# THE AHMEDABAD ST XA VIERS COLLEGE. SOCIETY & . . ANR. ETC v. STATE OF GUJARAT & ANR - **Citation:** [1975] 1 S.C.R. 173 - **Court:** Supreme Court of India - **Decided:** 1975 - **Case number:** Writ Petition No. 232 and 233 of 1973 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-ahmedabad-st-xa-viers-college-society-anr-etc-v-state-of-gujarat-anr-6317 - **Pages:** 139 ## Headnote A B c D .. • E F G H 173 THE AHMEDABAD ST .. XA VIERS COLLEGE. SOCIETY & . . ANR. ETC. r. STATE OF GUJARAT & ANR. April 26, 197 4 [A. N. RAY C.J., D. G. PALEKAR, P. JAGANMOHAN REDD<, H. R. KHANNA K. K. MATHEW, M. H. BEG, S. N. Dw!VEDI, Y. V. CiiANDRACHUD AND A. ALAGIR!SWAMI, JJ.] Constitution of India 1950 Arts. 29 and 3~Whether mutually exclusiviScope of ·Gujarat Univusity Act, 1949-ss. 5, 33A(I) (a), 33A(l)(b), s. 39, s. 40(1) and .(2), a. 41(1), s. 51A(I) and 52A-Conslitutiona/ity. The first petitioner a religious denomination, run~ a college to provide hiaker education to Christian and other students. The petitioner's college was accorded af!iliation under •· 33 of tho Gujarat Univeraity Act, 1949 as amended in 1972. The Senate of the University passed a resolution that all instruction, .teaching and training in courses of studies in respect of which the University is .competent to hold examinations shall, within the University area, be conducted by the Unive~ity and shall be imparted by the teachers of tho University. Section S ot the Act provides that no educational institution situated within the University shall, save with the sanction of the State Government. be a5sociated in any way with or seek admission to anv privilege of anv other University established by law. Section 33A(l)(a) of the Act provides that every Colle.1" other than a Government Coliege or a College maintained by the Government, shall be under the management of a governing body which includes amon&" others. the Principal of: the College and a representative of the University nominated by the Vice-Chancellor. Section 33A(I) (b)(i) provides that in the care of recruitment of the Principa~, a selectiOn committee is required to b~ constituted consisting of. among others, a representative of the University nomi~ nated by the VicC-Chancellor and (ii) in the case of selection of a member of the teaching Btaff of the College a selection committee consisting of the Principal and a representative of the University nominated by the Vi·:e-Chancellor. Subsection (3) of the section "States that the provisions of sub-section (1) of s. 33A sha11 be deemed to be a condition of affiliation of every college referred' to in that sub-section. Section 39 provides that within the University area all Post.graduate instruction. teaching- and training shall be conducre·d by the ·University or by such affiliated College or institution and in such su~ct~ as may be prescribed by statutes. Section 40(1) enacts that the· 'Cou.rt of the University may determine that all instructions, teaching and training in courses of studies in respect of which the Unive.rsHy is competcn.~ to ho1d examinations shall he conducted bv the University and shall be imparted by the teachers of the University. Sub-section (2) of s. 40 states that the State Gover~rnent aball issue a notification declaring that the provisions of s. 41 shalf come into force on such date as may be stx"cified in the notification. Section 41(1) of the Act slates that all colleges within the Univeraity area which are alently struck down ·all attempts to make affiliation or recognition on terms tantamount to surrender of its rights under art. 30( I) as abridging or taking away those rights. Ag·ain, as without affiliation there can be no meaningful exercise of the right under arr. 30(1) the affiliation to be given should be consistent with that right D nor can it indirectly try to achieve what it cannot directly do. [21 lE-G] Re. The Kera/a Ed11catio11 Bli! 1957 [1959] S.C.R. 995. State of Kera/a \'. Very Rev. Mother Provincial etc. (1971] 1 S.C.R. 734 aind D.A.V. College etc. v. The State vf Punjab & Ors. [1971] Supp. S.C.R. 688 followed. (2). 1'he only purpose. that the fundan1ental right under Art. 30 ( 1) would .. sefve would be that minorities might establish their institutions, lay down their _,,,.,,,.J,.., own syllabi, provide instructions in the subjects of their choice, conduct exa1niT" nations and award degrees or diplomas. Such institutions have the right to seek E recognition to their degrees and diplomas and ask for aid where ·aid is give1,1 to other educational institutions giving a like education on the basis of the .excellence achieved by them. The State is bound to give recognition to their qualifications and to the institution~ and they cannot be dis:riminated except on the grou.nd of want of excellence in their educational standards so far as recognition of degrees or. educational qualifications is con:erned and \Vant of efficient management so far as aid is concerned. [212E-F] Khanna, /. F (I) Clause (I) of Art. 29 and clause (I) of art. 30 deal with distinct matters. It is not permissible to