judgement:
ivil Appeal No. 10026 of 1983.
327 From the Judgment and Order dated the 10th August, 1983 of the Orissa High Court in O. J. C. No. 1239 of 1983.
Vinoo Bhagat for the appellants.
K. Parasaran, Attorney General and R. K. Mehta for the respondents.
Bharati Anand for the respondent.
The Judgment of the Court was delivered by MADON, J.
The destiny of a nation rests with its youth.
As we shape its mind and mould its character, so do we fashion our country 's progress, prestige and prosperity.
Wordsworth truly said, "The Child is father of the Man", and Alexander Pope was equally right in saying in the first of his 'Moral Essays ' 'Epistle I to Sir Richard Temple, Lord Cobham ': "Tis Education forms the common mind, Just as the Twig is bent, the Tree 's inclin 'd." It is, therefore, essential for a country to have a proper educational system.
The general pattern of education in our country is, however, the traditional one of studying from prescribed text books, attending lectures based on such books and answering questions in examinations set from them.
The study of text books is often supplemented by reading books which are kept in school and college libraries.
These books may be on various subjects literature, history, art, science, geography, and even works of fiction.
General reading is as essential for a student as it is for any man, for it is reading which broadens the mind and widens the horizon.
It was for this reason that Bacon said in his essay, 'Of Studies ', "Reading maketh a full man", General reading is, therefore, as important as studying from prescribed text books if the students of today are to become worthy citizens of tomorrow.
The selection of these books both text books and books for general reading to be kept in school and college libraries is thus a matter of vital importance to the imparting of proper education.
Such selection must necessarily depend upon the ability and fitness for the purpose of those who are charged with that responsibility.
This question has come up for our consideration in this Appeal by Special Leave from the judgment and order of the High Court of 328 Orissa dismissing, with no order as to costs, the petition under Article 226 of the Constitution filed by the Appellants.
There does not exist any statutory rule or regulation in the State of Orissa prescribing the method for selection of books for general reading to be kept in school and college libraries.
The State Government, however, periodically issues administrative instructions in the form of Government Resolutions constituting committees and laying down the procedure for selecting books.
Broadly speaking, three committees are constituted, namely, an Assessment Sub Committee, a Distribution Sub Committee and a Purchase Committee.
Government officials as well as non officials are appointed as members on these committees and sub committees.
Each year the State Government makes available a specific sum for purchase of books for libraries to be distributed among individual schools and colleges.
The procedure followed is that each year the Member Secretary of the Purchase Committee calls upon publishers and authors by advertisements given in local newspapers to submit books for consideration.
The Assessment Sub Committee then considers the books so submitted and thereafter recommends a list of books which, according to it, are suitable for general reading by school and college students.
The Purchase Committee considers the recommendations made by the Assessment Sub Committee and prepares a final list.
It is open to the State Government to reject any book out of the list so submitted without giving any reason and the decision of the State Government regarding the assessment, selection, purchase and distribution of books is made final.
Though a separate Government Resolution is issued each year, by and large the same pattern and procedure are maintained and only a few committee and sub committee members are changed and new members appointed in their place.
The selection of books for the years 1980, 1981 and 1982 was made in this fashion.
Admittedly, some of the members of the Assessment Sub Committee were themselves authors of books and some of the books written by them were selected and purchased.
The annual grant sanctioned by the State Government for this purpose for the years 1980, 1981 and 1982 was Rs. 5,00,000.
So far as the year 1982 was concerned, this annual grant fell short of the requirement by almost 50 per cent.
Accordingly the Purchase Committee restricted the list of 466 books out of 1,718 books submitted for selection, but as further funds became available the Government decided to select more books and accordingly constituted a Committee under the Chairmanship of Director of Public Instruction (Schools), Orissa.
329 This Committee selected a supplementary list of 105 books out of the said 1,718 books which had been submitted for selection.
There were unprecedented floods and cyclones in the months of August and September 1982 and a large number of schools and colleges suffered in this calamity and the libraries of many schools and colleges were washed away.
The Central Government thereupon, as part of its relief programme for the State, gave grants to the State during February and March 1983 aggregating to Rs. 45,00,000 for the purchase of books for the libraries of non governmental schools and colleges.
This was a time bound grant to be utilized by June 1983.
For this reason, the State Government felt that it was not feasible to adopt for selection of books the procedure usually followed as it took a considerable time and, therefore, took a decision on April 5, 1983, to utilize the grant made by Central Government in purchasing books out of the books selected for the years 1980, 1981 and 1982 and the said supplementary list of 105 books.
Accordingly, a meeting was convened on April 13, 1983, to consider the selection of books to be purchased.
There is some controversy with respect to who convened the said meeting, who were present at that meeting and what transpired in that meeting, but we find it unnecessary to go into this controversy.
Suffice it to say that books out of those selected for the years 1980, 1981 and 1982 and the said supplementary list were selected at this meeting.
Thereupon the Appellants who are publishers filed a petition under Article 226 of the Constitution against the State of orissa and the Director of Public Instruction, Orissa, to quash the lists of books selected for the years 1980, 1981 and 1982 and the State Government 's said decision with respect to purchasing books out of the cyclone and flood relief grant made by the Central Government inter alia on the ground of bias on the part of some of the members of the Assessment Sub Committee whose books were submitted for selection.
This writ petition was heard along with a similar writ petition filed by the Orissa Publishers and Book Sellers Association.
The High Court by a common judgment delivered on August 10, 1983, dismissed both these writ petitions and made no order as to the costs thereof.
It is against this judgment and order of the Orissa High Court that the Appellants have approached this Court by way of Appeal by Special Leave.
The High Court rested its decision on the following five 330 grounds, namely: (1) For the year 1980 81, the First Appellants, a partnership firm, had not submitted any book pursuant to the advertisement issued by the State Government.
For the year 1981 82, it had submitted twenty four books out of which one was selected.
For the year 1982 83, it had submitted twenty nine books out of which six were selected.
Having submitted books for selection and after being either partially successful in getting some books selected or having failed in getting books submitted by it selected, the First Appellant could not impugn the selection of books on the ground of bias on the part of the members of the Assessment Sub Committee.
