PETITIONER:
A.P. CHRISTIANS MEDICAL EDUCATIONAL SOCIETY ETC.
Vs.
RESPONDENT:
GOVERNMENT OF ANDHRA PRADESH & ANR.
DATE OF JUDGMENT24/04/1986
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
OZA, G.L. (J)
SINGH, K.N. (J)
CITATION:
1986 AIR 1490 1986 SCR (2) 749
1986 SCC (2) 667 1986 SCALE (1)895
CITATOR INFO :
D 1987 SC2305 (13)
R 1992 SC1926 (6)
ACT:
Constitution of India, Art. 30(1) - Educational
institutions - Right of minorities to establish and
administer - Court's right to pierce 'minority veil' to
ascertain exact nature of the institution.
HEADNOTE:
The appellant, a registered society, purported to
establish and administer a medical college as a Christian
minorities' educational institution in Andhra Pradesh. The
policy of the Government of India and the Medical Council of
India was not to permit the opening of new medical colleges.
It was, however, open to private organisations to establish
colleges of higher education which could seek affiliation to
universities in whose jurisdiction they were located. Such
colleges could offer courses leading to degrees only if they
were affiliated to a university.
One of the requirements of affiliation of a medical
college with the Osmania University was the existence of a
full fledged hospital with at least 700 beds, a regular
outpatient department, well equipped laboratories, lecture
halls, demonstration rooms, etc. and hostel for students or
in the alternative provision of funds to the tune of about
rupees twenty five crores, permission letter from the State
Government to start the medical college, and a government
order indicating that the bye-laws of the management have
been registered as minority institution and accepted by the
Government as such.
The appellant society could not fulfil a single
condition, apart from appointing someone as principal.
Neither the memorandum of association nor the articles of
association made reference to any amount of corpus with
which the society and the college proposed to be founded by
it were to be financed initially. It did not own any land,
and it had no support of the Church either. While its
application for
750
affiliation was pending with the University it admitted
students to the first year of the MBBS course, despite
strong protests voiced and several warnings issued by the
University.
On May 23, 1985 the University wrote to the Society
that it was necessary to obtain the permission of the State
Government and the Medical Council of India in order to
start a medical college. The society was also informed that
their action in admitting students in the first year MBBS
course was highly irregular and illegal and that it should
cancel the admissions so made, and that attendance at the
institutions not affiliated to or recognised by the
University would not qualify a candidate for admission to
any examination conducted by the University.
On July 24, 1985 the State Government informed the
society that permission to start a private medical college
could not be granted. The society thereupon filed a petition
in the High Court seeking a writ under Art. 226 of the
Constitution to quash the refusal and to direct the
Government to grant permission and the University to grant
affiliation. The petition was dimissed in limine observing
that there were no circumstances to justify compelling the
Government to grant permission to the society to start a new
medical college in view of the restrictions placed by an
expert body like the Medical Council of India that no
further medical college should be started.
In the appeal by special leave, it was contended that
even a single individual belonging to a minority could found
a minority institution and had the right so to do under the
Constitution, and neither the Government nor the University
could deny the society's right to establish a minority
institution, though they may impose regulatory measures in
the interests of uniformity, efficiency and excellence of
education.
In the writ petition filed by some of the students
admitted into the MBBS Course by the Society, it was pleaded
that the interests of students should not be sacrificed
because of the conduct or folly of the management, and that
they should be permitted to appear at the university
examination, notwithstanding the circumstances that
permission and affiliation had not been granted to the
institution.
751
Dismissing the appeal and the writ petition, the Court
^
HELD : 1.(i) The Court has the undoubted right to
pierce the 'minority veil' and discover whether there is
lurking behind it no minority at all and in any case, no
minority institution. [762 C-D]
1.(ii) What is important and what is imperative is that
there must exist some real positive index to enable the
institution to be identified as an educational institution
of the minorities. The object of Art. 30(1) is not to allow
bogies to be raised by pretenders but to give the minorities
a sense of security and a feeling of confidence, not merely
by guaranteeing the right to profess, practise and propagate
religion to religious minorities and the right to conserve
their language, script and culture to linguistic minorities,
but also to enable all minorities, religious or linguistic,
to establish and administer educational institutions of
their choice. These institutions must be educational
institutions of the minorities in truth and reality and not
mere masked phantoms. [762 H; D-F]
In the instant case, the claim of the appellant to
start a minority educational institution was no more than
the merest pretence. Apart from the half a dozen words "as
the Christian minorities educational institutions" occurring
in one of the objects recited in the memorandum of
association, there was nothing whatever to justify the claim
of the society that the institutions proposed to be started
by it were intended to be minority educational institutions.