circumscribe or restrict the right conferred by cl. (1) of art. 30 by reading in it any limitation imported from cl. (1) of art 29. Article 29 ( l) confers ai right on any section of citizen'i havini distinct language, script or culture of its own to conserve the san1e. For invoking this clause it is no_t necesesary that the section of citizens should constitute a minority. As against that, the right conferred by art. 30(1) is only upon minorities which are based either on religion or language. Clause (1) of art. 30 contains the words "of 'their G choice". These words which qualify "educational institutions" show the vast discretion and option which the minorities have in selecting the type of institutions which they WMlt to establish. In case an educational institution is cstab1ishCd _by a minority to conserve its distinct language, script or culture, the right to establish and administer such institution would fall both under art. 29( 1) as well as under art. 30(1). The right to establish and administer such an institution is guaranteed by art. 30( 1) and the fact that such an institution does not conserve the distinct language, script or culture of a minority \VOtlld not take it out of the ambit of art. 30(1). [238D-H] }l · (2) ·The object of artides 25 to 30 was to preserve the rights of reliiious and linguistic minorities, to place them on_ a secure pedestal and withdraw .them from the vicissitudes of political controversy. _These provisions enshrined a befitting t ' A I • B c D • E F j G H ST. XAVIERS COLLEGE V. GUJARAT 177 ~dge to the minorities in the Constitution of the country whose greatest son ha.d laid down his life for the protection of the minorities .. As long as the Constittjtion stands as it is today, no tampering with those rights can be countenanced. Any attempt to do so would be not only an act of breach of faith, it would be constitutionally impermissible and liable to be struck down by the courts. Although the words secular state are not expressly mentioned in the Constitution, there can be no doubt that our Constitution-makers wanted establishment of such a state. The provisions of the Constitution were designed accordingly. There is no mysticism in the secular character of the state. Secularism is neither antiGod. nor pro-G.od, it treats alike the devout, the agnostic and the atheist. It eliminates God from the matters of the state and ·ensures that no one shall be discriminated against on the ground of religion, [224A-C] The idea of giving some special rights to the minorities is not to have a kind of a privileged or pampered section of the population but to give to the minorities a sense of security and a: feeling of confidence. The great leaders of India since tin1e immemorial had preached the doctrine of tolerance and catholi;ity of outlook. Those noble ideas were. enshrined in the Constitu.tion. S~cial rights for minorities were designed not to create inequality. Their real effect was to bring about equality by ensuring the preservation of the minority institution and by guaranteeing to the minorities autonomy in the matter of the aroval is to be withheld only in case of dismissal, removal, reduction in rank or termination of service is mala fide or by way of victimisation or other similar cause. Conferment of such blanket pC>wer on the Vice-Chancellor or other officer authorised by him for vetoing the disciplinary action of the managing body of an educational institution makes a serious inroad on the right of the managing body to &dminister an educational institution. [244A-B] (II) Section 52A should be held to be violative of art. 30(1) so far as minority educational institutions are concerned. Section 52A is \Videly worded and as it stands it would cover within its ambit every dispute connected with the conditions of service of a member of the staff of an educational institution how· ever trivial or insignificant it n1ay be. 'The effect of this section would be that the R\anaai,ng committee of an educational institution would be embroiled by its cm· ployees in a series of arbitration proceedings. Provisions of thii section would act M a spoke in the wheel of effective administration of an educational insti. tution. What is obj'ectionable in the section is the giving of the power to the ViceChancellor to nominate the umpire. This would cause an inroad in th~ right of the governing body to administer the institution. [244E-F] (12) The concept,of constituent colleges which is visu.alised in ss. 40 and 41 of the Act contemplates that the imparting of teaching at the undergraduate level in the prescribed course of ~tudies shall be only by the teachers of the university. The minority Cplleges as such would not be entitled to impart education in course of study through their own teachers. [2460) (13) Sections 40 and 41 are void in respect of minority educational institution. [245EJ A provision which makes it imperative that teaching in undergraduate courses can be conducted onlv bv the University and can be imoarted onlv by the teachers of the University pta,inly violates