The Second Appellant had not submitted any book for selection pursuant to the advertisement in this behalf issued by the State Government for any of the years in question and, therefore, was not a "person aggrieved" by any of the selections made for those years (2) Considering the exigency of the situation, the procedure followed by the State Government in setting up a committee for the selection to be made for purchase of books from the grant made by the Central Government was neither arbitrary nor against public interest inasmuch as the procedure usually followed was laid down only by executive directions and was not a statutory procedure and could, therefore, be changed by the State Government.
(3) The final decision approving the selection of books was that of the State Government for it had the right to reject any book recommended by the Assessment Sub Committee and, therefore, the fact that some members of the Assessment Sub Committee had also submitted their books for approval did not matter for the role played by an individual member of the Assessment Sub Committee was insignificant and did not and could not influence the decision either of that Sub Committee or of the State Government.
(4) The presence of Government officials as members of the Purchase Committee and the two Sub Committees was required by the Government Resolution constituting the Committees and Sub Committees and the fact that some of these Governmental officials had also submitted books for selection could not invalidate the selection made on the ground of bias for the doctrine of necessity applied in their case.
(5) No relief could be granted in respect of the books selected 331 for the years 1980, 1981 and 1982 inasmuch as the books selected for those years had already been purchased.
We are unable to follow the reasoning behind the first ground upon which the High Court rested its decision.
It appears to us paradoxical that when a person has submitted books for selection, it is to be said that he has waived the objection which he had to the constitution of the Sub Committee and that when a person had not submitted any books for selection it is to be said that he is not a 'person aggrieved '.
To say so would be a contradiction in terms.
If the reasoning of the High Court were correct, the sequitur would be that nobody would be able to challenge any selection of books, for a person who challenges the selection must either be one who has submitted a book or books for selection or one who has not submitted any book for selection.
In our opinion, the High Court was not right in the view it took.
Merely by submitting books for selection of which some might have been selected, a person cannot be said to have waived the objection which he may have to the constitution of the committee which selects the books.
Similarly, merely because a person does not submit any book for selection, it cannot be said that he is not a person aggrieved.
Today, the law with respect to locus standi has considerably advanced both in this country and in England and in the case of public interest litigation it is not necessary that a petitioner should himself have a personal interest in the matter.
It is unnecessary to refer to the decisions of this Court on the point or to dilate further upon it.
We may, however, mention that at the hearing of this Appeal before us this contention was not raised on behalf of the Respondents.
So far as the second ground given by the High Court for arriving at its decision is concerned, we are in agreement with the view which it took.
There were no statutory rules or regulations with respect to selection of books and the selection was done each year as an administrative measure.
It was, therefore, open to the State Government to change both the constitution of the committee and sub committees as also the procedure for selecting books when books had to be purchased from the grant given by the Central Government.
The grant given by the Central Government had to be expended within a particular period.
The procedure normally adopted by the State Government would have taken more time than what the time bound grant of the Central Government would have permitted.
The State Government was, therefore, justified in setting up a committee for selecting books to be purchased from 332 the Central Government grant in the manner in which it did.
There is, however, some controversy as regards the fact whether any publishers were present at the meeting of that committee.
According to the Appellants, some publishers were present at that meeting and took part in the deliberations.
According to the counter affidavit filed by the President of the Orissa Publishers and Book Sellers Association, a representative of that Association was called in at the end of that meeting to ascertain whether the said Association was prepared to shoulder the responsibility for arranging the timely supply of books and the said representative did not take part in the proceedings of the said meeting nor was he present at the deliberations thereof.
A copy of the minutes of the said meeting which has been annexed to the Petition for Special Leave to Appeal filed by the Appellants bears out this fact.
According to the said minutes, it was decided at the said meeting that the publishers would prepare a list of books to be supplied to different schools in different lots within the amount sanctioned for each category of schools and that the total number of books for each title would be almost equal and that the publishers would submit the list of such books for approval at the level of the directorate.
It is further recorded in the said minutes that the said Association would take the responsibility of supplying the books in packets in the office of the concerned authorities by the specified dates.
The urgency of the situation demanded that the books which were selected should be available for supply and, therefore, there could not be anything wrong in asking a representative of the said Association to remain present.
It is, however, unnecessary to go further into this controversy for the real question in this Appeal is of far greater importance.
That is the question of bias on the part of some of the members of the Assessment Sub Committee.
This question has been answered against the Appellants and forms the subject matter of the third and fourth grounds on which the High Court rested its decision.
Nemo judex in causa sua, that is, no man shall be a judge in his own cause, is a principle firmly established in law.
Justice should not only be done but should manifestly be seen to be done.
It is on this principle that the proceedings in courts of law are open to the public except in those cases where for special reason the law requires or authorizes a hearing in camera.
Justice can never be seen to be done if a man acts as a judge in his own cause or is himself interested in its outcome.
This principle applies not only to judicial proceedings but also to quasi judicial and administrative proceedings.
The position in law has been succinctly stated in 333 Halsbury 's Laws of England, Fourth Edition, Volume I, Para 68, as follows : "Disqualification for financial interest There is a presumption that any direct financial interest, however small, in the matter in dispute disqualifies a person from adjudicating.
Membership of a company, association or other organization which is financially interested may operate as a bar to adjudicating, as may a bare liability to costs where the decision itself will involve no pecuniary loss." In the case of A.K. Kraipak and others vs Union of India and Others,(1) a list of State Forest Officers prepared by the Selection Board for appointment to posts in the senior and junior scales in the Indian Forest Service was set aside by this Court on the ground that the officiating Chief Conservator of forests, whose name was placed at the top of the list, was a member of the Selection Board even though he was not present at the time his name was considered for selection and even though the Selection Board was a recommendatory body and the list prepared by it was to be considered first by the Home Ministry and then by the Union Public Service Commission by whom the final recommendations were to be made.
The Court held that the rule that no man should be a judge in his own cause was a principle of natural justice and applied equally to the exercise of qashi judicial as well as administrative powers.
In hardly requires any argument to show that a person who has written a book which is submitted for selection, either by himself or by his publisher, interested in the matter of selection.
Authors get their books published by publishers or may themselves publish them.
In either case, they stand to benefit financially.
In the first case, by getting royalty from publishers and in the second case, by making profits on the sale of books if the amount realized exceeds the cost of publication, or if the sales are not to that extent, by reducing the cost incurred in the publication of the book.
The Appellants have filed statements showing the financial benefit which accrued to those members of the Assessment Sub Committee whose books were selected.
