Holding

The State's refusal to grant affiliation to the minority college without just and sufficient cause violates Article 30, rendering the action arbitrary and unconstitutional.

Summary

The Milli Talimi Mission, a minority teachers' training college, applied for university affiliation in 1977. Despite inspections and recommendations for affiliation by the university and the Education Commissioner, the Bihar Government repeatedly delayed, cancelled, and refused affiliation without giving sufficient reasons. The High Court directed the government to decide, but the government’s actions remained arbitrary, and it failed to produce key documents. The Supreme Court held that refusal to grant affiliation to a minority institution without just cause violates Article 30 of the Constitution, and the State’s conduct was arbitrary and unconstitutional. Consequently, the Court ordered the government to grant affiliation, allow the students to sit for examinations, and imposed costs on the State.

Issues considered

Whether a minority educational institution has a fundamental right to affiliation or government aid under Article 30 of the Constitution.
Whether the State's refusal to grant affiliation without just and sufficient grounds violates Article 30.
Whether conditions imposed by the State amount to unreasonable interference with the autonomy of a minority institution.
Whether the State’s arbitrary refusal and failure to produce documents constitute a breach of constitutional duty warranting cost imposition.

Legislation cited

Bihar Non-Government Teachers Training College Ordinances. 33A(1)(a), s. 33A(1)(b), s. 40, s. 41, s. 51A, s. 52A

Subjects

Minority institutionArticle 30AffiliationGovernment aidConstitutional rightsArbitrarinessCost awardEducation law

Judgment

THE MANAGING BOARD OF Tr-li:J MILLI TALIMI
MISSION, BIHAR, RANCHI & ORS.

v.
THE STATE OF BIHAR & ORS.
B
August 14, · 1984

[S. lvlURTAZA :"AZAL ALI, A. VARAOARAJAN AND SABYASACfU
MUKHARJI, JJ.) '·

c Right o/ 111i11ority educatio11al institution-Right to get affiliation fronz the
Universities-Whether the right to affiliatiorz or to obtain aid fro1n the Governrnent
is a fu11dan1ental right so as to violate Article 30-Whether the refusal to give
affiliation by the statutory authorities in the instant case without just and sufficient
cause an1ounts to violation of Article 30 of the Constitution or sin1ply an arbitrary
and illegal aclion-Supreine Court can award cosfs against a State for disobedience
of the orders of the Court to produce doc1unents called for and for failure to perform
D constitutional duties by institutions.

The appellant· Institution wa:; started as a Teachers Training College under
a So.:iety which was csta1.. hshed as far back as l 972, though the college ilself was
established and started in July 1977. On 22.9.1977 the institution made an

E
applicatil'.'ln to the Government for.grant of afFliation or recognition of.the same
in response to which a most extraordinary order was passed by the Government
directing the University for refusing affiliation on the strange ground that all
.
proposals for affiliation by the non-Government Teachers Training Colleges be
rejected and that no student be allowed to aprear as a private candidate. How-
ever, since the above decision was not applicable to minority institutions which
was reiterateJ hy a latter Ordinance called Bihar non-Government Teachers
Training College Ordinance on June 5, 1978, it was incumbent on the institution
F to prove that il was a minority institution before it could be granted affiliation.
On 24.2.1978 the appellan.s filed an application before the Ranchi University for '
grant of affil;ation. On June 15, 1978, the Government wrote to the Ranchi
University for inspection of the aDpellants college. On 6,2.1980, Joint Secretary
to the Government of Bihar sent letter to the Ranchi University and the Deputy
Commissioner, Ranchi for inspection of the appellants' college. Although the
institution applied for affiliation in 1978 and claimed to be a minority institution
G which was never disputed at any point of time the Government took three years
to take a decision about affiliation of the appellants' college. On 5.3.1980, the
University Authorities inspected the appellants' college and recommended its
affiliation which was followed by a report by the District Development Officer,
Ranchi on 30.6.1930 recommending affiliation. But, despite these facts no finaJ
decision was taken by the Governm:ent as a result of which l the appellants had to
move the 1-Iigh C'Jurt far d:recting th'! Government to grant affiliation. On the
H liigh Court's direction to the Government •to 'decide (recognition and affialltioD
MIL! TALIMI MISSION V. BIHAR 411
the appellants' college \Vithin a specified time, on 3.11.1980, the Government A
granted recognition and approval for affiliation for three sessions only, Le.,
1977-78, 1978-79 and .979-80. On 10.11.1980, the University wrote to the
Government recommending further grant of affiliation to the appellants' college.
On 22.11.1980 the appellants npplied for grant of permanent affiliation. But,
somehow or tne other, on 27.11. I 980 for undisclosed reasons, the Government
passed a strange order cancelling the recognition and approval for affiliation
granted to the appellants' college vide its letter dated 3.11.1980. This order was B
. challenged before. the Righ Court which quashed the san1e on 18.5.1981. There-
after, on ~7.8.1981 the State of Bihar filled a Special Leave Petition before the
Suprem:: Court which was dismissed on 30.11.1981. However, on 7.9.l98J, three
minority colleges, alongwith the appellants' college, were grnntcd recognition and
affiliation by the Government by virtue of the High Court's ord_ers .