rights of minorities to establish and adtni· nister their educational institbtions. Such a provision must consequently he held A B • c D ... E F • G , H • • B c E F G ST. XAVIERS COLLEGE V. GUJARAT 179 qua minority institutions to result in contravention of art. 30( 1). Once s. 46 is • held to be unconstitutional so far as minorities are concerned. the same vice would 8fflict s. 41 because s. 41 can operate on1y if s. 40 survives the attack and ts held lo be not violative of art. 30(1). [245C-£.] (14) Abridgment of the right of the minorities to establish and.administer educational institutions of their choice is writ large on the face of the impugned provisions. The fact that no statutes or ordinances have been framed in pursuiμce of the impugned provisions would be hardly of much significance in determining the constitutional validity of the impugned provisions. It would not be a correct approach to wait till statutes arc framed violating the right under art. 30(1 ). [247El Trustees of Ronzan Catholic Separate Schools for Ottawa v. Ouawa Corporation and Ors. [1917] A.C. 76 referred to. Mathew and Chandrachud. JJ. ( 1) A n1ere look at art. 29( 1) and 30( I) would be sufficient to show that art. 29(1) cannot limit the width of art. 30(1). The right guaranteed to a religious or linguistic minority under art. 30 ( 1) is the right to establish any educational institution of its choice. Whereas art. 29(1) confers the right not only upon a minority as understood in its technical sense but also upon a section of the citizens resident in the territory of India, which may not be a minority in its technical sense, the beneficiary of the right under art. 30 is a minority, either religious or linguistic. Secondly, whereas art. 29 does not deal with education as such, art 30 deals only with the establishment and administration of educational institutions. It might be that in a given case the two might overlap. When a linguistic minority establishes an educational institution to conserve its language, the linguistic minority can invoke the protection of both the articles. When art. 30(1) says that a linguistic minority can establish and administer educational institutions of irs choice, it means that it can establish and administer anv educational institution. If a linguistic minority can establish only an educational institution to conserve its language then the expression "of their :hoice" in art. 30( 1) is pr~tically robb~d of it meaning. [251C-E; 250F; 251A-B] In re: The Kera/a Education Bill, 1957 [1959] S.C.R. 995. 1053; Rev. Fatlte' W. Proost and others v. State of Bihar and Ors. [1969] 2 s.C.R. 73; Rev. Sidhajbhai Sabhai and Others v. State 1Jf Bo1nbay [19631 3 S.C.R. 837; Rt. Rev. Bishop S. K. Patro and Others v. State of Bihar and Others f1970] 1 S.C.R, 172 and D.A.V. College etc. v. State of Punjab & Ors. [1971] Supp. S.C.R. 683 referred to. Dipendra Nath v. State of Bihar A.I.R. 1962 Patna, 101 approved. (2) (a) Over the years this Court has held that without recognition or affiliation there can be no real meaningful exercise of the right to estarblish and administer educational institutions under art. 30( 1). [256H] Ill": The Kera/a Education Bill !957, [1959] S.C.R. 995. 1053; Rev. Sidhajbhai Sabhai and others v. State of Bombay [1963] 3 S.C.R. 837. 856 a:nd D.A.V. College, etc. v. State of Punjab and Ors. [1971] Supp. S.C.R. 688, 709 referred to. (b) Jn The Kerala Education' Bill this Court pointed out that "no educational institution can in actual practi;;e be carried on without the effect of divestihJ that body of its exclu'live right to manage the educational institution. Under the guise of preventing rnaladmihistration, the right of the governing body of the College constituted by the religious minority to administer the institution cannot be taken away. The effect of the provision is that the religious minority virtually loses its right to administer the in;>titution it has founded. [2690-H; 270B] Kerala v. Mother Provincial [1971] 1 S.C.R. 734 at 740, fV. Proost v. Biliar' [1969] 2 S.C.R. 73 •t 77-78 and Rev. Bisho,p S. K. Patro v. Bihm· [1970] 1 S.C.R 172. (5) It is u.pon the principal and teachers of a ccl1ege that the tone and temper of an educational institution depend. On them would depend its reputation, the maintenance of dis•::ipline and its efficiency in teaching. The right to ~hoose a principal and to have the teaching conducted by teachers appointed by the management after an overall assessrnent of their outlook and philosophy is perhaps the most important fact of the right to administer an educational institution. There is no reason why a representative of the University nominated by the Vice Chancellor should be on the 5election Committee far recruiting the principal or for the insistence of the head of the department besides the representative of the University being on the Selection Committee for recruiting the men1bers of the teaching staff. So long as the persons chosen have the qualifications prescribed by the University, the choice must be left to the management. [270G-HJ .