Rev. Father W. Proost And Ors. VS. The State Of Bihar & Ors.

Case Law No.1, Reporting JudgeHidayatullah

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Summary

The St. Xavier's College was established by the Jesuits of Ranchi and was affiliated to Patna University in 1944. The management of the College was in the hands of a governing body consisting of 11 members. The terms of service of the religious staff of the College were determined by the Jesuit Mission authorities and those of the lay staff, including their appointment, were determined by the governing body of the College. The object of rounding the college inter alia was "to give Catholic youth .a full course of moral and liberal education, by imparting a thorough religious instruction and by maintaining a Catholic atmosphere in the Institution". However, the college was open to non- Catholics and all non-catholic students received a course of moral science.

The petitioners in the present petition under Article 32 contended that the college was rounded by a Christian minority and claimed the right to administer it as a constitutional right guaranteed to minorities by Art. 30.

The petitioner's complaint was that the Bihar Legislature, by introducing s. 48-A in the Bihar Universities Act with effect .from March 1, 1962, deprived them of the right under Art. 30 in that Its provisions required, inter alia: that appointments, dismissals, reduction in rank, etc., of staff must be made by the Governing body on the recommendation of the University Service Commission for affiliated colleges;

in no case could the Governing body appoint a person not recommended by the Commission; the Commission had to be consulted in all disciplinary matters and any punishment imposed on a teacher only in accordance with the findings of the Commission, etc. Subsequent to the introduction of s. 48-A, in view of differences arising between the University and the college, the University withdrew the affiliation of the college on September 26, 1967 for violating the provisions of the Act and the statute of the University.

While the present petition under Art. 32 of the Constitution was pending s. 48-B was inserted into the Bihar Universities Act whereby it was provided that the Governing body of affiliated colleges established by a minority based on religion or language which .the minority had a right to administer, would be entitled to make appointments, dismissals, termination of service or reduction in rank of teachers or take other disciplinary measures subject only to the approval of the Commission and the Syndicate of the.

University. The petitioners therefore also claimed the protection of s. 48-B.

On behalf of the respondents it was conceded that the Jesuits answered the description of a minority based on religion; but it was contended that as the protection to minorities in Art. 29(1) is only a right to conserve a distinct language, script or culture of its own, the college did not qualify for the protection of Art. 30(1) because (i) it was not bounded Sup. CI/69-6 74

to conserve them and (ii) it was open to all sections of the people. The question therefore was whether the college: could only claim protection of s. 48-B of the Act read with Art. 30(1) of the Constitution if it proved. that it was furthering the rights mentioned in Art. 29(1).

HELD: The protection claimed by the petitioners clearly flowed from the words of Article 30(1).

The width of Art. 30(1) cannot be cut down by introducing in it considerations on which Art. 29(1) is based. The latter article is a general protection which is given to. minorities to, conserve their language, script or culture. The former is a special right to minorities to establish educational institutions of their choice. This choice is not limited to institutions seeking W conserve language, script or culture and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities. This is a circumstance irrelevant for the application of Art. 30(1) since no such limitation is expressed and none can be implied. The two. articles create two separate rights, although it is possible that they may meet in a given case. [80 G, H]

In re the Kerala Education Bill, 1957, [1959] S.C.R.

995, Rev. Sidhajbhai Sabhai and Ors. v. State of Bombay and Anr. [1963] 3 S.C.R. 837, 850; considered.

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Extract

Rev. Father W. Proost And Ors. VS. The State Of Bihar & Ors.

PETITIONER: REV. FATHER W. PROOST AND ORS.

Vs.

RESPONDENT: THE STATE OF BIHAR & ORS.

DATE OF JUDGMENT: 13/09/1968

BENCH: HIDAYATULLAH, M. (CJ)

SHAH, J.C.

RAMASWAMI, V.

MITTER, G.K.

GROVER, A.N.

CITATION: 1969 AIR 465 1969 SCR (2) 73

CITATOR INFO : RF 1970 SC 259 (20)

R 1970 SC2079 (10)

RF 1971 SC1737 (7)

D 1974 SC1389 (11,24,83,97,103)

RF 1975 SC1821 (23)

RF 1979 SC 52 (39)

R 1979 SC 83 (5)

RF 1980 SC1042 (2,35,81,94,108)

RF 1988 SC 305 (7)

ACT: Constitution of India, Articles 29(1) and 30(1)-Whether minority can only claim protection under Art. 30(1) in furtherance of rights under Art. 29(1).

JUDGMENT: ORIGINAL JURISDICTION: Wilt Petition No. 1 of 1968.

Petition under Art. 32 of the Constitution of India for the enforcement of the fundamental rights.

M.C. Setalvad and R. Gopalakrishnan for the petitioners.

C.K. Daphtary, Attorney-General and U.P. Singh, for respondents No. 1 and 4.

P.K. Chatterjee, for respondent No. 3. R. Gopalakrishnan, f...

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