These words were added merely to found a claim on Art. 30(1)
and for no other purpose. They were a smoke screen. [763 A-
C]
2.(i) Many, many conditions had to be fulfilled before
affiliation could be granted by the University. Yet the
society launched into the venture without fulfilling any one
of them beyond appointing someone as Principal. No one could
have imagined that a medical college would function without
a teaching hospital, without the necessary scientific
equipment, without the necessary staff, without the
necessary buildings and without the necessary funds. Yet,
that is what the society did or pretended to do. [761 E-G]
752
2.(ii) The establishment of a medical college in the
instant case was in the nature of a financial adventure for
the society with a view to make money from gullible
individuals anxious to obtain admission to professional
collegiate courses. It was nothing but a daring imposture
and skulduggery. The Court cannot, therefore, confer on it
the status and dignity of a minority institution. [761 G-H]
3. The admission of students into the first year MBBS
course was in defiance of the conditions laid down by the
University. It was audacious since the society had no right
to admit any student without first getting affiliation from
the University for the so-called medical college. By so
doing, the Society had perpetrated a huge hoax on innocent
boys and girls. [758 E-G]
4. The Court cannot by its fiat direct the University
to permit the students to appear in the examination and
thereby disobey the statute, to which it owes its existence,
and the regulations made by the University itself. That
would be destructive of the rule of law. The students sought
and obtained admission in the college despite the warnings
issued by the University from time to time. That is the
situation which they have brought upon themselves and they
are themselves to blame. The University acted watchfully and
wakefully, issuing timely warnings. [764 E; G-H; 765 A-B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5497 of
1985.
From the Judgment and Order dated 17th October, 1985 of
the Andhra Pradesh High Court in W.P. No. 11924 of 1985.
WITH
Writ Petition (Civil) No. 12929 of 1985.
(Under Article 32 of the Constitution of India.)
S. Krishnan, J.B. Dadachanji, Mrs. A.K. Verma, Joel
Peres and Ms. Lira Goswami, for the Appellant in C.A.
5497/85.
K.K. Venugopal, S.S. Krishna, J.B. Dadachanji, Mrs.
A.K. Verma, Joel Perses, Ms. Lira Goswami, for the
Petitioners in W.P. No. 12929/85.
753
T.S. Krishnamurthy, H.S. Gururaj, S. Markandeya, K.
Ramkumar and K. Ram Mohan for the Respondents.
B.P. Singh, Ranjit Kumar and Harbans Singh for the
interveners.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J. A brazen and bizarre exploitation
of the naive and foolish, eager and ready-to-be-duped,
aspirants for admission to professional collegiate courses,
behind the smoke screen of the right of the minorities to
establish and administer educational institutions of their
choice – is what this case is about. A society styling
itself as the ‘Andhra Pradesh Christian Medical Educational
Society’ was registered on August 31, 1984. The first of the
objectives mentioned in the memorandum of association of the
society was, “to establish, manage and maintain educational
and other institutions and impart education and training at
all stages, primary, secondary, collegiate, Post-graduate
and doctoral, as a Christian Minorities’ Educational
Institutions.” Another object was “to promote, establish,
manage and maintain Medical colleges, Engineering colleges,
Pharmacy colleges, Commerce, Literature, Arts and Sciences
and Management colleges and colleges in other subjects and
to promote allied activities for diffusion of useful
knowledge and training.”Other objects were also mentioned in
the Memorandum of Association. All that is necessary to
mention here is that none of the objects, apart from the
first extracted object, had anything to do with any
minority. Even the first mentioned object did not specify or
elucidate what was meant by the statement that education and
training at all stages was proposed to be imparted in the
institutions of that society “As Christian Minorities”
Educational Institutions’. Apparently the wrods “as a
Christian minorities’ educational institutions” were added
in order to enable the society to claim the rights
guaranteed by Art. 30(1) of the Constitution and for no
other purpose. This will become clearer and clearer as we
narrate further facts.