.•
The appellants again \vrote to the High Court to direct the State Governn1ent c
to dispose of the applicution of the ar pellanis for re1 rr Prent 1ecc gr.if er filed by
them on 22.11.1980. On 16.9.198 ',the Education Commission<:r, Bihar again made
a recommendation. This recommendation \Vas made after inspection by the Educa_
tional Comm'issioncr In the presence of the local authorities as also the University
authoritie~ and after coming to a conclusion that the instiiution was a minority
inStitution. Despite this, since no action was taken by the Government the
D
appellants were compe1ied to file another Writ Petition in the 1-ligh Court on
3.5.1983 with a prayer to allow. the students of the appellants' collebe to appear
at· thiUniversity Examination, but the Writ Petition was disn1issed by the High
Court in /im1'ne. Hence, the appeal by Special Leave of this Court

Allowin~ the appoal, the Court
'
HELD : (Per majority)

Per Fazal Ali. J

l :1. Although Article 30 of the Constitution is not included in Part Ill
of the Indian Constitution which guarantees certain fundamental rights, yet the
Supreme Co1Jrt startiOg from the Kera/a Education Bill's case, which is the locus
F
classicus on the roint in issue, rh ht up to the case of The Ahmedabad St. Xaviers
Collet:e Society & Anr. etc. v. State of Gujarat and Anr. and ending with All
Saints High School, Hyderabad & Ors. v. Govenunent of Andhra Pradesh & Ors.
has clearly recognised that running of minority institutions is also as fundamental
and important as the rig1ts conferred on the oth'!r citizen;_ of the country, with
, the only difference that the rights contained in Article 30 have as indepenJent

... sphere' of their own. The freedoms guaranteed by Article 30 are also elevated to
the status of a full-fledged fundamental right within the field in which they
'operate. In other words, 1:1ny State action which in any way destroys, curbs or
G

interferes with such rights would be violative of Art cle 30. [414 G-H; 415 A-B]

1;2. Technically speaking, the right of affiliation or aid from the
a·overnment is not a fundamental right so as to vioiate Article 30, but the refusal
to give aid or affiliation by the statutory authc.rities without just and sufficient
groundS amounts to violation of the fundamental freedoms enshrined in Articla
)0 of the Constitq,tjon. If the Gov~rnment whhholds givin~ aid or a Univera 1ty tj 't
I·
412 SUPREME COURT REPORTS [1985] l S.c.R.
A refuses to grant affiliation, the direct consequence would be to destroy the very
existence of the insti1ution itself because there may be a number of minority
institutions which may not exist without the Govcrn1ncnl aid and a large number
of students admitted to these institutions, in the absence of affiliation, will be
deprived of acquiring higher acad.Jmic status which will not ooly be a loss to the
institution but a loss to the nation itself. It is for this purpose that Article 30
was inserted in the Constitution. [415 G-H; 416 A]
B
Kera/a Education Bill's Case [ 1959] SCR 995 ; The Ahn1edabad St
Xaviers College Society & Anr. etc. v, State n/Gujarat & Anr. fl975J 1SCR173;
and All Saints Jfigh Schoof. Hyderabad & Ors. v. Government of Andhra Pradesh
& Ors. ( 1980) 2 SCC 178 referred to.

c 1:3. On a careful and detailed review of these cases the following
position en1erges : ''•
(1) that while Art. 30 undoubtedly seeks to preserve the religious free-
dom, autonomy and its individuality ; there is no fundamental right under which
an institution can claim either aid or affiliation as a matter of right. It is permis-
sible for the State of the University, as the case may be, to lay down reasonable
D conditions to maintain the excellence of standard of education but in the garb of
doing so, ref'.lsal to grant affiliation cannot be made a ruse Or pre•ext for destroy..
ing the individuality and personality of the said institution. If this is done, then
apart from being wholly arbitrary and unreasonable it would arrount to a clear
infraction of the provisions of Art. 30 because what cannot bed one directly is
done indirectly. [420 C-E]

E (2) While the State or a University has got an absolute right to insist
on certain courses of study to be followed by institutions before they could be
considered for affiliation but these conditions should not in any way take away
the freedom of management or admini<..tration of the institution so as to reduce
it to a s;i,tellite nf the University or the State. This is impermissible because such
a course of action directly violate Art. 30 of the Constitution. [420 F-GJ

F (3) While imposing conditions b;!fore granting affiliation, as indicated
above, the State or the University cannot kill or annihilate the individuality or
personality of the institution in question by insisting on following a particular
kind of syllabus or a course of study which may be directly opposed to the aims.
objects and ideals sought to be achieved by the institutions. [420 fl l

(4) There is a very thin line of distinction between withholding of
affiliation for a particular purpose on extraneous grounds so as to subject the
G institution to rigorous orders, edicts or resolutions which may run counter to the
dominant purpose for which the institution has been founded, and insisting on
genuine and reasoable conditions to -be imposed in the larger interest of
education. [421 A-Bl

While affiliation itself may not be a fundamental right but refusal of
affiliation on terms and conditions or situations which practically denies the pro-
gress and autonomy of the institutio11 is impermissible as beins violative of Art.
ff 30 of the Constitution. ( 421 Cl
I