To give one instance from these statements, in the case of a member of the Assessment Sub Committee who was a Government official and whose books were selected, books of the 334 aggregate value of Rs. 4,000 were purchased in the year 1980, of the aggregate value of Rs. 6,500 in the year 1981, and of the aggregate value of Rs. 72,500 in the year 1982.
It was contended in the counter affidavit filed on behalf of the Respondents that the amount of royalty received by these member authors was not much.
This fact is immaterial.
The amount of royalty depends on the agreement between the author and the publisher as also upon the sale price of the book.
The fact, however, remains that by the books being selected and purchased for distribution to school and college libraries the sales of those books had gone up and correspondingly the royalty received by the author members also went up and such author members thus received financial benefit.
It is no answer to say that an author member is only one of the members of the Assessment Sub Committee and that the ultimate decision rests with the State Government which may reject any book out of the list of approved books.
A similar argument was rejected by this Court in Kraipak 's case.
The State Government would normally be guided by the list approved by the Assessment Sub Committee.
Further, to say that such author member is only one of the members of the Assessment Sub Committee is to overlook the fact that the author member can subtly influence the minds of the other members against selecting books by other authors in preference to his own.
It can also be that books by some of the other members may also have been submitted for selection and there can be between them a quid pro quo or, in other words, you see that my book is selected and in return I will do the same for you.
In either case, when a book of an author member comes up for consideration, the other members would feel themselves embarrassed in frankly discussing its merits.
Such author member may also be a person holding a high official position whom the other members may not want to displease.
It can be that the other members may not be influenced by the fact that the book which they are considering for approval was written by one of their members.
Whether they were so influenced or not is, however, a matter impossible to determine.
It is not, therefore, the actual bias in favour of the author member that is material but the possibility of such bias.
All these considerations require that an author member should not be a member of any such committee or sub committee.
There is, however, an exception to the above rule that no men shall be a judge in his own cause, namely, the doctrine of necessity.
An adjudicator, who is subject to disqualification on the 335 ground of bias or interest in the matter which he has to decide, may be required to adjudicate if there is no other person who is competent or authorized to adjudicate or if a quorum cannot be formed without him or if no other competent tribunal can be constituted.
In such cases the principle of natural justice would have to give way to necessity for otherwise there would be no means of deciding the matter and the machinery of justice or administration would break down.
Thus, in The Judges vs Attorney General for Saskatchewan,(1) the Judges of the Court of Appeal were held competent to decide the question whether Judges of the Court of Appeal, of the Court of King 's Bench and of the District Courts of the Province of Saskatchewan were subject to taxation under the Income tax Act, 1932, of Saskatchewan on the ground that they were bound to act exnecessitate.
The doctrine of necessity applies not only to judicial matters but also to quasi judicial and administrative matters.
The High Court, however, wrongly applied this doctrine to the author members of the Assessment Sub Committee.
It is true, the members of this Sub Committee were appointed by a Government Resolution and some of them were appointed by virtue of the official position they were holding, such as, the Secretary, Education Department of the Government of Orissa, and the Director, Higher Education, etc.
There was, however, nothing to prevent those whose books were submitted for selection from pointing out this fact to the State Government so that it could amend its Resolution by appointing a substitute or substitutes, as the case may be.
There was equally nothing to prevent such non official author members from resigning from the committee on the ground of their interest in the matter.
So far as the fifth and last ground on which the High Court rested its decision is concerned, it must be held that the High Court was justified in refusing to grant relief on this ground in respect of the books selected for the years 1980, 1981 and 1982.
We are also faced with a similar fait accompli as the High Court was, not only in respect of the books selected and purchased for those years but also with respect to the books selected and to be purchased from the Central Government grant because these books have also by now been purchased and distributed among the various school and college libraries.
All that we can, therefore, do in this Appeal is to lay down guide lines which should be followed in the future in selecting not only books for libraries in educational institutions but 336 also in prescribing text books and in constituting committees for these purposes.
It was, however, submitted on behalf of the Respondents that it was not necessary for this Court to lay down any guide lines inasmuch as after the Special Leave to Appeal was granted in this case, the State Government had issued a fresh Government Resolution dated November 24, 1983, whereby it constituted a new Purchase Committee and Assessment Committee consisting of Government officials and non official members, clause (8) of which Resolution satisfied the principles of fair play and natural justice by eliminating the possibility of any author member of the committee influencing author members in selecting his book.
Clause (8) of the said Resolution reads as follows : "No member of the Purchase/Assessment Committee shall remain present in discussion while considering a book in which he/she is interested as author/editor/publisher.
" In the alternative, it was submitted that if the Court desires to lay down guide lines, it should do so by adopting clause (8) of the said Government Resolution dated November 24, 1983.
We are unable to accept either of the above two submissions.
Several books would come up for consideration before the committee, one or more of them by one of the members and the other or others by some of the other members.
Mere non participation in the discussion by the member concerned or even his withdrawing from the deliberations of the committee while his or her book or books are being considered is not sufficient because the evil of quid pro quo cannot be eliminated by this.
Members deliberating would bear in mind that the turn for selecting their books would also come and the concerned member who had not participated or had withdrawn would not then be favourably inclined to select their books.
It was suggested on behalf of the Appellants that in laying down the guide lines we should provide that if a publisher has published a book written by one of the members of the committee or sub committee concerned with the selection of books, such publisher should not be permitted to submit any book for selection even though no book by that author member had been submitted for selection.
It was urged that in such a case the author member would be favourably inclined to select or approve the book of that publisher in order 337 to maintain good relations with him.
We find this suggestion to be unrealistic.
Many a person falls a victim to that disease which Jnvenal called cacoethes scribendi(the writer 's itch), for as Byron said in his 'English Bards and Scottish Reviewers ' : " 'Tis pleasant, sure, to see one 's name in print; A book 's a book, although there 's nothing in 't." It would, therefore, be unfair to prohibit publishers from submitting books for selection merely because they had at one time published a book written by one of the members of the committee or sub committee concerned with the selection of books The number of publishers is large but good publishers are few and such publishers will, therefore, be publishing the majority of books.
To lay down such a guide line would be to eliminate a large number of books which may be worthy of selection.
In the light of the above discussion we lay down the following guide lines to be adopted by the State Government, governmental authorities and all committees constituted for the selection to textbooks as also books for libraries of educational institutions whether such committee be called a committee or sub committee or be described by some other nomenclature : (1) The committee should not consist merely of Government officials or have a preponderance of Government officials on it, for Government officials, with few exceptions, have by and large only administrative experience.
