulations of the Medical Council of India. 60. On the 17-12-1990 when the matter was listed for admission, with the consent of the learned counsel for the parties, it was decided that the matter be disposed of at the stage of admission itself and the parties were at liberty to file affidavit, counter-affidavit and reply thereto within a time framed and directed to be listed on 4th January, 1991 for final disposal. 61. Accordingly, the matter was put up and parties counsels were heard at length. 62. On 16-5-1988 the Chairman-cuw-Munaging Director of Katihar medical College made an application (vide Annexure-5) to the Vice-Chancellor, l. N. Mithila University that pursuant to the Resolution dated 31-5-1987 they have set up a College known as Katihar Medical College, which is functioning smoothly at Patna with adequate teaching and non-to aching staff and lab-equipment from the Session 1987-88 in a rented house at Rajabazar at Patna and will be shifted to Katihar, after construction of the College building at Katihar, which is in progress. As the college is within the territorial jurisdiction of the said University at steps may be taken for recognition and affiliation of the College and get an inspection of the College d > ne by the University Inspector. The Vice-Chancellor seemed to have constituted an Inspection Team of five persons, two of them are retired Professors of Darbhanga Medical college, one from Magadh Medical College, Gaya with the Dean, Faculty of Medicine of the concerned University. The Inspector of Colleges was made the convenor of the Inspection Team. The Vice-Chancellor seemed to have constituted an Inspection Team of five persons, two of them are retired Professors of Darbhanga Medical college, one from Magadh Medical College, Gaya with the Dean, Faculty of Medicine of the concerned University. The Inspector of Colleges was made the convenor of the Inspection Team. On 1 -4-1989 the Inspection report recpmmended grant of temporary affiliation for three Sessions 1987-88, 1988-89 and 1989-90 after the approval of the State Government, subject to the fulfilment of certain conditions within a year, namely, shifting of the College, appointment of more teaching staff in the Department of Anatomy and Physiology and deposit of affiliation fees ; but the inspection Report was not endorsed by the Dean, Faculty of Medicine of the respondent-University (vide Annexure-5-A ). On 26-6-1989 the registrar of the respondent-University requested the Secretary, Health department to take an appropriate decision in the matter in view of the inspection Report (vide Annexure 5-B ). 63. It appears, in the meantime, the Government thought of prosecuting the Trustees and the Principal of the College for starting a Medical college without conforming to the requirement of Bihar Medical Educational institutions (Regulation and Control) Act, 1981, hereinafter referred to as the Act, and sought for legal opinion in this regard. The Standing counsel and the Advocate-General opined that a Minority Institutions has a right to establish such an Institution and prior approval for such establishment is not necessary under Sec.3 of the Act, but the State government has a right to examine the claim of the society and of the institution whether it is at all a minority institution within the meaning of Article 30 (i) of the Constitution or not. In sort, the draft first information report to prosecute the Trustees and the Principal was not approved (vide Annexure-6 ). On 5-12-1990 Mr. Azad, the then Health minister noted in the file that in view of -the Inspection Report by the team constituted by the L. N. Mithila University as also the opinion of the Advocate-General, the establishment of the College does not infringe the provisions of the Act and that the Minister is satisfied on the basis of the papers placed before him that it is a Minority Institution and, therefore, it is a case in which recognition should be granted by the Government for the sessions 1987-88, 1988-89 and 1989-90. On 5-3-1990 Dr. On 5-3-1990 Dr. Jagannath Mishra gave a note that in the light of the Inspection conducted by the Vice-Chancellor of the University, the Institution be given tempoary recognition (vide Annexure-1 ). The Chairman-cum-Managing director of the Medical College by his letter dated 8.2.1990 asked the vice-Chancellor of the respondent-University that as the College has already admitted students in the first year M. B. B S. Course for the session 1987-88, the University may be pleased to recommend grant of temporary affiliation for the three sessions 1987-88, 1988-89 and 1988-90, and the students already admitted in first year M. B. B S. course for the session 1987-88 be allowed to appear in the ensuing examination of first year m. B. B. S. examination of 1989 (vide Annexure-7 ). The request was repeated on 9-7-1990 (vide Annexure-7-A ). On 11-6-1990 the Secretary to the Governor of Bihar wrote to the Vice-Chancellor that the Chancellor desires a proposal for a transitory regulation through Inter University board regarding holding of first year M. B B S examination of the students of Katihar Medical College, as it involves the career of large number of students (Annexure-7. B ). 