M!LI tALIMI MISSION v. BIHAR 413

2:1. In the instant case, the State has refused to grant affiliation on A
purely illusory grounds which do not exist and failed to consider the recommend-
ation of the Education Co1nn1issioner which was made after full in'ipection for
grant of affiliation. In other words, the affiliation was refused without giving
any sufficient reasons and such a refusal contravenes the provisions of Art. 30 of
the Constitution. [426 G]
2:2. The belated attempt through a subsequent affidavit filed by the State B
Government to show that there were certain defects in the Institution, in view of
the non-production of the n1ost important and decisive material, is nothing but
an after-thought. [425 Fl
2:~. The State Governmcnt 1s assurance to grant nffili1tion to t'1e
3.ppe\lants' college on fulfilling cerlain conditions is nothing l:ut a pretext or a
smokescreen to cloud the real issue. 1 he Government did not mean bus;ness by
producing a report on which Ex. J v.as based, \\hich has been. deliberately sup~
c
pressed despite the Court's order to produce t11e same. Therefore, an adverse
inference has to be drawn against the State Government to the effect tfiat if the
materials on which the report was based had been produced it would have
exploded the case of the Government and disclo>e<l the real state of affairs namely
that the appellants institute does fulfil a\l the co1ditions impos,ed by tll'.! St'.tte.
[4'5 G-H; 426 Al D
3. Norn1ally the Supreme Court does not gr<1nt cost in case of refusal
0 f affiliation to
institutions but having regard to the manner in which the St1te
Government has behaved and exhibited its relu.::tance to perform a constitutional
duty and has also tried to disobey the Court's order for production of certain
documents the instant case is a flt case for imposi11g a heavy cost on the State,
apart from the directions to the State for granting affiliation to the appellant's E
college and to allow its students of the 1980·81, 1981·8~ and 1982-83 sessions to
sit in the examination. [426 F-G]
Per Sabyasaclri Mukharji, J. (Concurring)
Jn the background or the facts and circumstances of this case, the Govern-
ment action is not granting affiliation to the arpellants' college is action based
w ithout reason and is an act of arbitrariness. [428 FJ F
(Per contra)

1. Article 30 of the Constitution was engrafted for the high and noble
purpose of safeguarding and protecting the rights of minorities to est<,blish and
administer educational institutious. In this case, in not granting affiliation to
the appellants' college there was no discrimiQ.ation against any educational insti-
tution on the ground that it was llnder the management of any minority whether G
based on religion or language. It was inaction or an act of arbitrariness on the
part of the authorities. Froffi such unr~'a~onable _ and arbitrary actions or
inactions, institutions, educational or otherwise, belonging both to the majority
or minority communities often suffer and in appropriate cases, Court should
grant relief without aid or recourse to the articles of the Constitution protecting
the freedom and rights of the minorities. Jn this case there is no evidence or
ev8n any serious allegation that affiliation was being denied to the appellants
institution on the ~ound that it v.,,-as a minorit;v institutjon. [428 G-H; 429 A-Bl .H
414 SUPREME COURT REPORTS (1984) 3 S.C.R
A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 404 of
1984.

Appecl by Special leave from the JudBmcnt and Order· dated
the 11th July, 1983 of the Patna High Court in C.W.J.C. No. 623 of
1983.
B
Dr. L.M. Singhvi, Mrs. Lakshmi Kant Pande & S.K. Sinha,
for the Appellant.

D. Govcrdlzan & B.B. Singh for the Respondents.

c The following Judgments were delivered

FAZAL Au, J. The most difficult and delicate task of our
founding fathers while framing the Constitution of the largest demo-
cracy in the world was to protect, preserve and safeguard tbe in-
terests of the minoriti~s and the backward classes in order to retain
D the secular nature of our Constitution. Perhaps they feared that a
time may come when the overwhelming majority may overshadow
or dominate, devour of destroy the educational, cultural and social
rights of the minorities and wreck their individuality and personality.
It was this central theme that runs through the enti•e Constitution
which has provided sufficient safeguards to protect and preserve the
E minority educational institutions which is the most important and
voca 1 medium through which this section of the society can speak
and seek to redress its grievances.
•
In this appeal we are merely concerned with the rights and
obligations of the State for the protection of minority institutions
F and for this avowed purpose Art. 30 was enshrined in our Constitu-
tion so that they may not suffer from a sense of inferiority complex
and are able to through themselves into the main stream of the
economic and political life of the country so as to march forward
with the temper of the times and the needs of the nation Although,
Art. 30 is not included in Part II of the Indian Constitution, which
G guarantee certain fundamental rights, yet this Court starting from the
Kera/a Education Eill's( 1 l case, which is the locus c/assicus on the
point in issue, right up to the case of The Ahmedabad St. Xaviers
College Society & Anr. etc. v. State of Gujm·at & Anr (2) and ending·
with All Sainis High Sc/;oo/, Jlydualad & Ors. v. G'oHrnm•nt ?f

( 1) [1159] SCR 995.
ff. (2) [1975] l SCR 173.
'
MILi TALIMI MISSION v. BIHAR (Fazal Ali, J.) 415

Andhra Pradesh & Ors.( 1) has clearly recognised that running of A
minority institutions is also as fundemental and important as the
rights conferred on the other citizens of the country. Perhaps the
only difference is that the rights contained in Art. :o have an mde-
pendent sphere of their own. A close scrutiny and study of the
various decisions of this Court reveal that the freedoms guaranteed
by Art. 30 are also elevated to the status of a full-fledged funda- B
mental righ within the field in which they operate. In other words,
any State action which in ahy way destroys, curbs or interferes with
such rights would be violative of Art. 30.

- In the instant case we are mainly concerned with the rights,
priviledges and status of minority institutions. In dwelling on these
matters four important aspects or facets have been considered by this
c

Court, viz. :

(I) right of the minority institutions to get aid from the
Government,

(2) right to get affiliation from the Universities,

(3) nature and extent of the autonomy which [such institutions
enjoy in their internal discipline and administration, and
E
(4) right to be protected from undue or repeated interference
in the independence of the institutions in the garb of
achieving excellence in the standard of education.

