Hidayatullah, C. J. - (1.) The Principal and the Rector of St. Xavier's College, Ranchi and two parents of students have filed the present petition under Art. 32 of the Constitution. The petition also purports to be filed on behalf of St. Xavier's College Ranchi and the Association of St. Xavier. The petitioners challenge S. 48-A of the Bihar State Universities (University of Bihar, Bhagalpur and Ranchi) Act, 1960 as amended by Second Amendment Act, 1961 as ultra vires Arts. 29 and 30 of the Constitution.
(2.) St. Xavier's College was established by the Jesuits of Ranchi. It was affiliated to Patna University in 1944. The management of the college vests in a Governing Body consisting of 11 members. They are: "(i) The Superior Regular of Ranchi Jesuit Mission - President ex-officio. (ii-v) Four Counsellors to the Superior Regular to be nominated by the Jesuit Mission authorities. (vi) The Principal of the College-Vice President and Secretary ex-officio. (vii) One representative of the teaching staff of the college elected by the members of the staff. (viii) One representative of the Patna University. (ix-xi) Three persons to represent Hindu, Muslim and Aboriginal interests." The terms of service of Religious staff are determined by the Jesuit Mission Authorities, but those of the members of the Lay staff including their appointment are determined by the Governing Body. All appointments to the teaching staff, both Religious and Lay are reported to the Syndicate of the Patna University. The object of founding the college inter alia is to give Catholic youth a full course of moral and liberal education, by imparting a through religious instruction and by maintaining a Catholic atmosphere in the institution. The college is, however, open to all non-catholic students. All non-catholic students receive a course of moral science.
(3.) The College was thus founded by a christian minority and the petitioners claim they have a right to administer it, a constitutional right guaranteed to minorities by Article 30. The petitioner's complaint is that the Bihar Legislature passed an amending Act and introduced in the Bihar Universities Act S. 48-A to come into force from March 1, 1962, which deprives them of this protection and is, therefore, ultra vires. The provisions of this section are as follows:- "48-A Establishment of a University Service Commission for affiliated colleges not belonging to the State Government and its powers and functions:- (1) With effect from such date as the State Government may, by notification in the Official Gazette, appoint, there shall be established a Commission by the name of the University Service Commission. (2) The said Commission shall be a body corporate having perpetual succession and a common seal, and shall by the said name sue and be sued. (3) The commission shall consist of a Chairman and two other members to be appointed by the State Government who shall be whole time officers, and shall hold office for a term of three years from the date of assumption of charge of office, on the expiration of which term they, or any of them, may be re-appointed for only one more term which shall not exceed three years. (4) There shall be a Secretary to the Commission who shall also be a whole time officer to be appointed by the State Government. (5) Other terms and conditions of service of the Chairman, members and the Secretary shall be determined by the State Government. (6) Subject to the approved of the University, appointments, dismissals, removals, termination of service or reduction in rank of teachers of an affiliated college not belonging to the State Government shall be made by the governing body of the on the recommendation of the Commission. (7) (i) In making recommendations for appointment to post of teacher of any such affiliated college, the Commission shall have the assistance of two experts in the subject for which an appointment is to be made, of whom one shall whenever possible be a teacher of the University to be nominated by the Syndicate and the other shall be a person other than a teacher of the University, to be nominated by the Academic Council. (ii) The experts shall be associated with the Commission as assessors whose duty it shall be to give expert advice to the Commission but who shall have no right to vote. (8) The Commission shall, wherever feasible, recommend to the governing body of a college for appointment to every post of teacher of the college names of two persons arranged in order of preference and considered by the Commission to be the best qualified therefor. (9) In making appointment to a post of teacher of a college, the governing body of the college shall, within three months from the date of the receipt of the recommendation under sub-section (8), make its selection out of the names recommended by the Commission, and in no case shall the governing body appoint a person who is not recommended by the Commission. (10) Notwithstanding anything contained in the preceding sub-sections, it shall not be necessary for the governing body to consult the Commission if the appointment to a post of teacher is not expected to continue for more than six months and cannot be delayed without detriment to the interest of the College: Provided that if it is proposed to retain the person so appointed in the same post for a period exceeding six months or to appoint him to another post in the college the concurrence of the Commission shall be necessary in the absence of which the appointment shall be deemed to have been terminated at the end of six months. (11) (ii) The Commission shall be consulted by the governing body of a college in all disciplinary matters affecting a teacher of the college and no memorials or petitions relating to such matters shall be disposed of nor shall any action be taken against, or any punishment imposed on, a teacher of the college otherwise than in conformity with the finding of the Commission.: Provided that it shall not be necessary to consult the Commission where only an order of censure, or an order withholding increment, including stoppage at an efficiency bar, or an order of suspension pending investigation of charges is passed against a teacher of a college. (12) It shall be the duty of the Commission to present annually to the University a report as to the work done by the Commission in relation to such colleges affiliated to the University and a copy of the report shall be placed before the Senate at its next meeting, and the University shall further prepare and submit to the State Government memorandum explaining, as respects the cases, if any, where the advice of the Commission was not accepted, the reasons for such non-acceptance and the State Government shall cause the same to be laid before the Legislature of the State." ;