In addition to Government officials, therefore, the committee should also consist of men eminent in the particular fields of knowledge for which the books are to be selected.
Non official members should not be appointed as a matter of political considerations or on party lines but should be appointed only on merit.
(2) No member of the committee, a book written or edited by whom is submitted either by himself or his publisher for approval or selection; should continue to remain a member of the committee.
If he is a non official member, he should submit his resignation from the committee on this ground.
If he is a Government official, he should intimate to the Government or the authority appointing him on that committee the fact that a book written or edited by him has been submitted for approval or selection and the Government or the concerned authority should substitute in place 338 of such member another person, whether official or non official, none of whose books has been submitted for approval or selection.
(3) No publisher of books or his representative should be appointed a member of the committee or be allowed to remain present at or participate in the deliberations of the committee.
The guide lines we have laid down above are not intended to be exhaustive but contain the bare essentials of what is required.
We are conscious that no guide lines laid down by a court can ensure the selection of really worthwhile books.
This must necessarily depend upon the social consciousness and moral fibre of the members of the committee.
Similarly, no judgment of a court can eliminate the evil of behind the scene influence.
Here, one must perforce trust the sense of responsibility of the members of the committee in the discharge of the important duty with which they are entrusted.
For the reasons mentioned above, we allow this Appeal and direct the State of Orissa to amend suitably the Government Resolution dated November 24, 1983, or to issue a fresh notification in supersession of that notification, incorporating the guide lines laid down by us above, as expeditiously as possible and in any event before the next selection of books is made, without affecting any selection already made.
In the particular facts and circumstances of this case there will be no order as to the costs of this Appeal.
S.R. Appeal allowed.

summary/full:
Selection of text books and books for reading to be kept in school and college libraries is a matter of vital importance to the imparting of proper education.
Such selection must depend upon the ability and fitness for the purpose of those who are charged with that responsibility.
In the State of Orissa, there was no statutory rule or regulation prescribing the procedure for selection of books for general reading to be kept in school and college libraries, except the State Government 's periodical administrative instructions in the form of resolutions constituting committees namely, an Assessment Sub Committee, a Distribution Sub Committee and a Purchase Committee to which Government officials as well as non officials were appointed as members.
The procedure followed was that each year the Member Secretary of the Purchase Committee would call upon publishers and authors by advertisements given in local newspapers to submit books for consideration.
The Assessment Sub Committee could than consider the books so submitted and thereafter recommend a list of books which, according to it, were suitable for general reading by school and college students.
The Purchase Committee would consider the recommendations made by the Assessment Sub Committee prepares a final list and submit it for approval to the State Government which could reject any book out of the list so submitted without giving any reason.
The decision of the State 323 Government regarding the assessment, selection purchase and distribution of books was made final.
The selection of the books for the years 1980, 1981 and 1982 was made in this fashion.
Admittedly, some of the members of the Assessment Sub Committee were themselves authors of books and some of the books written by them were selected and purchased.
The Purchase Committee restricted the list for the years 1980, 1981 and 1982 to 466 books out of 1,718 books submitted for selection, but as further funds became available the Government decided to select more books and accordingly a committee constituted under the Chairmanship of Director of Public Instruction (Schools), Orissa, selected a supplementary list of 105 books out of the said 1,718 books which had been submitted for selection.
Before further steps could be taken, in the unprecedented fiords and cyclones of August/September 1982, number of schools and colleges suffered in the calamity and the libraries of many schools and colleges were washed away.
The Central Government thereupon, as part of its relief programme for the State, gave grants to the State during February and March, 1983 aggregating to Rs. 45 lakhs for the purchase of books for the libraries of non governmental schools and colleges and to be utilised before June 1983.
Due to Paucity of time and delay in the normal process of selection of books, the State Government took a decision or April 5, 1983 to utilise the grant made by the Central Government by purchasing books out of the books selected for the years 1980, 1981 and 1982 and the said supplementary list of 105 books.
In the meeting convened on April 13, 1983, to consider the selection of books to be purchased, all the 466 books selected for the years 1980, 1981 and 1982 together with the 105 supplementary list of books were approved.
Thereupon, the appellants who were publishers filed a Writ Petition under Article 226 of the Constitution against the State of Orissa and the Director of Public Instruction, Orissa to quash the list of books selected for the years 1980, 1981 and 1982 and the State Government 's said decision with respect to purchasing books out of the cyclone and flood relief grant made by the Central Government, inter alia on the ground of bias on the part of some of the members of the Assessment Sub Committee whose books were submitted for selection.
This Writ Petition was heard along with a similar Writ Petition filed by the Orissa Publishers and Book Sellers Association.
The High Court by a common judgment delivered on August 10, 1983 dismissed both these Writ Petitions.
Hence the appeals by Special Leave of the Court.
Allowing the appeal, the Court 324 ^ HELD : 1.
The law with respect to locus standi has considerably advanced both in this country and in England and in the case of public interest litigation it is not necessary that a petitioner should himself have a personal interest in the matter.
Merely by submitting books for selection, of which some might have been selected, a person cannot be said to have waived the objection which he may have to the constitution of the committee which selects the books.
Similarly, merely because a person does not submit any book for selection, it cannot, be said that he is not a person aggrieved.
[331 E; D] 2.
In the absence of any statutory rule or regulation with respect to selection of books and the selection being made each year as an administrative measure it was open to the State Government to change both the constitution of the committee and sub committees as also the procedure for selecting books to be purchased.
Since the procedure normally adopted by the State Government would have taken more time than what the time bound grant of the Central Government would have permitted, the State Government was justified in convening the meeting on April 13, 1983 and selecting the books to be purchased from the Central Government grant.
[331 G H] 3:1.
Nemo judex in causa sua, that is, no man shall be a judge in his own cause, is a principle firmly established in law.
Justice should not only be done but should manifestly be seen to be done.
It is on this principle that the proceedings in courts of law are open to the public except in those cases where for special reason the law requires or authorizes a hearing in camera.
Justice can never be seen to be done if a man acts as a judge in his own cause or is himself interested in its outcome.
The principle applies not only to judicial proceedings but also to quasi judicial and administrative proceedings.
[332 G H] A. K. Kraipak and others vs Union of India and others, , followed.