The first question to be determined is whether the minority
institutions have a fundamental right to get aid from the Govern- F
ment or affiliation from the Universities as a matter of course. In
' other words, the questi_on posed is whether the right to affiliation or
to not so as to violate Art. 30. Technically skeaking the answer to
this question is in the negatives but it must be stressed that the
refusal to give aid or affiliation by the statutory authorities without
just and sufficient grounds amounts to violation of the fundamental
G
freedoms enshrined in Art. 30 of the Constitution. If the Govern-
ment withholds giving aid or a university refuses to grant affiliation,
the direct consequence would be to destroy the very existence of the
Institution itself because there may be a number of minority institu-
tions which may not exist without the Govemment aid and a large

(I) [198oJ 2 sec 178.
• ff
416 SUPREME COURT REPORTS [1985] J S.C.R.

A number of students admitted to these institutions, in the absence of
affiliation, will be deprived of acquiring higher academic status which
will not only be a loss to the institution but a loss to the nation itself.
It is for this purpose that Art, 30 wa~ inserted in the Constitution.

Tn the presefit case, we 'would like to confine our judgment
B only to the question of refusal of affiliation to a minority institution
by the State and the University. To begin with, in Kera/a Education
Bill's case (supra), Das, C.J .. speaking for the majority (Venkata-

c
rama Aiyar, J. having given his separate judgment) observed thus;

"The minorities evidently desire that education should be im-
,-
parted to the children of their community in an atmosphere
congenial to the growth of their culture. Our Constitution
makers recognised the ·validity of their claim and to allay their
fears conferred on them the fundamental rights referred to
above ... They also desire that scholars of their educational
institutions should go out in the world well and sufficiently
equipped with the qualifications necessary for a useful career in
life. But ............ the scholars of unrecognised schools are not
permitted to avail themselves of the opportunities for higher
education in the University and are not eli~ible for entering the
public services. Without recognition, therefore, the educational
E institutions established or to be established by the minority
communities cannot fulfil the real objects of their choice and
•
the rights under Art. 30 (1) cannot be effectively exercised. The
right to establish educational institutions of their choice must,
therefore, mean the right to establish real institutions which will
effectively serve the nee0s of their community and the scholars
F who resort to their educational institutions. There is, no doubt,
no such thing as fundamtntal right to recognition by the State but
to deny rtcognition to the educational institutions except upon
terms tantamount to the surrmder of their constitutional right of
administration of the educational institutions of their choice is in
truth and in effect to deprive them of their rights under Art. 30(1).
We repeat that the legislative power is subject to the funda-
G
mental rights and the legislature cannot indirectly take away
or abridge the fundamental rights which it could not do directly
and yet that will he the result if the said Bill containing any
offending clause becomes law."
(Emphasis ours)

H
•
The observations and the ratio of this case were fully affirme\I
MILi TALIMI MISSION v. BIHAR (Fazal Ali, J.) 417

and expounded by this Court in a 9-Judge Bench decision in St. A
Xaviers College case (supra) where all the Judges speaking in the same
strain held that withholding of aid or affiliation in such a manner as
to destroy or etface the autonomy and individuality of a minority
institution violates Art. 30. In this connection, the Judges by separate
judge~ents made the following observations :-
B
"The consistent view of this Court has been that there is no
fundamental right of a minority institution to affiliation. An
explanation has been put upon that statement of law. It is
that affiliation must be a real and meaningful exercise for
J minority institutions in the matter of imparting secular education. c
"Any law which provides for affiliation on terms which will
involve abridgement of the right of linguistic and religious
min0rities to administer and 'establish educational institutions.
of their choice will offend Article 30 (I). The educational
institutions set up by minorities ~ill be robbed of their utility if
boys and girls cannot be trained in such institutions for Univer- D
sity degrees. Minorities will virtually lose their right to equip
their children for ordinary careers if affiliation be on terms
which would make them surrender and lose their rights to
establish and administer educational institutions of their choice
under Article 30 ............ The establishment of a minority insti·
tution is not only ineffective but also unreal unless such institu- E:
tion is affiliated to a University for the purpose of conferment
of degrees on students.

Affiliation of minority institutions is intended to ensure the F
growth and excellence of their children and other students in
the academic field. Affiliation mainly pertains to the academic
and educational character of the institution."
(Ray, C.J.)

"We agree with the judgment of Hori'ble the Chief Justice
juit pronounced and with his conclusions that ss. 40,4!,33A(l) G
(a), 33A(l)(b), 51A and 52A of the Act violate the fundamental
rights of minorities and cannot, therefore, apply to the institu-
tions established and administered by them .

.. ·....
The riiiht under Art. 30 cannot be exercised in V!ICU!>. Nor H
418 SUPREME COURT REPORTS [1984] 1 s.c.R.
A would it be right to refer to affiliation or recognition as pri-
viledges granted by the State. In a democratic system of
Government with emphasis on education and enlightenment
of its citizens, there must be elements .which give protection to
them. The meaningful exercise of the right under Art. 30(1)
would and must necessarily involve recognition of the secular
B education imp~rted by the minority institutions without which
the right will be a mere husk. This Court has so far consis-
tently struck down all attempts to make affiliation or recogni-
tion on terms tentamount to surrender of its rights under
Art. 30(1) as abridging or taking away those rights. Again as
c without affiliation there can be no meaningful exercise of the
right under Art. 30(1), the affiliatlon to be given should be
consistent with that rtgbt. nor can it indirectly try to achieve
what it cannot directly do.''
(Jaganmohan Reddy, J.)