64. The petitioners have annexed a letter of Ex-Home Minister of government of India asking the Chief Minister that since the College was established in the year 1987 for the benefit amongst others, the minorities, he may give his personal attention in regard to the affiliation of Katihar medical College (Vide Annexure-8 ). Petitioners have also annexed a newspaper cutting (Annexure-9) of daily Hindi newspaper (Hindustan)dated 14-11-1990 where the Vice-Chancellor in an interview had taken the stand that he would prefer to resign than to succumb to the outside pressure to give temporary recognition to the College by framing temporary regulation. According to the Vice-Chancellor, the question of affiliation could only arise after inspection by a team of Medical Council of India, which have provided "minimum standard requirement" for establishment of Medical College for admission of 100 students annually. The Management of the College has earlier managed an inspection by the University and obtained a favourable report, even though the Dean of the Faculty of medicine refused to participate in the inspection etc. etc. 65. The Additional Secretary in the Department of Health and education, Government of Bihar, has filed a counter-affidavit on behalf of respondent-State. The Management of the College has earlier managed an inspection by the University and obtained a favourable report, even though the Dean of the Faculty of medicine refused to participate in the inspection etc. etc. 65. The Additional Secretary in the Department of Health and education, Government of Bihar, has filed a counter-affidavit on behalf of respondent-State. He has denied the institution to be a minority one, but a financial venture for the Society, and its office-bearers. The inspection report does not contain any evidence to show that it has even bare minimum facilities imparting medical education. It has not been disclosed as to how many of the inhabitants of Purnea and Katihar districts have obtained admission in the institution for whose avowed interest the College was established. It has also been averred that it is not known how Rs.95.00.000/- (ninety five lacs) has been invested in building construction when on 31-3-1989 the institution had only Rs.18.00.000/-and odd as would be manifest from the Inspection Report. The Government has reports that huge capitation fees have been realised. Assuming the institution to have been established by the minority, it must for the purpose of recognition and affiliation conform to the requirement of minimum standards laid down for a Medical College by the Medical Council of India, which, the instant College do not at all fulfil, neither in the number of beds nor the staffing pattern required unier the Rules of the Medical Council of India No hospital has at all been established, which is the pre-requisite for the second year degree course and in absence of a hospital with required beds the petitioners institution cannot be permitted to continue teaching nor the affiliation can be granted. It has also been stated that although the claim for recognition for establishment of minority College is at Katihar, the college has not been established at Katihar, but, running at Patna from the very beginning nor the petitioners have ever made any application to the State Government for establishing a minority college. On receipt of the Inspection Report of l. N. Mithila University and on its examination the State Government found that the institution does not qualify for recognition and it proposes to send a request to the Indian Medical Council to send its team for inspection and submit a report to the State Government as to whether the institution qualifies for recognition/affiliation. Only after the report of the Expert Committee of the Indian Medical Council of India, the government is prepared to reconsider the matter, but on the basis of the material made available, the State Government is satisfied that the institution does not qualify for recognition/affiliation and has, the refore, rejected the claim for recognition, The Regulation framed by the medical Council of India is applicable to all the institutions, whether established by the minority or by the majority or even by the Government and any institution seeking recognition and/or affiliation, the Regulations made for excellence of education will be made applicable which, in no way, abridge any right guaranteed under the Constitution. The college has no infrastructure nor has sufficient number of qualified teachers inasmuch as out of four and half years of study, 18 months are occupied by study of Phase I (pre-clinical subject ). After passing pre-clinical subjects, three years study in clinical and para-clinical subjects are required. It is said that since College has no hospital facilities of required standard, the students will be at a great disadvantage on passing the first year M. B. B. S. examination. It has also been averred that the found position of the institution is very meagre by which a medical college cannot be run. For establishing a medical college the minimum need is of rupees twenty five crores and the petitioners apart from owing land cannot satisfy that it has sufficient fund to establish a medical college. The entire motive for establishing the institution is to extract huge money as capitation fee and is thus a commercial venture. The petitioners are, therefore, not entitled to any relief. 66. A counter-affidavit has also been filed on behalf of the University where it has been stated that under Sec.21 (2) (d) of the Bihar state Universities Act, 1976, the State Government has to give approval before the University can give affiliation to a medical college. The State government is required to consider the financial viability of the college, the nature and the form of the proposed management of the college, viability of the academic standard and all other conditions which are likely to have adverse effect to the interest of students admitted to such college. The State government is required to consider the financial viability of the college, the nature and the form of the proposed management of the college, viability of the academic standard and all other conditions which are likely to have adverse effect to the interest of students admitted to such college. It has also been everred that inspite of repeated warning by the Government through Press-Note and notices, there has been unregulated and indiscriminate opening of medical colleges, Engineering Colleges etc. without adequate