A person who has written a book which is submitted for selection either by himself or by his publishers, is interested in the matter of selection and therefore an author member should not be a member of any such committee or sub committee for several considerations namely : (a) Authors stand to benefit financially in several ways by getting either royalty from the publishers or by direct sales; (b) Though an author member may be only one of the members of the Assessment Sub Committees and that the ultimate decision of selection may rest with the State Government which may reject any book out of the list of the approved books, normally the State would be guided by the list of books approved by the Assessment Committee ; (c) The author member can certainly influence the minds of the other members against selecting books by other authors in preference 325 to his own ; (d) Books by some of the other members may also have been submitted for selection and there can be between them a quid pro quo or, in other words you see that my book is selected and in return I will do the same for you.
In either case, when a book of an author member comes up for consideration, the other members would feel themselves embrassed in frankly discussing its merits ; (e) Such author member may also be a person holding a high official position whom the other members may not want to displease ; and (f) Though it may be that the other members may not be influenced by the fact that the book which they are considering for approval was written by one of their members, whether they were so influenced or not would, however, be a matter impossible to determine.
It is not, therefore, the actual bias in favour of the author member that is material but the possibility of such bias.
[333 F H; 334A G] 4 : 1.
The doctrine of necessity is, however, an exception to the doctrine of bias, that no man shall be a judge in his own cause.
An adjudicator, who is subject to disqualification on the ground of bias or interest in the matter which he has to decide, may be required to adjudicate if there is no other person who is competent or authorized to adjudicate or if a quorum cannot be formed without him or if no other competent tribunal can be constituted.
In such cases, the principal of natural justice would have to give way to necessity for otherwise there would be no means of deciding the matter and the machinery of justice or administration would break down.
[334 H; 335 A B] The Judges vs Attorney General for Saskatchewan, 53 The Times Law Reports 464 (1937) quoted with approval.
In the instant case, the High Court wrongly applied the doctrine of necessity to the author member of the Assessment Sub Committee.
Though the members of this Sub Committee were appointed by a Government resolution and some of them were appointed by virtue of the official position they were holding, such as, the Secretary, Education Department of the Government of Orissa, and the Director, Higher Education, etc.
, there was, nothing to prevent those whose books were submitted for selection from pointing out this fact to the State Government so that it could amend its resolution by appointing a substitute or substitutes, as the case may be.
There was equally nothing to prevent such non official author members from resigning from the committee on the ground of their interest in the matter.
[335 C E] 5:1.
The High Court, however, was justified in refusing to grant any relief in respect of the books selected for the year 1980, 1981 and 326 1982 inasmuch as the books selected for those years had already been purchased.
Since a similar fait accompli stared at the Supreme Court not only in respect of the books selected and purchased for those years, but also with respect to the books selected to be purchased from the Central Government grant, in the instant fase, the Court could lay down only certain guide lines to be followed in future in selecting not only books for libraries in educational institutions but also in prescribing text books and in constituting committees for these purposes.
The Supreme Court accordingly laid down such guidelines.
[335 F H] 5:2.
However, the guide lines laid down by a court can only ensure the selection of worthwhile books.
This must necessarily depend upon the social consciousness and moral fibre of the members of the committee.
Further, no judgment of a court can eliminate the evil of behind the scene influence.
Here, one must perforce trust the sense of responsibility of the members of the committee in the discharge of the important duty with which they are entrusted.
[338 B C] 6:1.
Clause 8 of the Government resolution dated November 24, 1983, issued after the grant of Special Leave Petition to Appeal does not satisfy the principle of natural justice and fair play.
Since several books would come up for consideration before the committee, one or more of them by one of the member and the other or others by some of the other members, mere non participation in the discussion by the member concerned or even his withdrawing from the deliberations of the committee while his or her book or books are being considered is not sufficient because the evil of quid pro quo cannot be eliminated by such a resolution.
Members deliberating would bear in mind that the turn for selecting their books would also come and the concerned member who had not participated or had withdrawn would not then be favourably inclined to select their books.
[336 B; E G] 6:2.
Many a person falls a victim to the disease called cacoethes scribendi.
It would, therefore, be unfair to prohibit publishers from submitting books for selection merely because they had at one time published a book written by any one of the members of the committee or sub committee concerned with the selection of books.
The number of publishers is large but good publishers are few and such publishers will, therefore, be publishing the majority of books.
To lay down such a guide line would be to eliminate a large number of books which may be worthy of selection.
[337 A C]


judgement:
Civil Appeal No. 404 of 1984.
Appeal by Special leave from the Judgment and Order dated the 11th July, 1983 of the Patna High Court in C.W.J.C. No. 623 of 1983.
Dr. L.M. Singhvi, Mrs. Lakshmi Kant Pande & S.K. Sinha, for the Appellant.
D. Goverdhan & B.B. Singh for the Respondents.
The following Judgments were delivered FAZAL ALI, J.
The most difficult and delicate task of our founding fathers while framing the Constitution of the largest democracy in the world was to protect, preserve and safeguard the interests of the minorities and the backward classes in order to retain 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 entire Constitution which has provided sufficient safeguards to protect and preserve the minority educational institutions which is the most important and vocal 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 and for this avowed purpose article 30 was enshrined in our Constitution 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 article 30 is not included in Part II of the Indian Constitution, which guarantee certain fundamental rights.
yet this Court starting from the Kerala Education Eill 's case.
Which is the locus classicus on the point in issue, right up to the case of The Ahmedabad St. Xaviers College Society & Anr, etc.
vs State of Gujarat & Anr.
and ending with All Sainis High School, Hyderabad & Ors.
vs Government of 415 Andhra Pradesh & Ors. has clearly recognised that running of minority institutions is also as fundamental and important as the rights conferred on the other citizens of the country.
Perhaps the only difference is that the rights contained in article 30 have an independent sphere of their own.
A close scrutiny and study of the various decisions of this Court reveal that 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, any State action which in any way destroys, curbs or interferes with such rights would be violative of article 30.
In the instant case we are mainly concerned with the rights, privileges and status of minority institutions.
In dwelling on these matters four important aspects or facets have been considered by this Court, viz.: (1) 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 (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 Government or affiliation from the Universities as a matter of course.
In other words, the question posed is whether the right to affiliation or to not so as to violate article 30.
Technically speaking 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 freedoms enshrined in Art 30 of the Constitution.
If the Government 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 institutions which may not exist without the Government aid and a large 416 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 was inserted in the Constitution.