It is also worthy of note that neither the memorandum
of association nor the articles of association make any
reference to any amount of corpus with which the society and
the institutions proposed to be founded by it were to be
financed
754
initially. It was admitted before us in answer to a question
by us to the learned counsel for the appellant-society that
the society had no funds of its own apart from what was
collected from the students.
On August 27, 1984, one Professor C.A. Adams was one of
the signatories to the memorandum of association of the
society, claiming also to be the President of a self-styled
National Congress of Indian Christian addressed a letter to
Smt. Indira Gandhi, late Prime Minister of India, requesting
that the Central Government may grant them permission to
establish a Central Christian University of India in Andhra
Pradesh, where Christian children would be provided with
facilities for education in arts, sciences, engineering and
technological courses, medicine, law and theological
courses. The Petitions’ officer attached to the Prime
Minister’s office informed Prof. Adams that his letter had
been forwarded to the Ministry of Education and Culture for
further action. On September 20, 1984, the Deputy Secretary
to the Government of India, Ministry of Education and
Culture wrote to the President, National Congress of Indian
Christians to the effect that universities could only be
established under Acts of Parliament or of State
Legislatures and there was, therefore, no question of giving
permission to any organisation to establish a university.
However, it was pointed out that it was open to private
organisations to establish colleges of higher education
which could seek affiliations to the universities in whose
jurisdiction they were established. Such colleges could
offer courses leading to university degrees only if they
were affiliated to a university. Prof. Adams then wrote to
the Government of India claiming that there was no legal
impediment to the grant of permission by the Government to
the establishment of a university. It was said that if
necessary, the Government could initiate legislation also.
In order to avoid further delay, the letter proceeded to
state, they were starting professional courses in rural
areas at Vikarabad in Rangareddy District. It was stated “to
start with, as per your advice, we are proposing to start
the following faculties at Vikarabad where we have our
Christian Hospital, High School, Church and other vacant
buildings and plenty of vacant land suitable for further
expansion belonging to our christian churches.” The
Government of India was further requested to address the
University of Hyderabad to grant affiliation to
755
their colleges and to recommend to the All-India Institution
of Medical Sciences to affiliate their medical college. The
Government was also requested to sanction ‘the Central
grant’ for these colleges. Earlier in the letter it was also
mentioned that the Prime Minister was kind enough to agree
to grant permission for establishing the Central Christian
University of India in Andhra Pradesh for the benefit of two
crores of Christians living in India. Most of the statements
in the letter are either misleading or false. That the Prime
Minister had agreed to the establishment of a Central
Christian University is admitted before us to be false.
Similarly the reference to “our Christian Hospital, High
School, and Church and vacant buildings” would give an
impression that the hospital, high-school, etc. were
institutions of the self-styled National Congress of Indian
Christians. None of those institutions is even remotely
connected with this so-called organisation. This was
admitted before us in answer to a question by us. While
Prof. Adams in his capacity as the so-called President of
the National Congress of Indian Christians correspondent
with the Central Government, the same Professor Adams in
another capacity, namely Chairman of the Andhra Pradesh
Christian Medical Educational Society, entered into a
correspondence with the Chief Minister of the Government of
Andhra Pradesh and the Vice Chancellor, Osmania University.
He and one Christopher, who described himself as the
Secretary of the Society addressed a letter to the Chief
Minister claiming that under the provisions of Art.30(1) of
the Constitution, they, the Christian minority had the right
to establish educational institutions of their choice and
requested him to initiate necessary action for the
establishment of a Central Christian University of India as
suggested by the Government of India and to grant permission
for establishing a Christian Medical College at Vikarabad.