facilities. This is hampering the cause of medical and other educational institutions and highly detrimental to the interest of the students who obtain admission after payment of huge capitation fee as donation. This has necessitated the Government to prescribe regulation and control on the opening of such Colleges. An application is required to be made under Sections 3 and 4 of Bihar Medical Educational institutions (Regulation and Control) Act, 1981, by the Governing body in a prescribed form with an undertaking that the institution will not be established and used for private gain or profit. The State on receiving an application under Sec.3 of the Act will cause an inspection to be made by the Medical Council of India or Inspector appointed by the State Government to see whether the college or institution seeking permission to start medical course of studies fulfils the conditions laid down by the Medical Council of India. On completion of the inspection and on consideration of the report the State Government shell have to seek the permission of the Government of India and the Medical council of India for granting permission to the starting of the course of medical studies by the applicant. Any person contravening any of the provisions of the Act are liable to punishment of fine and imprisonment the University does not come into picture at the first instance, but the question of affili ation will arise only after the process under the Act as well as the process required under Bihar Universities Act (23 of.1976)as amended up-to-date are completely exhausted. The University, therefore, can take examination of only such students who are students of the College maintained and owned by the University or admitted to its privilege. The University, therefore, can take examination of only such students who are students of the College maintained and owned by the University or admitted to its privilege. The question of holding examination of the students of the petitioners college does not at all arise since the College has not been admitted to the privilege of the respondent-University nor the students of the petitioners college have been registered with the University as regular students. 67. The petitioners have filed reply to the two counter-affidavits. They have reiterated that it is a minority institution. There has been denial of misuse of financial powers and/or realisation of capitation fees from the students. It is said that they have proper infra-structure inasmuch as steps have been taken to teach clinical subjects in 130 bed hospital of Kathihar N. F. Railway for which the Railway Ministry has already been approached. The college is in the nascent stage and the students have only been admitted in the first year, which lasts one and half years and at this stage the students are not required to do clinical course and in that view of the matter no objection can be raised regarding the beds available in a hospital. The petitioners satisfied the requirement of the Medical Council of India as arrangements are being made with the approval of the Union of India to make use of the railway hospital at katihar. The petitioners college fulfils all the criteria laid down by the medical Council of India regarding number of teaching post and other staff in all departments, and they are taking steps to expand the number of posts to meet the future requirement in case the State Government grants affiliation and recognition immediately. In the reply to the counter-affidavit instances have been cited how S. K. Medical College, muzaffarpur has been started by a private individual with no hospital arrangement. Similarly, they have cited the instances of opening of pataliputra Medical College The State Government has, therefore, adopted a pick and choose method in refusing recognition of the petitioners college which is in violation of Article 14 of the Constitution of india. Similarly, they have cited the instances of opening of pataliputra Medical College The State Government has, therefore, adopted a pick and choose method in refusing recognition of the petitioners college which is in violation of Article 14 of the Constitution of india. It ba further been asserted that the petitiouers college having been granted affiliation by the then Health Minister and the Chief Minister the State Government today is acting arbitrarily and unreasonably in reversing the order passed by the previous Government on political consideration and on irrelevant and extraneous consideration and without hearing the petitoiners case. It has also been averred that a minority community has an absolute right to establish an educational institution of their choice for which no prior permission of the State Government is at all required to be taken. 68. In the other writ petition viz. C. W. J. C. No.3020/90 a doctor claiming to be the President of a social organization and two social workers interested in medical education have sought for a direction for enforcement of Bihjar Medical Educational Institutions (Regulation and control) Act, 1981, since the Katihar Medical College is exploiting innocent students by charging capitation fee without even fulfilling the minimum requirement of the Medical Council of India for establishment of a Medical College. The so-called Trustees should be criminally prosecuted for starting a Medical College without any hospital attached to it and should be immediately closed, as provided under the Act and the Rules. 