D I am of the view that it is permissible for the State to
prescribe reasonable regulations like the one ·to which I have
referred earlier and make it a condition precedent to the
according of recognition or affiliation to a minority institution.
It is not, however, permissible to prescribe conditions for
recognition or affiliation which have the effect of impairing the
E right of the minority to establish and administer their educa-
tional institutions. Affiliation and recognition are, no doubt,
not mentioned in article 30)), the position all the same remains
that refusal to recognize or affiliate minority institutions unless
they (the minorities) surrender the right to administer those
institutions would have the effect of rendering the right guaran-
F
teed by article 30(1) io be whotly illusory. and indeed a testing
illusion.

What is said above with regard to aid or recognition
applies equally to affiliation of a college to the University
G
because but for such affiliation the student will not be able to
obtain a University degree which is recognized as a passport to
several professions and future employment in Public Service.

H Hthe conversion of affiliated colleges of t)le minoritie~
MILi TALIMI MISSION v. BIHAR (Faza/ Ali, J.) 419

into constituent colleges contravenes article 30(1), the fact that A
such conversion is in pursuance of a scheme which permits the.
grant of autonomy to an individual college would not prevent
the striking down of the impugned provision.''
(Emphasis ours)
(Khanna, J.) B

"Over the year, this Court has held that without recogni-
tion or affiliation, there can be no real or meaningful exercise
of the right to establish and ·administer educational institutior,s
I under Article 30(1).
.•
c

The heart of the matter is that no edu.cational institution
established by a religious or linguistic minority can claim total
immunity from regulations by the legislature or the university
if it wants affiliation or recognition ; but the character of ihe D
permissible regulations must depend upon their purpose. As '
we said, such regulations will be permissible if they are relevant
to the purpose of securing or promoting the object of recogni-
tion or affiliation."
(Mathew, J.)
E
"It is true that, if the object of an enactment is to compel
• a minority Institution, even indirectly, to give up the exercise
of its fundamental rights, the provisions which have this effect
will be void or inoperative against the minority Institution.
The price of affiliation cannot be a total abandonment of the
right to establish [and administer a minority Institution con- F
ferred by Art. 30(1) of the Constitution. This aspect of the
' matter, therefore, raises the question whether any of the
provisions of the Act are intended to have that effect upon a
minority Institution. Even if that ;ntention is not manifest
from the express terms of statutory provisions, the provisions
may be vitiated if that is their necessary consequence or effect."
G
(Beg, J.)

"However, in case of an affiliating un·.versity affiliation
cannot be denied to a minority institution on the sole ground
that it is managed by a minority whether based on religipn or
language or on arbitrary or irrational basis. Such a denial
would be violative of Arts. 14 and 15(1) and will be struck H
SUPREME COURT REPORTS [19s5j I s.c.it.
A dov.n by courts. Again, Art. 13(2) prohibits the State from
taking away or abridging the right under Art. 30(1). Since the
State cannot directly take away or abridge a right conferred
under Art. 30(1), the State cannot also indirectly take away or
abridge that right by subjecting the grant affiliation to condi-
tions which would ent~il the forbidden result."
B
(Diwedi, J.J

On a careful and detailed review of the cases cited ~bove, the
following position emerges ;
•,
c (I) that while Art. 30 undoubtedly seeks to preserve the
religious freedom, autonomy and its individuality ; there
is no fundamental right under which an institution can
claim either aid or affiliation as a matter of right. It is
permissible for the State or the University, as the case may
be, to lay down reasonable conditions to maintain the
D excellence of standard of education but in the garb of
doing so, refusal to grant affiliation cannot be made a
ruse or pretext for destroying the individuality and per-
sonality of the said institution. If this is done, then apart
from being wholly arbitrary and unreasonable it would
amount to a clear infraction of the provisions of Art, 30
because what cannot be done directly is done indirectly.
•
(2) While the State or a University has got an absolute right
to insist on certain courses of study to be followed by
institutions before they could be considered for affiliation
F but these conditions should not in any way take away the
freedom of management or adminisfration of the institu-
tion so as to reduce it to a satellite of the University or
the State. This is wholly impermissible because such a
course of action directly violates Art. 30 of the Constitu-
tion.
G
(3) While imposing conditions before granting affiliation, as
indicated above, the State or the University cannot kill or
annihilate the individuality or personality of the institution
in question by insisting on following a particular kind of
syllabus or a course of study which may be directly op-
posed to the aims, objects and ideals sought to be achieved
H by the institutions.
MIL! TALIMI M1ss10N v. BIHAR (Fazal Ali, J.) 42i
(4) There is a very thin line of distinction between withhold- A
ing of affiliation for a particular purpose on extraneOU$
grounds so as to subject the institution to rigorous orders,
edicts or resolutions which may run counter to the domi-
nant purpose for which the institution has been founded,
and insisting on genuine and reasonable conditions to be
imposed in the larger interest of education. B

Thus, all the authorities mentioned above clearly laid down
that (while affiliation itself may not be a fundamental right but
refusal of affiliation on terms and conditions or situations which
practically denies the progress and autonomy of the institution is c
impermissible as being violative of Art. 30 of the Constitution.) It
is not neces~ary for us to dwell on the other aspects of the matter
because we are not concerned with them in this particular case.