It was mentioned in the letter that the Government of India
had informed them that either Parliament or the State
Legislature had to initiate action for establishing a
university, but the Government of India had permitted them
to start professional colleges and seek affiliation of the
University within whose jurisdiction they fell. It is
unnecessary to repeat that the reference to the grant of
permission was false. On November 30, 1984, Christopher,
Secretary of the National Congress of Indian Christians
wrote a circlar letter to the Vice-Chancellors of the
Osmania University, the Hyderabad Central
756
University and eight other universities all over India
requesting them to grant affiliation to their colleges. On
January 22, 1985, the Registrar of the Osmania University
replied stating that it was necessary for the association to
submit documentary evidence regarding the fulfilment of the
conditions prescribed for affiliation and to submit an
application in the prescribed form. The conditions of
affiliation of a medical college were mentioned as :-
“1. These should be full fledged Hospital with at
least (700) beds.
2. There should be a regular out-patient deptt.
Casualty Dematology well equipped labs., Lecture
Halls, Demonstration Rooms for students.
3. There should be a full fledged theatres in the
College, three with seating capacity for 150 to
200 students each and one with seating capacity
for 350 to 400 students, Lecture Theatres and
Demonstration rooms should be provided with
necessary Audio-Visual aids. In addition to the
Lecture Theatres, there should be an auditorium
where 800 to 1000 persons could be seated.
4. Accommodation has to be provided for the
following Departments 1. Anatomy 2. Physiology 3.
Bio-Chemistry 4. Pharmacology 5. Pathology 6.
Micro Biology 7. Forensic Medicine 8. Social and
Preventive Medicine 9. General Medicine 10.
Surgery 11. Obstetrics and Gynaeology 12. Blood
Bank.
Accommodation has to be provided for the following
Departments :
5. The cost of equipment for pre-parclinical is
Rs.1 crore and recurring expenditure on the pre-
and Paraclinical staff is Rs. 24,00 lakhs p.a.
6. The Management should establish the Labs. for
anatomy Physilogy and Bio-Chemistry immediately.
7. Amount to be provided for the construction of
the following :-
757
1. Hospital (700) beds Rs. 7 crores. 2. College Rs. 3 crores. 3. Library, Administrative Block, Auditorium Animal House and Works shop Rs. 1 crore 4. Hospital Rs. 1-1/2 crore 5. Equipment & Furniture for (i) Hospital Rs. 7-1/2 crores (ii) College Hostels Rs. 5 crores.
8. The Management should appoint a Principal with
immediate effect to run the Medical College.
9. Permission letter from the Govt. of Andhra
Pradesh to start a Medical College.
10. A Govt. Order indicating that the Bye-laws of
the Management has been registered as Minority
Institution and accepted by the Government as
such.
11. Documentary evidence for the Land for locating
the college and hospital.
12. Plan of the proposed building in which the
college and Hospital in proposed to be start.
13. Copies of the Order placed with firms for
furniture, books, equipment, if any, or a
resolution to the effect that the management would
provide necessary funds for furniture, equipment
and books etc.
14. A copy of the constitution of the Governing
Body and a copy of the Certificate of Registration
of the Governing Body.”
The National Congress of Indian Christians was requested to
furnish information as required in the annexture in 10
copies. Thereafter on March 19, 1983, Professor Adams as
Chairman of the Christian Medical Education Society wrote to
the Registrar, Osmania University informing the latter that
the Management was taking necessary action in regard to the
various matters mentioned in the letter of the University
758
dated January 22, 1985 and that one Dr. K. Sanjeeva Rao had
been appointed as Principal of that College. It was stated
in the letter that there was no need to get the permission
of the State Government as the Christian Community had a
right to establish its own educational institutions under
Art. 30 of the Constitution. But if permission was necessary
permission had already been granted by the Central
Government in their letter dated September 20, 1984. It was
also mentioned that ‘plans and estimates’ of the proposed
medical college at Muttangi, Medak District were enclosed.
The University was further informed that 60 students had
already been admitted to the first year of University MBBS
course of 1984 session and that classes were functioning
from February 25, 1985. The University was requested to send
its screening Committee to inspect the college. The
University was also requested to grant temporary
affiliation. The letter contained the usual false
statements. The statement that the Central Government had
granted permission was of course false. The statement
referring to ‘plans and estimates’ of the proposed college
building at Muttangi, Medak District was again a misleading
statement as it is now admitted that the society does not
own any land in Muttangi. Though the University had called
upon the society to fulfil several conditions before
affiliation could be granted, it is clear from the letter
that apart from appointing somebody as Principal of the
College, nothing whatever had been done to comply with any
of the other conditions. The society itself did not refer to
any effort made by it to fulfil any of the other conditions.