69. Admittedly, the Trust before its establishment in the year 1987 and even now has no medical college building of its own npr a hospital is owned or attached to it. The Medical Council of Indias recommendations on graduate medical education adopted by the Medical Council of India in March 1981 prescribe various modes as to admission in the medical course, selection of students, duration of course, medical curriculum, migration and transfer of students from one Medical College to another. It further lays down the first phase of study which is pre-clinical subjects which is of a duration of 15 months. Para-clinical/clinical subjects constitute phase II which is taught for 18 months collaterally with clinical subjects, such as Pathology and Microbiology and phase III is continuation of study of clinical subjects for three years after passing Phase I of the course. The entire course being of four and a half years. Para-clinical/clinical subjects constitute phase II which is taught for 18 months collaterally with clinical subjects, such as Pathology and Microbiology and phase III is continuation of study of clinical subjects for three years after passing Phase I of the course. The entire course being of four and a half years. It has also laid down the scheme of examinations, both of clinical and other than clinical subjects. In short, a complete Code relating to medical education in India whether the management is run by the Government or a private organisation including a minority community. Any institution desirous of its degrees and diplomas to be recognised by the Medical council of India must fulfil the curriculam prescribed by the Medical council of India. The Regulation applies from the initial stage of the establishment of a medical institution for maintaining an uniform standard for medical profession. In this background whether the recommendations are mandatory or directory is altogether irrelevant. Any institution seeking its degrees and diplomas to be respected and the doctors to be registered by the Medical Council of India must go through the prescribed medical curriculam of the Medical Council of India. 70. The State Government enacted the Act in the year 1981 in view of unregulated and indiscriminate opening of medical institutions in the state of Bihar by persons or bodies registered under the Societies registration Act without providing for adequate teaching facilities hampering the cause of medical education, to the detriment of the students admitted to such institutions after charging capitation fees. In Sec.2 of the act it required that except as provided under the Act, no person, which includes institutions and organisations, organise, maintain, manage or promote any institution to undertake institution of medical education or its allied branches of learning in modern medicine and admit or offer admission without prior permission of the State Government. Sec.3 required such an organisation or the governing body thereof intending to impart medical course of study to apply to the State Government in a format for permission to establish such an institution. Sec.3 required such an organisation or the governing body thereof intending to impart medical course of study to apply to the State Government in a format for permission to establish such an institution. The format requires the organisation to disclose relevant informations regarding ; establishment, financial resources, details about land, and building for the college, the attached teaching hospital, which are already available for starting medical course, details of the qualification of the technical staff that is available at the time of opening of the college, details of equipment and laboratory and library set up for the functioning of the course of study. details of bed strength and the teaching hospital, the projection or annual plans leading to setting up the required number of hospital beds according to the recommendation of the Medical Council of India and the management control over such hospitals, methods of recruitment of teaching staff and the condition of service of such teaching staff, the proposed number of students to be admitted in the year of starting the course of medical study, the basis of their selection, the scale of fees to be charged etc. Sec.4 of the Act required an undertaking by the Management that it will not run for private gain or profit; any change in the management will be reported to the State Government or the moneys collected by way of fees or donation or in any other form shall be credited to the account of the college fund ; number of yearly admission will not be increased at any time without prior approval of the State Government and the concerned University ; and the institution shall render instructions and impart medical education in accordance with the standards laid down by the Medical Council of India and the concerned University. Sections 5 and 6 lay down the requirement of inspection of the institution by the medical Council of India or Inspecter appointed by the State Government on receipt of the application for permission, in order to find out whether it fulfils the conditions laid down by the Medical Council of India for establishment of a Medical institution and on completition of the inspection the State Government in the Department of Health will obtain an order from the Government of India and the Medical Council of India for granting permission to the starting of the course of medical studies by the applicant. The Act was made applicable to all private medical colleges and medical institutions preparing or intending jtp prepare students for study in modern medicine leading to degrees and diplomas as included in the first schedule of India Medical Council Act which have not been permanently affiliated to any University in the State of Bihar as well as to such Medical Colleges and institutions which have been granted temporary affiliation from any University and before the receipt of recommendation for extension of the period for further affiliation. The institution! which have not applied for permission should do so within one month of the promulgation of the Ordinance. Sec.8 provided powers upon the State government to give directions to private Medical Colleges for determining recruitment