In the present case, we would like to confine our judgment only to the question of refusal of affiliation to a minority institution by the State and the University.
To begin with, in Kerala Education Bill 's case (supra), Das, C.J. speaking for the majority (Venkatarama Aiyar, J. having given his separate judgment) observed thus; "The minorities evidently desire that education should be imparted 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 eligible for entering the public services.
Without recognition, therefore, the educational 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 needs of their community and the scholars who resort to their educational institutions.
There is, no doubt, no such thing as fundamental right to recognition by the State but to deny recognition to the Educational institutions except upon terms tantamount to the surrender 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 article 30(1).
We repeat that the legislative power is subject to the fundamental rights and the legislature cannot indirectly take away or abridge the fundamental rights which it could not do directly and yet that will be the result if the said Bill containing any offending clause becomes law." (Emphasis ours) The observations and the ratio of this case were fully affirmed 417 and expounded by this Court in a 9 Judge Bench decision in St. 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 efface the autonomy and individuality of a minority institution violates article 30.
In this connection, the Judges by separate judgements made the following observations: "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 minority institutions in the matter of imparting secular education.
Any law which provides for affiliation on terms which will involve abridgement of the right of linguistic and religious minorities to administer and establish educational institutions.
of their choice will offend Article 30 (1).
The educational institutions set up by minorities will be robbed of their utility if boys and girls cannot be trained in such institutions for University 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 institution is not only ineffective but also unreal unless such institution is affiliated to a University for the purpose of conferment of degrees on students.
. . . . . . Affiliation of minority institutions is intended to ensure the 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 Hon 'ble the Chief Justice just pronounced and with his conclusions that sections 40, 41, 33A(1) (a), 33A(1)(b), 51A and 52A of the Act violate the fundamental rights of minorities and cannot, therefore, apply to the institutions established and administered by them. . . . . .
The right under article 30 cannot be exercised in vacuo.
Nor 418 would it be right to refer to affiliation or recognition as privileges 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 article 30(1) would and must necessarily involve recognition of the secular education imparted by the minority institutions without which the right will be a mere husk.
This Court has so far consistently struck down all attempts to make affiliation or recognition on terms tantamount to surrender of its rights under article 30(1) as abridging or taking away those rights.
Again as without affiliation there can be no meaningful exercise of the right under article 30(1), the affiliation to be given should be consistent with that right.
nor can it indirectly try to achieve what it cannot directly do." (Jaganmohan Reddy, J.) 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 right of the minority to establish and administer their educational institutions.
Affiliation and recognition are, no doubt, not mentioned in article 30(1) 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 guaranteed by article 30(1) to be wholly 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 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. . . . . .
If the conversion of affiliated colleges of the minorities 419 into constituent colleges contravenes article 30(1), the fact that 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.) "Over the year, this Court has held that without recognition or affiliation, there can be no real or meaningful exercise of the right to establish and administer educational institutions under Article 30(1).
. . . . . The heart of the matter is that no educational 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 the 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 recognition or affiliation." (Mathew, J.) "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 conferred 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 intention is not manifest from the express terms of statutory provisions, the provisions may be vitiated if that is their necessary consequence or effect." (Beg, J.) "However, in case of an affiliating University affiliation cannot be denied to a minority institution on the sole ground that it is managed by a minority whether based on religion or language or on arbitrary or irrational basis.
Such a denial would be violative of articles 14 and 15(1) and will be struck 420 down 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 article 30(1), the State cannot also indirectly take away or abridge that right by subjecting the grant affiliation to conditions which would entail the forbidden result." (Diwedi, J.) On a careful and detailed review of the cases cited above, the following position emerges; (1) 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 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 personality 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 but these conditions should not in any way take away the freedom of management or administration of the institution 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 article 30 of the Constitution.
(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 opposed to the aims, objects and ideals sought to be achieved by the institutions.
421 (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 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 reasonable conditions to be imposed in the larger interest of education.
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 impermissible as being violative of article 30 of the Constitution.) It is not necessary 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, we are constrained to observe, reveal a most distressing and disturbing attitude exhibited by the University 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 of the University.
We are indeed amazed 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 impunity.
In order to buttress what we have said, it may be necessary to give a short history of the Institution in question.
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 order was passed by the Government directing the Universities 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 appear as a private candidate.
However, in the case of minority institutions the State Government in sub para (3) of paragraph (1) stated thus: 422 "(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 prove that it was a minority institution before it could be granted affiliation.
Thereafter, on 24.2.1978 the appellants filed an application before the Ranchi University for grant of affiliation.
This was followed by issue of Bihar non Government Teachers Training College Ordinance on June 5, 1978.
On June 15, 1978 the Government wrote to the Ranchi University for inspection of the appellant 's 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 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 affiliation in 1977 and claimed to be a minority institution, 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 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 Government to decide recognition and affiliation of the appellants ' college within a specified time.
On 3.11.80, the Government granted recognition 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 22.11.1980, the appellants applied for grant of permanent affiliation.
But, somehow or the other, on 27.11.80, for undisclosed reasons, 423 the Government passed a strange order cancelling the recognition 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.
Thereafter, on 17.8.81 the State of Bihar filed a special leave petition before this Court which was dismissed on 30.11.81.
However, on 7.9.81 three minority colleges, alongwith the appellants ' college, were granted recognition and affiliation by the Government.
Ultimately, the High Court had to be moved again which directed the State Government to dispose of the application of the appellants for permanent recognition which was filed by them on 22.11.80.
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 kindly be seen 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 recommendation that this training institution be affiliated.
The recommendation of the University may kindly be seen at p. 150.
Accordingly, this college be temporarily granted recognition and affiliation for the sessions 1980 81 to 1982 83 for the present.
" A perusal of the above recommendation shows that the Institution 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 affiliation and recognition at least for the session 1980 81 to 1982 83 Despite this, nothing tangible seems to have happened which compelled the appellants to file another writ petition in the High Court on 3.5.1983 for examination of the students of the appellants ' college who 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 exhibit J. (Education Commissioner 's recommendation) and the data on 424 the basis of which the concerned authorities had recommended that affiliation should be granted to the appellants college 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.
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 authorities, 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 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; (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, residences of lecturers, gymnasium, canteen, etc., and the 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 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 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.
In reply to the affidavit filed by the 425 appellants, the defence of the State was that after inspection of the Institution it was found by a team of 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.