We now proceed to discuss the facts of the present case which, D
we are co1;strained to observe, reveal a most distressing and dis-
turbing attitude exhibited by the I lniversity and the Government of
Bihar as well. In fact, the reason and the motive for refusing
affiliation to the Milli Talimi Mission Bihar, Ranchi are so obvious
and manifest that even the Standing Counsel for the State of Bihar;
despite his best efforts, found himself unable to support the action E
of the University. We are indeed amaged how the respondents
have behaved in filing their affidavits in the highest court of the
land and have violated the express orders of this Court with impu-
nity. In order to buttress what we have said, it may be necessary
to give a short history of the Institution in question.
F

The Institution in dispute, Milli Talimi Mission Bihar, Ranchi,
'
was started as a Teachers Training College under a Society which
was established as for back as 1972, though the College itself was
established and started in July 1977. On 22.9.1977 the Institution
made an application to the Government for grant of affiliation or
recognition of the same in response to which a most extraordinary G
order was pas£ed by the Government di,recting the Universities for
refusing affiliation on the strange ground that all proposals for affilia-
tion by the Non-Government Teachers Training Colleges be rejected
and that no student be allowed to appear as a private candidate.
However, in the case of minority institutions the State Government
in sub-para (3) of paragraph (I) stated thus : H
422 SUPREME COURT REPORTS [198S] 1 S.C.R.

A "(3) The above decision as described vide decision nos. (1)
and (2) above shall not be -applicable in cases of colleges run
by the minority community. Government decision in this
regard to their cases shall be intimated separately."

In view of the above, it was incumbent on an institution to
B prove that it was a minority institution before it could be granted
affiliation. Thereafter, on 24. 2.1978 the appellants filed an applica-
tion before the' Ranchi University for grant of affiliation. This was
followed by issue of Bihar non-Government Teache1 s Training
College Ordinance on June 5, 1978. · On June 15, 1978 the Govern-
ment wrote to the Ranchi University for inspection of the appellant's
c College. On 13.8.1979 the Government notified that the decision "
regarding affiliation would be governed by its circular dated 1.10.1973
(Annexure B), which laid down certain conditions for grant of
affiliation, and that with regard to the minority institutions a final
decision would be taken later. Thereafter, a writ was filed in the
D Patna High Court where it was decided that section 2 of the
Ordinance, referred to above, would not apply to minority training
colleges. On 6.2.1980 Joint Secretary to the Government of Bihar
sent letters to the Ranchi University and the Deputy Commissioner,
Ranchi for inspection of the appellants' college. It would appear
that although the Institution applied for affiliatatin in 1977 and
E claimed to be a minority fostitution, which was never disputed at
any point of time, yet it took three years for the Government to
take a decision about affiliation of the appellant's college.

On 5. 3.1980, the University authorities inspected the appellants'
college and recommended its affiliation which was followed by a
F
report by the District Development Officer, Ranchi on 30.6.1980
recommending affiliation. But, despite these facts no final decision
was taken by the Government as a result of which the appellants
had to move the High Court again for directing the Government to
grant affiliation and the High Court gave a direction to the Govern-
ment to decide recognition and affiliation of the appellants' college
G within a specified time. On 3.11.80, the Government granted recog-
nition and approval for affiliation for three sessions only, i.e., 1977-
78, 1978-79 and 1979-80. \

On 10.11.1980, the University wrote to the Government
recommending grant of affiliation to the appellants' college. On
22. I 1.1980, the appellants applied for grant of permament affiliation.
But, somehow or the other, ~on 27.11.80, for undisclosed reasons,
Mlll TALJMI MI~SJON v. BlHAR (razal Ali, J.) 423

the Government passed a strange order cancelling the recognition A
and approval for affiliation granted to the appellants' college vide
its letter dated 3.11.80. This order was challenged before the High
Court which quashed the same on 18.5.81.

ThereafJer, on 17.8.81 the State of Bihar filed a special leave
B
petition before this Court which was dismissed on 30.11.81. How-
ever, on 7. 9.8 l three minority colleges, alongwith the appellants'
college, were granted recognition and affiliation by the Government.

T Ultimately, the High Court had to be moved again which
.)
directed the State Government to '.dispose of the application of the c
appellants for permanent recognition which was filed by them on
21.11. 80. On 16.9.82, the Education Commissioner, Bihar again,
made a recommendation for grant of affiliation to the appellants'
college, which may be extracted thus:

"In this connection the notings of the Joint Secretary may D
kindly be s~en at pages 62-64. Also the Judgment of the High
Court be seen at page 137 according to which the restrictions
of the Ordinance is not applicable to Minorities Institutions. In
addition to this, this institution has also been got inspected in
which the local authorities were present. There is unanimous E
recommendation that this training institution be affiliated. The
recommendation ot the University may kindly be seen at p. 150.
Accordingly, this·college be temporarily ~ranted recognition and
affiliation for the sessions 1980-81 to 1982-83 for the present."

A perusal of the above recommendation. shows that the Institu· F
.tion in question was inspected in the presence of the local authorities
as also the University authorities who unanimously recommended that
the Institution was a minority institution' and should be granted affilia-
tion and recognition at least for the session 1980-81 to 1982-83
Despite this, nothing tangible seems to have happened which com-·
pelled the appellents to file another writ petition in the High Court on
3.5.1983 for examination of the students of the appellants' college who G
had passed the 1982-83 session. But the writ [petition was dismissed
by the High Court in limine. Hence, this appeal by special leave to
this Court.