rules, service conditions, scales of pay, teaching experience, minimum or maximum age and whether incumbents of such posts should have the privilege of private practice or not etc. Sec.10 provides penalty for breach of the provisions of the Act. 71. Sub-section (5) of Sec.60 of the Bihar State Universities act, 1976,. provides for the State declaring an institution to be a minority institution according to yardsticks laid down by it or of an affiliated technical or medical college to be constituted in accordance with the provisions prescribed in the Statutes. Sec.21 of the said Act deals with power and duties of Senate which include the power to affiliation of an institution. As regards medical colleges the provision reads as hereunder: "provided further that no medical college shall be affiliated except without the prior approval of the State Government. Before granting such an approval, the State Government shall consider the financial viability of the College, the nature and form of the proposed management of the College, the viability of the academic standard and all other conditions which are likely to have adverse effect on the interests of students admitted to such a College. " From a decision in Allama Eqbal College v State 1991 BBCJ 64 , it appears that the State Government in exercise of the power under sub-section (5) of section 60 of the Act has prescribed yardstick for declaration of an institution as a minority institution. It has been held that the conditions laid down are consistent with the judgment of the supreme court and are touchstone for judging the real character of an institution. 72. It has been held that the conditions laid down are consistent with the judgment of the supreme court and are touchstone for judging the real character of an institution. 72. From a perusal of the aforesaid Acts, Regulation and the yardsticks provided by the state government, it is manifest that the state has also provided regulatory measures right from its inception, without exception in order to achieve excellence of medical education in the state and to protect the exploitation of the students studying in such institutions. 73. Learned counsel for the petitioners submits that the aforesaid provisions of the Act and the recommendations of the Medical Council of india trangress the right conferred under Article 30 of the constitutions of india for the minorities to establish and administer education institutions of their choice. According to the learned counsel, the choice of minority cannot be limited or contined to any language, script or culture, but will also embrace professional institutions including medical institutions. The twin rights, according to the learned counsel, under Article 30 (1) of the Constitution of india are initially to establish an institution of their choice and the subsequent right to administer such an institution. The regulatory right of the state, therefore, according to the learned counsel, is not attracted at the initial stage of establishment of an educational institution of the minorities choice. It has also been urged that the bihar medical Educational institutions (Regulation and Control) Act has, therefore, no application to an education institution established by the minority. 74. The learned Advocate-General on the other hand, submitted that the requirement to seek prior permission under the Act before establishment of a private Medical College can under no stretch of imagination be violative of Article 30 (1) of the constitution. According to the advocate-General, it is the state and the state alone has the right to determine whether the institution is at all a minority institution ; and that could be determined only when permission to establish institution is sought for under the Act. A mere claimthat it is a minorityinstitution is not enough. The state has a right to investigate and satisfy itself whether the claim is well-founded or ill-founded and the institution of minorities choice is in truth and reality an institution for the benefit of students pursuing their career in those institutions. A mere claimthat it is a minorityinstitution is not enough. The state has a right to investigate and satisfy itself whether the claim is well-founded or ill-founded and the institution of minorities choice is in truth and reality an institution for the benefit of students pursuing their career in those institutions. The state has a right to know whether the so-called institution is a financial venture or mis-adventure for the students. Relying on the decision in A. P. Chrisian Medical Education society V/s. Government of Andhra Pradesh, AIR 1986 SC 1490 , the learned Advocate-General Contended that the Government, the University and the court have the underterred right to piece the minority veil. He also drew my attention to a decision in All Bihar Christian School Association v. State of Bihar, AIR 1988 SC 305 , in contending that the terms and conditions as envisaged under the Act can be laid down for granting recognition to a minority institution as these are regulatory in nature since it seeks to secure excellence in education and efficiency in the management of the institution for all and sundry. 