(iii) The college runs during evening hours which makes impracticable for practice classes in schools which run during day time.
(iv) The college had no building of its own.
(v) The library and laboratory were not properly maintained.
" It is rather strange that while a previous expert Committee after inspecting the said Institute found it in order but subsequently the Government without referring to the data submitted by the expert Committee, which was the basis of exhibit J. seems to have suddenly given a go bye 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 affiliation without even mentioning in what manner and to what extent the 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 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 production 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 was prepared to grant affiliation to the appellants ' college on fulfilling certain conditions.
We are however, satisfied that this is nothing but a pretext or a smoke screen to cloud the real issue.
Indeed, if the Government meant business it should have the courage to produce the report on which exhibit J. was based, which has been deliberately suppressed despite our orders to produce the same.
We are, therefore, compelled to draw an adverse inference against the State 426 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.
Thus, the position is that the State has refused to grant affiliation 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 affiliation.
In other words, the affiliation was refused without giving any sufficient reasons and such a refusal contravenes the provisions of article 30 of the Constitution.
For the reasons given above, we find that this is a fit case where this Court should step in to strike down the Government action which is violative of article 30 of the Constitution and which does not 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 Commissioner 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.
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 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 limine as also the Order of the Government refusing affiliation and peremptorily direct the Government 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 that 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 the conditions imposed are reasonable and justifiable.
427 SABYASACHI MUKHARJI, J.
I agree with the order proposed by 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 the university authorities inspected the appellants ' college and recommended its affiliation which was followed by a report by the Government on 30 June.
1980 recommending affiliation.
But despite these, no final decision was taken by the Government as a result of which the appellants had to move the High Court for directing the Government 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, 1978 79 and 1979 80.
On the 10th November, 1980, the University wrote to the Government recommending grant of affiliation.
On 22nd November, 1980, the appellants applied for grant of permanent affiliation.
But the Government on 27th November, 1980 passed an order cancelling the recognition and approval for affiliation granted to the appellants ' college vide its letter dated 3rd November, 1980.
This order was challenged before the High Court.
The High Court quashed the said order dated 27th November, 1980 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 Government to dispose of the application of the appellants for permanent recognition which was filed by them on 22nd November, 1980.
On the 16th September, 1982 the Education Commissioner Bihar again made a recommendation 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 education Commissioner recommended that the college be temporarily granted recognition and affiliation for the sessions 1981 82 and 1982 83 for the present.
Another writ petition thereafter was filed and nothing happened for the examination 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 arises out of the said order.
There were certain data which were gathered by the expert committee and were the basis of exhibit J.
There was a previous order for the production of exhibit 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 authorities which were made after a full and proper inspections, the 428 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 exhibit J. that these conditions have not been substantially fulfilled.
It appears, therefore, and I agree respectfully with my 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.
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 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 Committee 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.
No cogent materials or reliable evidence were produced before us that there was any proper inspection and as a 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 exhibit J., the alleged plea of non fulfilment of certain conditions was a pretext.
In the premises, the government action in not granting affiliation in the background of the facts and circumstances of this case is action based 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 and Nobel purpose of safeguarding and protecting the rights of minorities to establish and administer educational 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 inaction or an act of arbitrariness on the part of the authorities.
From such unreasonable and arbitrary actions or inactions, institutions 429 educational or otherwise, belonging both to the majority or minority 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 affiliation was being denied to the appellants ' institution on the ground that it was a minority institution.
I agree with great respect with the order proposed by my learned brother, Fazil Ali, J. S.R. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The appellant Institution was started as a Teachers Training College under a Society which was established as far 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 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 appear as a private candidate.
How ever, since the above decision was not applicable to minority institutions which was reiterated by a latter ordinance called Bihar non Government Teachers Training College ordinance on June 5, 1978, it was incumbent on the institution to prove that it was a minority institution before it could be granted affiliation, on 24.2.1978 the appellants filed an application before the Ranchi University for grant of affiliation on June 15, 1978, the Government wrote to the Ranchi University for inspection of the appellants 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 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 30.6.1980 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 for directing the Government to grant affiliation.
On the High Court 's direction to the Government to decide recognition and affiliation 411 the appellants ' college within a specified time, on 3.11.1980, the Government granted recognition 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 further grant of affiliation to the appellants ' college.
On 22.11.1980 the appellants applied for grant of permanent affiliation.
But, somehow or the other, on 27.11.1980 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 challenged before the High Court which quashed the same on 18.5.1981.
Thereafter, on 17.8.1981 the State of Bihar filled a Special Leave Petition before the Supreme Court which was dismissed on 30.11.1981.
However.
on 7.9.1981.
three minority colleges, alongwith the appellants ' college, were granted recognition and affiliation by the Government by virtue of the High Court 's orders.
The appellants again wrote to the High Court to direct the State Government to dispose of the application of the appellants for permanent recognition filed by them on 22.11.1980.
On 16.9.1982.
the Education Commissioner, Bihar again made a recommendation This recommendation was made after inspection by the Educational Commissioner In the presence of the local authorities as also the University authorities and after coming to a conclusion that the institution was a minority institution.
Despite this, since no action was taken by the Government the appellants were compelled to file another Writ Petition in the High Court on 3.5.1983 with a prayer to allow the students of the appellants ' college to appear at the University Examination, but the Writ Petition was dismissed by the High Court in limine.
Hence, the appeal by Special Leave of this Court Allowing the appeal, the Court ^ HELD: (Per majority) Per Fazal Ali.
J 1.1.
Although Article 30 of the Constitution is not included in Part III of the Indian Constitution which guarantees certain fundamental rights, yet the Supreme Court starting from the Kerala Education Bill s case, which is the locus classicus on the point in issue, right up to the case of The Ahmedabad St. Xaviers College Society & Anr.
vs State of Gujarat and Anr.
and ending with All Saints High School, Hydrabad & Ors.
vs Government of Andhra Pradesh & Ors. has clearly recognised that running of minority institutions is also as fundamental and important as the rights conferred on the other citizens of the country, with the only difference that the rights contained in Article 30 have as independent 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, any State action which in any way destroys, curbs or interferes with such rights would be violative of Article 30.
[414 G H; 415 A B] 1.2.
Technically speaking, the right of affiliation or aid from the Government is not a fundamental right so as to violate Article 30, but the refusal to give aid or affiliation by the statutory authorities without just and sufficient grounds amounts to violation of the fundamental freedoms enshrined in Articles 30 of the Constitution.