The admission of 60 students into the first year MBBS course
was in defiance of the conditions laid down by the
University. It was audacious since the society had no right
to admit any student without getting affiliation from the
University. By purporting to admit students into the so-
called medical college, the society had perpetrated a huge
hoax on innocent boys and girls. The University wrote to the
society on May 23, 1985 pointing out that according to the
procedure laid down, affiliation could not be granted
without obtaining the feasibility report of the Screening
Committee. It was also pointed out that it was necessary to
obtain the permission of the State Government and the
Medical Council of India in order to start a medical
college. The society was informed that their action in
admitting students in the first year MBBS course was highly
759
irregular and illegal and the society was asked to cancel
the admissions made by them. It was also pointed out that
attendance at the institutions not affiliated or recognised
by the University would not qualify a candidate for
admission to any examination conducted by the university.
At this juncture, it is necessary to mention that the
Andhra Pradesh Christian Medical Education Society inserted
an advertisement in the ‘Decan Chronicle’ of December 9,
1984 inviting applications from candidates for admission to
the first year MBBS course of the Andhra Pradesh Central
Institute of Medical Sciences. When the advertisement came
to the notice of the University authorities, they published
a notification informing the public in general and the
student community in particular that the Osmania University
had neither permitted nor granted affiliation in the MBBS
course to the above institution’ and ‘whoever seeks
admission in the above institution will be doing so at
his/her own risk’. The society appears to have been
inserting advertisements off and on inviting applications
for admission to the MBBS course. So on March 4, 1985 the
University once again published a notification in the
newspapers containing a similar warning. The warning was
also broadcast on the radio and telecast on the television.
Despite all this, the society again inserted an
advertisement in the newspapers inviting applications from
candidates for admission to the first year MBBS course for
the 1985 session. The University once again, had to publish
a notification warning the public. On June 5, 1985, the
society inserted an advertisement in the ‘Decean Chronicle’
styled as a ‘reply notice’, signed by an Advocate. The
notice contained the oft-repeated false allegation that the
Central Government had granted permission to the society to
start professional colleges and that the Prime Minister
herself had recommended the grant of permission. It was
claimed that the Osmania University had no power to
interfere with the affairs of the Christian Medical College
and that the notification published by the Osmania
University was unconstitutional and uncalled for. It was
also stated that the management was seeking affiliation with
other universitites and had made good progress. This of
course is another false statement. There is nothing whatever
to indicate that the institution had made any progress in
obtaining affiliation from any other university.
760
On July 24, 1985, the Government of Andhra Pradesh
wrote to the society informing them that permission to start
a private medical college could not be granted as it was the
policy of the Government of India and the Medical Council of
India not to permit opening of new medical colleges. Before
us, the petitioner society disputed the statement that there
was any policy decision of the Government of India or the
Medical Council of India not to permit opening of new
Medical colleges. But two letters – one from the Medical
Council of India to the Government of Andhra Pradesh and
another from the Government of India to the Medical Council
of India – have been brought to our notice. In the letter
dated January 16, 1981 from the Medical Council of India to
the Government of Andhra Pradesh it is stated, “The council
is against the starting of any new medical colleges until
all the existing ones are put on a firm footing.” In the
letter of the Government of India to the Medical Council of
India, it is stated, “At present there are 106 medical
colleges in the country with an annual out turn of 12,500
medical graduates per year. This out put is considered
sufficient to meet the medical man power requirements of the
country. Therefore, the present policy of the Government of
India is not to permit setting up of new medical colleges.”
On the refusal of the Government of Andhra Pradesh to
grant permission to the society to start a medical college,
the society filed a writ petition in the High Court of
Andhra Pradesh seeking a writ to quash the refusal of
permission by the Government of Andhra Pradesh and to direct
the Government to grant permission and the University to
grant affiliation. The claim for the issue of a writ was
based on the fundamental right guaranteed by Art. 30(1) of
the Constitution. The writ petition was dismissed in limine
by the High Court by a speaking order on the ground that
there were no circumstances to justify compelling the
Government to grant permission to the society to start a new
medical college in view of the restriction placed by an
expert body like a Medical Council of India that no further
medical college should be started. The society has filed
this appeal by special leave of this court under Art. 136 of
the Constitution.