75. The ambit and scope of Article 30 of the Constitution has received consideration of the apex court, from time to time, and I need not refer to all of them beyond reiterating the observation of the apex court in kerala Education Bill, AIR 1958 SC 956 , that "minorities right to establish educational institutions of their choice means the right to establish real institution which will effectively serve the needs of their community and the schools who resort to their educational institutions. " When an institution seeks affiliation to the university, it agrees to follow uniform courses of study. Affiliation, as held by Chief, Justice Ray (as he then was) in ahmedabad St. Xavier College V/s. State of Gujarat, AIR 1974 SC 1389 , is meant for uniformity, efficiency and excellence in educational courses and does not violate any fundamental right of the minority institution under article 30. Affiliation, as held by Chief, Justice Ray (as he then was) in ahmedabad St. Xavier College V/s. State of Gujarat, AIR 1974 SC 1389 , is meant for uniformity, efficiency and excellence in educational courses and does not violate any fundamental right of the minority institution under article 30. The regulation of the Medical Council of India prescribes an uniform standard to be pursued by all Medical Colleges to be established, and if for that the State Government enacts a law requiring furnishing of information at the time of establishment whether the institution fulfils the minimum standard requirement for establishment of a Medical College, I do not think such an Act can at all be held to be violative of Article 30 (1)of the Constitution of India. On receipt of an application for permission the Act desires all persons intending to establish a medical institution to give some relevant informations which are requisite for running a medical institution and further provides for inspection of the institution by the medical Council of India, which is the ultimate authority to register the doctors passing through such institution. I fail to understand how that requirement can at all be held to be violative of fundamental right of the minorities. The right of minority to establish and administer minority institution implies the obligation and duty to render the very best to the students. I am quite aware of the observation made by Hidayatullah c. J. in Father W. Proost and others V/s. The State of Bihar, AIR 1969 SC 465 , that the "language of Article 30 (1) is wide and must receive full meaning and the protection afforded cannot be allowed to be whittled down even though the protection may not be enlarged. In St. Xavier College (supra) Mathew, J observed that: ". . . . . . . because Article 30 (1) is couched in absolute terms, it does not follow that the right guaranteed is not subject to regulatory laws. It is total misconception to say that the right is couched in absolute terms, the exercise of the right cannot be rtgulated or that every regulation of that right would be an abridgment of that right. " 76. It is total misconception to say that the right is couched in absolute terms, the exercise of the right cannot be rtgulated or that every regulation of that right would be an abridgment of that right. " 76. Article 30 is not a provision for pampering the minorities or to create a privileged class but to confer protection upon the minorities to advance learning of the minority boys and others, but the said provision can never be allowed to be source of commercial venture to the detriment of the persons pursuing career in those institutions. They must be educational institutions in truth and reality. It has been rightly held in a. P. Christian Medical Education Society (supra) that the Government, the university and the Court have the undeterred right to pierce the minority veil and discover whether lurking behind it no minority at all and in any case no minority institution. It has the right not only to go behind the claim of the institution as to its minority character but has a further right to determine whether the proposed institution is a true and real institutions fulfilling the positive indexes and norms fixed for establishment of such an institution. 77. The amplitude of the right |to establish and administer educational institution of their choice, even though has been decided by the apex court not to be limited only to language, script or culture, can it be said that such a choice extends to highly technical, sensitive and volatile institutions by ignoring the Government policy in relation thereto while dealing with this question Justice Mathew in St. Xaviers College (supra) observed as follows : "the question whether such educational institutions can include a military academy or a police training school need not be considered in the context of the facts of this writ petition, for, here, we are only concerned with an institution imparting general secular education as ordinarily understood. " 78. In my view, if recognition and affiliation are meant for maintaining uniformity, efficiency and excellence in educational courses and thus regulatory in nature, the norms and indexes fixed by legislation for establishment and continuance of such institution cannot be a variable one fora minority institution. " 78. In my view, if recognition and affiliation are meant for maintaining uniformity, efficiency and excellence in educational courses and thus regulatory in nature, the norms and indexes fixed by legislation for establishment and continuance of such institution cannot be a variable one fora minority institution. Likelihood of resort to Article 30 d) by adventurous minorities or by way of commercial venture has to be stopped, if not for others but for the benefit of the minorities themselves who innocently become victim of such mis-adventure, Article 30 will lose all its meaning and sanctity if it is allowed to operate as a fundamental right of minorities for exploitation of the minorities and/or persons pursuing study in the institution. 