If the Government withholds giving aid or a University 412 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 institutions which may not exist without the Government aid and a large 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 Article 30 was inserted in the Constitution.
[415 G H; 416 A] Kerala Education Bill 's Case [1959] SCR 995; The Ahmedabad St Xaviers College Society & Anr.
vs State of Gujarat & Anr.
; ; and All Saints High School.
Hyderabad & Ors.
vs Government of Andhra Pradesh & Ors.
referred to.
On a careful and detailed review of these cases the following position emerges: (1) that while article 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 of the University, as the case may be, to lay down reasonable conditions to maintain the 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 personality 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 article 30 because what cannot be done directly is done indirectly.
[420 C 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 administration of the institution so as to reduce it to a satellite of the University or the State.
This is impermissible because such a course of action directly violate article 30 of the Constitution.
[420 F 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 opposed to the aims, objects and ideals sought to be achieved by the institutions.
[420 H] (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 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 reasonable conditions to be imposed in the larger interest of education.
[421 A B] 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 impermissible as being violative of article 30 of the Constitution.
[421 C] 413 2:1.
In the instant case, the State has refused to grant affiliation 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 affiliation.
In other words, the affiliation was refused without giving any sufficient reasons and such a refusal contravenes the provisions of article 30 of the Constitution.
[426 G] 2:2.
The belated attempt through a subsequent affidavit filed by the State Government to show that there were certain defects in the Institution, in view of the non production of the most important and decisive material, is nothing but an after thought.
The State Government 's assurance to grant affiliation to the appellants college on fulfilling certain conditions is nothing but a pretext or a smoke screen to cloud the real issue.
The Government did not mean business by producing a report on which exhibit J was based, which has been deliberately suppressed despite the Court 's order to produce the same.
Therefore, an adverse inference has to be drawn against the State 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 namely that the appellants institute does fulfil all the conditions imposed by the State.
[425 G H; 426 A] 3.
Normally the Supreme Court does not grant cost in case of refusal of affiliation to institutions 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 the Court 's order for production of certain documents the instant case is a fit case for imposing a heavy cost on the State, apart from the directions to the State for granting affiliation to the appellant 's college and to allow its students of the 1980 81, 1981 82 and 1982 83 sessions to sit in the examination.
[426 F G] Per Sabyasachi Mukharji, J. (Concurring) In the background of the facts and circumstances of this case, the Government action is not granting affiliation to the appellants college is action based without reason and is an act of arbitrariness.
[428 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 establish and administer educational institutions.
In this case, in not granting affiliation to the appellants ' college there was no discrimination against any educational institution on the ground that it was under the management of any minority whether based on religion or language.
It was inaction or an act of arbitrariness on the part of the authorities.
From such unreasonable 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.
In this case there is no evidence or even any serious allegation that affiliation was being denied to the appellants institution on the ground that it was a minority institution.
[428 G H; 429 A B] 414


judgement:
ivil Appeal Nos. 4152 to 4157 of 1982.
Appeals by Special leave from the Judgment and Order dated the 2nd November, 1982 of the Bombay High Court, Panaji Bench, 431 (Goa), in Special Civil Application Writ Petitions Nos. 129, 110, 103, 101, 102 and 10 of 1980.
Soli J. Sorabjee, Mrs. A. K. Verma and O. C. Mathur for the Appellant.
The Judgment of the Court was delivered by BALAKRISHNA ERADI, J.
These appeals by special leave are directed against the Judgment of the High Court of Bombay (Panaji Bench) dated 2.11.1982 whereby a Division Bench of the High Court allowed a batch of Writ Petitions filed by some students who had appeared in the XII standard examination conducted by the Goa, Daman and Diu Board of Secondary and Higher Secondary Education and declared the provisions of clauses (1) and (2) of Rule 37 of the rules framed by the Administrator of Goa, Daman and Diu under Goa, Daman and Diu Secondary and Higher Secondary Education Board Act as ultra vires and invalid insofar as they prohibit inspection and/or revaluation of answer books.
In reaching the said conclusion on the validity of the impugned rules the High Court followed its earlier Judgment in Paritosh Bhupesh Kumarsheth and others vs Maharashtra State Board of Secondary and Higher Secondary Education, Pune and another AIR 1981 Bombay 895 wherein Regulation 104 (3) framed by the Maharashtra State Board of Secondary and Higher Secondary Education which is an identical provision prohibiting inspection and/or revaluation of answer books was declared illegal and ultra vires.
The correctness of the said Judgment (AIR 1981 Bombay 895) came in for examination by this Court in Maharashtra State Board of Secondary and Higher Secondary Education and another vs Paritosh Bhupesh Kumarsheth and Others.
By Judgment dated 17th July 1984, this Court reversed the view taken by the Bombay High Court and upheld the validity of the impugned clauses (1) and (3) of Regulation 104.
The present case is fully covered by the dicta laid down in the said ruling.
Hence we set aside the Judgment of the High Court and upheld the validity of clauses (1) and (2) of Rule 37 of the rules framed under the Goa, Daman and Diu Secondary and Higher Secondary Education Board Act.
These appeals are allowed and the writ petitions filed in the High Court will stand dismissed.
The appellant will get its costs from the respondents.
H.S.K. Appeal allowed.

summary/full:
On being challenged, the Bombay High Court, following its earlier decision in Paritosh Bhupesh Kumarsheth and other vs Maharashtra State Board of Secondary and Higher Secondary Education, Pune and another, AIR 1981 Bombay 895, declared clauses (1) and (2) of Rule 37 of Goa, Daman and Diu Secondary and Higher Secondary Education Rules, 1975 insofar as they prohibit inspection and/or revaluation of answer books, as invalid.
Hence these appeals by special leave, Allowing the appeals.
^ HELD: The decision followed by the Bombay High Court has been overruled by this Court in Maharashtra State Board of Secondary and Higher Secondary Education and another vs Paritosh Bhupesh Kumarsheth and others ; The present case is fully covered by the dicta laid down in the said ruling.
Hence the judgment of the High Court is set aside and the validity of clauses(1) and (2) of Rule 37 is upheld.
[431F G] Maharashtra State Board of Secondary and Higher Secondary Education and another vs Paritosh Bhupesh, Kumarsheth and others, decided by Supreme Court ;