Even while narrating the facts, we think, we have said
enough to justify a refusal by us to exercise our
discretionary jurisdiction under Art. 136 of the
Constitution. We do not
761
have any doubt that the claim of the petitioner to start a
minority educational institution was no more than the merest
pretence. Except the words, “As the Christian Minorities
Educational Institutions” occurring in one of the objects of
the society, as mentioned in the memorandum of association,
there is nothing whatever to justify the claim of the
society that the institutions proposed to be started by it
were ‘minority educational institutions’. Every letter
written by the society whether to the Central Government,
the State Government or the University contained false and
misleading statements. As we had already mentioned the
petitioner had the termerity to admit or pretend to admit
students in the first year MBBS course without any
permission being granted by the Government for the starting
of the medical college and without any affiliation being
granted by the University. The society did this despite the
strong protest voiced by the University and the several
warnings issued by the university. The society acted in
defiance of the University and the Government, in disregard
of the provisions of the Andhra Pradesh Education Act, the
Osmania University Act and the Regulations of the Osmania
University and with total indifference to the interest and
welfare of the students. The society has played havoc with
the careers of several score students and jeopardised their
future irretrievably. Obviously the so-called establishment
of a medical college was in the nature of a financial
adventure for the so-called society and its office bearers,
but an educational misadventure for the students. Many, many
conditions had to be fulfilled before affiliation could be
granted by the University. Yet the society launched into the
venture without fulfilling a single condition beyond
appointing someone as principal. No one could have imagined
that a medical college could function without a teaching
hospital, without the necessary scientific equipment,
without the necessary staff, without the necessary buildings
and without the necessary funds. Yet that is what the
society did or pretended to do. We do not have any doubt
that the society and the so-called institutions were started
as business ventures with a view to make money from gullible
individuals anxious to obtain admission to professional
colleges. It was nothing but a daring imposture and scul-
duggery. By no stretch of imagination, can we confer on it
the status and dignity of a minority institution.
762
It was seriously contended before us that any minority,
even a single individual belonging to a minority, could
found a minority institution and had the right so to do
under the Constitution and neither the Government nor the
University could deny the society’s right to establish a
minority institution, at the very threshold as it were,
howsoever they may impose regulatory measures in the
interests of uniformity, efficiency and excellence of
education. The fallacy of the argument in so far as the
instant case is concerned lies in thinking that neither the
Government nor the University has the right to go behind the
claim that the institution is a minority institution and to
investigate and satisfy itself whether the claim is well-
founded or ill-founded. The Government, the University and
ultimately the court have the undoubted right to pierce the
‘minority veil’ – with due apologies to the Corporate
Lawyers – and discover whether there is lurking behind it no
minority at all and in any case, no minority institution.
The object of Art. 30(1) is not to allow bogies to be raised
by pretenders but to give the minorities ‘a sense of
security and a feeling of confidence’ not merely by
guaranteeing the right to profess, practise and propagate
religion to religious minorities and the right to conserve
their language, script and culture to linguistic minorities,
but also to enable all minorities, religious or linguistic,
to establish and administer educational institutions of
their choice. These institutions must be educational
institutions of the minorities in truth and reality and not
mere masked phantoms. They may be institutions intended to
give the children of the minorities the best general and
professional education, to make them complete men and women
of the country and to enable them to go out into the world
fully prepared and equipped. They may be institutions where
special provision is made to the advantage and for the
advancement of the minority children. They may be
institutions where the parents of the children of the
minority community may expect that education in accordance
with the basic tenets of their religion would be imparted by
or under the guidance of teachers, learned and steeped in
the faith. They may be institutions where the parents expect
their children to grow in a pervasive atmosphere which is in
pharmonyx with their religion or conducive to the pursuit to
it. What is important and what is imperative is that there
must exist some real positive index to enable the
institution to be identified
763
as an educational institution of the minorities. We have
already said that in the present case apart from the half a
dozen words ‘as a Christian minorities institution’
occurring in one of the objects recited in the memorandum of
association, there is nothing whatever, in the memorandum or
the articles of association or in the actions of the society
to indicate that the institution was intended to be a
minority educational institution. As already found by us
these half a dozen words were introduced merely to found a
claim on Art. 30(1). They were a smoke-screen.