After leave was granted we directed the respondents to produce_
Ex. J. (Education Commissioner's recommendation) and the data on H
424 SUPREME COURT REPORTS (1985] I s.c.R.

A the basis of which the concerned authorities had recommended that
affiliation shou1d be granted to the appellants c liege but till today no
attempt has been made to produce those documents and the learned
counsel for the State of Bihar was unable to give any explanation for
this most extraordinary action on the part of the State Government.

B The State has filed an affidavit raising all sorts of pleas which
could not be supported by the counsel for the State. It would appear
that practically no reasons were given by the State as to why despite
the recommendations of several athorities, which were made after a
full and proper inspection, the affiliation was refused. In paragraph 7
of one of the affidavits filed by the respondents it is mentioned that •
c before grant of affiliation, the following conditions must be fulfilled by
an institution :-

(a) that there must be full-time qualified Principal and Lecturers
in proportion of 1 : 15 ;
D (b) the institution must have a recognised High School attached
to it;

(c) it must have sufficient land of its own to provide adequate
accommodation for classrooms, hostels, play-grounds, resi-
dences of lecturers, gymnasium, canteen, etc., and the
E college must run during the day time like the schools ;

(d) the admission registers, attendance registers to be properly
maintained ;

(e) that in no case it will charge capitation fee or any tuition
F
fee from students.

(f) that there should be residential accommodation for at least
one-fourth of the staff.

(g) that hostel accommodation to at least one-fifth of the
G
students is provided ;

(h) that there should be a stable source of income to run the
college."

It is manifest that if these conditions were fulfilled then affiliation
could be granted as a matter of course on the findings . and decision
taken by the Government itself. Io reply to the affidavit filed by the
H
MILI TAUMI MISSION v. BIHAR (Faza/ Ali, J.) 425
appellants, the defence of the State was that after inspection of the A
Tnstitution it was found by a team ~f Inspectors that the Institute
suffered from the following infirmities :-

"(i) There were no full-time qualified Principal or Lecturers.

(ii) That there was no recognised school attached to it. B

(iii) The college· runs during evening hours which makes im-
practicable for practice classes il,l schools which run during
day time.

(iv) The college had no building of its own. c
{

(v) The library and laboratory were not properly main-
tained."
•
It is rather strange that while a previous expert Committee after
inspecting the said Institute found it in order but subsequently the D
Government without referring to the data submitted by the expert
Committee, which was the basis of Ex. J. seems to have suddenly given
, a gobye to the same and taken the defence that in view of the defects
and non-fulfilment of the conditions it was not possible to grant affilia-
tion without even mentioning in what manner and to what extent the
E
recommendation of Education Commissioner and the materials on
which it was based was wrong and why the five new conditions were
sought to be imposed.

Despite repeated orders of this Court to the respondents to
produce the report of' the Education Commissioner and the details
F
thereof, the same was not done and a belated attempt was made to
show that there were certain defects in the Institution. In view of the
non-product'on of the most important and decisive material we are
unable to accept the subsequent affidavit of the respondents which is
nothing but an afterthought.

The State Government in its counter-affidavit has stated that it G
was prepared to grant affiliation to the appellants' college .on fulfilling
certain conditions . . We are however, satisfied that this is nothing but
a pre.ext or a smokescreen to cloud the real issue. Indeed, if the
Government meant business it should have the courage to produce
the report on which Ex. J. was based, which has been deliberately
suppressed despite our orders to produce the same. We are, there-
fore, compelled to draw an adverse inference a?ainst the State H
426 SUPREME COURT REPORTS [1985j 1 s.c.R..
A Government to the effect that if the materials on which the report was
based had been produced it would have exploded the case of the
Government and disclosed the real state of affairs, viz., that the
appellants Institute does fulfil all the conditions imposed by the
State.
B
Thus, the position is that the State has refused to grant affilia-
tion on purely illusory grounds which do not exist and failed to
consider the recommendation of the Education Commissioner which
was made after full inspection for grant of affilhtion. In other words,
the affiliation was refused withoui giving any sufficient reasons and
c such a refusal contravenes the provisions of Art. 30 of the Consti-
tution.
\

For the reasons given above, we find that this is a fit case where
this Court should step in to strike down the Government actidb
which is violative of Art. 30 of the Constitution and which does not
D fall within the guidelines indicated in the various authorities cited in
our judgment. The heart of the matter is that as the Government
did not like the recommendation of the Education Cammissioner and
was not prepared to grant affiliation for undisclosed reasons, the act
of the Government was a colourable exercise of jurisdiction which ·
deprived the appellants' Institution of its constitutional rights.
E
Normally, this Court does not grant costs in such cases but
having regard to the manner in which the State Government has
behaved and exhibited its reluctance to perform a constitutional duty
and has also tried to disobey our orders for production of certain
F
documents, we must impose a heavy cost on ·the State.