79. The Government has, therefore, a right of information as envisaged under Sec.3 of the Act before a medical institution is established in order to know whether it is a minority institution and the institution for which the information has been led fulfil the requirement and the norms of the Act and of the regulation for establishment of such an institution by any concern and whether the institution can conform to the fulfilment of the basic needs for educational excellence provided under the Act, Rules and Regulation. The Act, Rules and the Regulation can never be held to be an abridgment of the right of minorities under article 30, to my mind, they are regulatory in character for the excellence the standard of the institution imparting education. The right to regulate the excellence of education in the interest of students, in my opinion, exists, both at the stage when the institution is established and the right to regulate continues till the life time of the institution. Any minority institution which seeks recognition of the Government, affiliation by the university and the recognition of the degree by the Medical Council of india entitling the students to register themselves as doctors have to submit to the norms and standard laid down, from time to time for establishment of such an institution, whether it be a minority institution, majority institution or Government institution. I am clear in my mind that the heart of Article 30 (1) is unhurt by these regulatory measures both at the initial stage and subsequent thereto nor the substance of the protection guaranteed under Article 30 (1) is in any way abridged. 80. I am clear in my mind that the heart of Article 30 (1) is unhurt by these regulatory measures both at the initial stage and subsequent thereto nor the substance of the protection guaranteed under Article 30 (1) is in any way abridged. 80. Now coming to the inscant Medical College, it started admitting students without complying with the provisions of the Act. The Trust opened the Medical College at Patna without fulfilling the minimum standard prescribed by the Medieal Council of India for establishment of a Medical College. It had no building of its own nor any hospital attached to it for bed-side teaching which is a must, since out of four and a half years, three years are required to be divided to clinical subjects and pre-clinical subjects concurrently and collaterally. It is immaterial whether the recommendation of the Medical council of India is mandatory or directory, but if an institution wants itself to be recognised for getting its degrees or diplomas reckoned by the Medical Council of India, there must be substantial compliance of the minimum standard laid down for establishment of a Medical college. Jn the case of A P Christian Medical Education Society (supra)it has been observed that none could have imagined that a medical college could function without a teaching hospital, without the necessary scientific equipments, without the necessary staff, without the necessary buildings and without the necessary fund. It is said that the College is trying to acquire hospital of 40 beds at Katihar, which is a railway hospital, the management of which does not vests in the Trust It has been averred that a building of Rs.90.00000/- (ninety lacs) is being constructed at Katihar, whereas from a bare reading of the case in A. P. Christian Medical Education Society (supra) it appears that for establishment of a Medical College the financial requirement runs into several crores. 81. 81. My concluded opinion is that the Bihar Medical Educational institutions (Regulation and Control) Act is intra vires and does not infringe the fundamental right guaranteed under Article 30 of the Constitution and I am further of the opinion that in view of the decision of the Supreme Court in the case of A P Christian Medical Educational society (supra) courts have no right to protect the interest of the students by allowing them to appear at the examination as any direction to do so would be the fiat of the Court to disobey the statute to which the Institution owes its existence and would be destructing to the rule of the law. The Institution must be established and run by not transgressing the provisions of the Bihar Medical Educational Institutions (Regulation and control) Act and the Bihar State Universities Act, 1976 . I do not find any justification of the University authorities to inspect and make recommendation without prior approval of the State Government as envisaged under the Bihar Medical Educational Institutions (Regulation and Control) Act, 1981. 82. In course of the argument of the case we had observed and the learned Advocate-General also agreed that if the Institution makes an application for permission under the Act by giving all the details as required under the Act, the Government will consider the matter in accordance with law and if in the opinion of the Government the College fulfils the norms and indexes as laid down under the Act or is capable of substantial compliance in this direction it would not hesitate to grant permission. We have been assured by the learned Advocate-General that the Government will approach the. application with an open mind and will dispose it of in accordance with law. 83. Since the minorities right of establishment of an educational institution under Article 30 has been understood to be absolute and unfettered one, unrestricted by any norms and guideline for such establishment and there have been divergent views of the State Government, as would be apparent from the writ petition, I refuse to accede to the prayer of the writ petitioners in C. W. J. C. No.3020/90 for prosecution of respondent Nos.4 and 5 under Sec.10 of the Act. 84. 84. In the result, the respondent-state and the University cannot be directed to recognise and give affiliation to the Katihar Medical College, but the latter should abide by the terms of the Act and it does make an application under Sec.3 of the Act, it should be disposed of within three months of the making of an application. I refuse, to give permission to the students of the petitioners college for the sessions 1987-88, 1988-89 and 1989-90 to appear at the examination and the same will abide by the decision of the Government, aforesaid. The prayer for prosecution of the members of the Trust in C. W. J. C. No.3020/90 is rejected. There will be no order as to costs.