It was contended before us that the permission to start
a new medical college could not be refused by the Government
nor could affiliation be refused by the University to a
minority institution on the ground that the Government of
India and the Medical Council of India had taken a policy
decision not to permit the starting of new medical colleges.
It was said that such a policy decision would deny the
minorities their right to establish an educational
institution of their choice, guaranteed by Art. 30(1) of the
Constitution. The argument was that the right to establish
an educational institution was an absolute right of the
minorities and that no restriction, based on any ground of
the public interest or state or social necessity could be
placed on that right so as to destroy that right itself. It
was said that to deny permission to a minority to start a
medical college on the ground that there were already enough
medical colleges in the country was tantamount to denying
the right of the minority guaranteed under Art. 30(1). On
the other hand, it was said, when in the pursuit of general
or professional educational for its members, a minority
community joins the mainstream of national life, it must
subject itself to the national interest. The right
guaranteed by Art. 30(1) gives the minority the full liberty
to establish educational institutions of its own choice. If
the minority community expresses its choice and opts to join
the scheme of national educational policy, it must naturally
abide by the terms of that policy unless the terms require
the surrender of the right under Art. 30(1). It was said
that a medical college needed very heavy investment and that
to produce doctors beyond need would be a national waste
apart from creating a problem of unemployment in a sphere
where there should be none. It appears, if one may borrow
the words of Sir Roger de Coverley, ‘there is much to be
said on both sides’. In view
764
of our conclusion on the other issues we do not want to
venture an opinion on this question.
Shri K.K. Venugopal, learned counsel for the students
who have been admitted into the MBBS course of this
institution, pleaded that the interests of the students
should not be sacrificed because of the conduct or folly of
the management and that they should be permitted to appear
at the University examination notwithstanding the
circumstance that permission and affiliation had not been
granted to the institution. He invited our attention to the
circumstance that students of the Medical college
established by the Daru-Salaam Educational Trust were
permitted to appear at the examination notwithstanding the
fact that affiliation had not by then been granted by the
University. Shri Venugopal suggested that we might issue
appropriate directions to the University to protect the
interests of the students. We do not think that we can
possibly acceed to the request made by Shri Venugopal on
behalf of the students. Any direction of the nature sought
by Shri Venugopal would be in clear transgression of the
provisions of the University Act and the regulations of the
University. We cannot by our fiat direct the University to
disobey the statute to which it owes its existence and the
regulations made by the University itself. We cannot imagine
anything more destructive of the rule of law than a
direction by the court to disobey the laws. The case of the
medical college started by the Daru-Salaam Trust appears to
stand on a different footing as we find from the record
placed before us that permission had been granted by the
State Government to the Trust to start the medical college
and on that account, the University had granted provisional
affiliation. We also find that the Medical Council of India
took strong and serious exception to the grant of
provisional affiliation whereupon the University withdrew
the affiliation granted to the college. We are unable to
treat what the University did in the case of the Daru-Salaam
Medcial College as a precedent in the present case to direct
the University to do something which it is forbidden from
doing by the University Act and the regulations of the
University. We regret that the students who have been
admitted into the college have not only lost the money which
they must have spent to gain admission into the college, but
have also lost one or two years of precious time virtually
jeopardising their future careers. But that is a
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situation which they have brought upon themselves as they
sought and obtained admission in the college despite the
warnings issued by the University from time to time. We are
happy to note that the University acted watchfully and
wakefully, issuing timely warnings to those seeking
admission to the institution. We are sure many must have
taken heed of the warnings issued by the university and
refrained from seeking admission to the institution. If some
did not heed the warnings issued by the university, they are
themselves to blame. Even so if they can be compensated in
some manner, there is no reason why that may not be done. We
are told that the assets of the institutions, which have
sprung out of the funds collected from the students, have
been frozen. It is up to the State Government to devise
suitable ways, legislative and administrative, to
compenstate the students at least monetarily. The appeal
filed by the society is dismissed with costs which we
quantify at Rs. 10,000. The writ petition filed by the
students is dismissed but, in the circumstances, without
costs.
P.S.S. Appeal and Petition dismissed.
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