We, therefore, allow this appeal with costs quantified at
Rs. 5,000 (Rupees five thousand only) to be paid to the appellants
within three months from' today, set aside the Order of the High
Court dismissing the writ petition in /imine as also the Order of the
Government refusing affiliation and peremptorily direct the Govern-
G ment to grant affiliation to the appellants' college and allow its
students of the 1980·81. 1981-82 and 1982-83 sessions to sit in the
examination, both written and practical, as the case may be. We
would, however, like to add th1t if there are cogent reasons and
sufficient material before the State or the University to show that the
appellants' Institute has not fulfilled the conditions which may be
imposed hereafter, it is open to it to withdraw the affiliation provided
H the conditions imposed are reasonable and justifiable.
MILi TALIMI MISSION v. BIHAR (Mukharji, J.) 427

SABYASACHI MUKHARJI, J. I agree with the order proposed by
A
my learned brother Justice Fazal Ali. For the purpose of disposing
of this appeal, it is sufficient to state that on the 5th March, 1980 tbe
university authorities inspected the appellants' college and recom-
mended its affiliation which was followed by a report by the Govern-
ment on 30 June. 198) recommending affiliation. But despite these,
no final decision was taken by.the Government as a result of which B
the appellants had to move the High Court for directing the Govern-
ment to decide recognition and affiliation of appellants' college
within a specified time. On 3rd November, 1980 the Government
granted recognition and approval for affiliation for three sessions
namely 1977-78, 1S78-79 and 1979-80. On the 10th November,
1980, the University wrote to the Government recommending grant c
of affiliation. On 22nd November, 1980, the appellants applied for
grant of permanent affiliation. But the Government on 27th No-
vember, 1980 passed an order cancelling the recognition and appro-
val for affiliation granted to the appellants' college vide its letter
dated 3rd November, 1980. This order was challenged before the
D
High Court. The High Court quashed the said order dated 27th
November, 19801 on 18th May, 1981. On the 17th August, 1981,
the State of Bihar filed a special leave petition before this Court
which was dismissed on 30th November, 1981. The High Court was
moved again for directing the State Go•1ernment to dispose of the
application of the appellants for permanent rec0gnition which was E
filed by them on 22nd November, 1980. On the 16th September,
1982 the Education Commissioner Bihar again made a recommenda-
tion for grant of affiliation to the appellants' college. the extract
from which has been set out in the judgment of my learned brother.
In the recommendation, the edu~ation Commissioner recommended
that the college be temporarily granted recongnition and affiliation F
for the sessions 1981-82 and 1982·83 for the present. Another writ
petition thereafter was filed and nothing happened for the e\amina-
tion of the students of the appellants' college who had passed the
1982-83 session. But this writ petition was ~dismissed by the High
Court in limine. This appeal arisses out of the said order.
G
There were certain data which were gathered by the expert
committee and were the basis of Ex. J. There was a previous order
for the production of Ex. J. That has not been produced and no
explanation has been given. I agree with my learned . brother that
from the affidavits it is clear that practically no reasons have been
given by the State as to why despite the recommendations of several
a11thqrities which were npde after a full and proper inspec,tions, the H
428 SUPREME COURT REPORTS (1985] l S.C.R.
A affiliation was refused. The government had stated that if certain
conditions were fulfilled then there was no objection to the granting
of affiliation .. It is not clear from the records produced and also
from the inferences drawn from the non-production of the records
i.e., from Ex. J. that these :·conditions have not been substantially
fulfillerl. It appears, therefore, and I agree respectfully with my
B learned brother that no cogent or proper reasons have been placed
before us to indicate why appellants have not been placed before us
to indicate why appellants have not been granted affiliation and why
the recommendations and [reasons of the Education Commissioner
for grant of affiliation to this college were not properly considered.
c It is manifest from paragraph 7 of the affidavits filed by the
respondents that before grant of affiliation, certain conditions were
'
required to be fulfilled by the institution. These conditions have
been mentioned in the judgment of my learned brother. It further
appears from the affidavits filed by the appellants that the defence
D of the State was that five conditions were found not fulfilled after
Inspection by a team of inspectors. I agree that it is strange that
while previous Expert Commmittee after inspecting the institute
found it to be in order but subsequently the government, without
referring to the data submitted by the Expert Committee, appears
to have taken this view about non-fulfilment of certain conditions.
E No cogent materials or reliable evidence were produced before us
that there was any proper inspection and as ra fact the five alleged
defects were there. I agree that in the context of the facts of this
case and further in the context of non-production of Ex. J., the
alleged plea of non-fulfilment of certain conditions was a pretext.
In the premises, the government action in not granting affiliation in
F the background of the facts and circumstances of this case is action
ba,ed without reason and is an act of arbitrariness. On this ground
alone I agree with the order proposed by my learned brother. As I
find the action of the respondents is arbitrary and unreasonable, it
is not necessary for me to express my views on Article 30 of the
Constitutions it this case. Article 30 was engrafted for the High
G and nobel purpose of safeguarding and protecting the rights of
minorities to establish and administer t'ducational institutions. In
this case I do not find that in not granting affiliation to the appellants'
college there was any discrimination as such against any educational
institution on the ground that it was under the management of
any minority whether based on religion or language. It was inac-
tion or an act of arbitrariness on the part of the authorities. From
H such unreasonable l\nd l\rbitrary actioqs or inactio11s, iqstitutio11s
MIL! TALIMI MISSION v. BIHAR (Mukharji, J.) 429

educational or otherwise, belonging both to the majority or minority A
'i communities often suffer and in appropriate cases, courts should
grant relief without aid or recourse to the articles of the Constitution
protecting the freedom and rights of the minorities. I do not find
in this case any evidence or even any serious allegation that affilia-
tion was being denied to the appellants' institution on the ground
that it was a minority institution. B

I agree with great respect with the order proposed by my
learned brother, Fazil Ali, J.

S. R. Appeal al/owed. c