Patna High Court
Sri Parasnath Digamber Jain High School vs State Of Bihar And Ors. on 6 September, 1983
Equivalent citations: 1984(32)BLJR161
JUDGMENT Satyeshwar Roy, J.
1. By this petition under Articles 226 and 227 of the Constitution of India (the Constitution), the petitioner has prayed for quashing Annexure 22, letter dated 5.1.1983 written by respondent No. 1 to the Regional Deputy Director of Education (the R.D.D.E.) by which respondent No. 1 informed the latter that as the Managing Committee of the School was not validly constituted, the Managing Committee of which Kapoor Chand was the secretary would continue till a new Managing Committee was constituted in terms of the constitution of the school and under Section 18(3)(a) of the Bihar Non-government Secondary School (Taking over of Management and Control) Act, 1981 (1981 Act) within one year. Respondent No. 1 further informed that no approval be given to the order of the Managing Committee terminating the service of respondent No. 5.
2. On the 30th of April, 1965 a Managing Committee was constituted by the President Board of Secondary Education in exercise of his powers under Rule 39 of the Bihar High School (Constitution, Power and Function of Managing Committee) Rules, 1964 (the 1964 Rules) framed under the Bihar High School Control and Regulation of Administration) Act, 1960 (the 1960 Act). Kapoor Chand, also known as Kapoor Chand Jain, was nominated Secretary of that Managing Committee. This is contained in Annexure 1 corresponding to Annexure A to the counter affidavit filed on behalf of respondent No. 5. On 12.7.1973 the school was recognized as a minority institution based on religion.
3. According to the petitioner thereafter a Managing Committee was constituted by the general members of the Digamber Jain community, the last Managing Committee constituted, according to the constitution of the School, was in the year 1982 of which Mahavir Prasad Jain was the Secretary. The school issued charge-sheet against respondent No. 5, the then Head Master, for various charges and he was directed to show-cause and an enquiry officer was appointed to enquire into the charges. After giving him all reasonable opportunity to defend himself, the enquiry officer found respondent No. 5 guilty of the charge. The Managing Committee terminated his service. Having come to know that respondent No. 5 was manoeuvering to involve the officials of education department to interfere with the order on the ground that the Managing Committee was not validly constituted, the petitioner wrote repeatedly respondent Nos. 1 to 3 to give opportunity to show that the Managing Committee was validly constituted. However, respondent No. 1 issued Annexure 22 by ignoring the requests of the Managing Committee. Respondent No. 4 Kapoor Chand, had resigned from the office of the Secretary some time in the year 1971 and five out of the ten members named in Annexure 1 were dead when Annexure 22 was issued.
4. According to the petitioner the right to administer and manage the school was protected under Article 30 of the Constitution and respondent No. 1 had no right to issue Annexure 22 as it amounted to interference with the right of the petitioner.
5. No counter affidavit has been filed on behalf of respondent Nos. 1 to 3. Respondents Nos. 4 and 5 in their separate counter affidavits have asserted that the Managing Committee was not validly constituted at any point of time except the one that was done by Annexure 1. Respondent No. 4 did not resign his office at any point of time. Both of them have stated that the order contained in Annexure 22 was valid.
6. At the time of hearing although counter affidavit has been filed by respondent No. 4, but no submission was made on his behalf.
7. Mr. N.K. Prasad, learned Counsel appearing on behalf of respondent No. 5 raised preliminary objection regarding the maintainability of the writ petition. He contended that neither there was any thing to show that Mahavir Prasad Jain who has claimed to be the Secretary of the school and through whom the petition has been filed was ever the member of the Managing Committee nor he was the Secretary of the school at any point of time. On the basis of the affidavit sworn in support of the writ petition, he submitted that the deponent Diwakar Sarak himself had filed C.W.J.C. No. 359 of 1981 (R) challenging his order of termination of service in which he stated that the Managing Committee of the school was not validly constituted at any point of time except the 1965 Managing Committee. On the basis of these facts, Mr. Prasad urged that the writ petition was not maintainable by the school through a person who was never the Secretary of the school. According to him as no right was created in favour of Mahavir Prasad Jain, he cannot make a complaint of invasion of his right. Mr. Prasad contended that the writ petition should be dismissed on this ground.
8. It appears that Diwakar Sarak was an employee of the school and his services were terminated. He filed C.W.J.C. No. 359 of 1981 (R) challenging his order of termination of his services and the same is pending. This Court directed that he would continue to be in the services of the petitioner till the disposal of that writ application. By virtue of the order, therefore, Diwakar Sarak is continuing in services of the petitioner. It also appears that he, in his writ application, stated that the Managing Committee was not validly constituted, whereas in this application he has sworn in affidavit that the managing Committee was validly constituted.
9. In reply Mr. S.B. Sinha, learned Counsel appearing on behalf of the petitioner, submitted that respondent No. 5 had no locus standi to challenge the validity or otherwise of the constitution of the Managing Committee. According to him even if it is assumed that the Managing Committee which terminated his services was not validly constituted it was not denied by the respondents that this Managing Committee was de facto Managing Committee of the school. He also relied on the rejoinder filed on behalf of the petitioner supported by an affidavit sworn in by Hukum Chand Jain, who claimed to be a member of the Managing Committee. In the rejoinder Hukum Chand Jain supported all the facts made in the writ petition which was sworn in by Diwakar Sarak. On the basis of the rejoinder he submitted that even if there was any irregularity, the same has been cured by the affidavit filed by Hukum Chand Jain.
10. The hearing of this writ petition was taken up on 17.6.1983 and was heard in part. The hearing was resumed on 26.8.1983. A copy of the rejoinder was served on the learned Counsel for the respondents on the 20th of August, 1983. The respondents did not file any reply to this rejoinder. No objection was raised on behalf of the respondents with regard to this rejoinder filed on behalf of the petitioner. The writ petition was filed challenging the order of respondent No. 1 who held that the Managing Committee was not validly constituted, The petitioner asserted that it was validly constituted Surprisingly, respondent No. 1 who held that it was not validly constituted did not come forward to state on oath the facts on the basis of which it found that the Managing Committee was not validly constituted, particularly when one or other respondent corresponded with Mahavir Prasad Jain as Secretary as appears from annexure Nos. 14, 15 and 16, The competent and non-interested person, therefore, to controvert the assertion of the petitioner were respondents Nos. 1 to 3. By annexure 8 information was given to respondent Nos. 1 to 3 about the election of Managing Committee. By annexure 11 Secretary Secondary Education Board was informed about election. By annexure 12 that Board wrote the secretary of the school to take disciplinary action against respondent No. 5 for gross misconduct. By annexure 13 Mahavir Prasad Jain called upon respondent No. 5 to show cause. Respondent No. 5 in reply by annexure 14, prayed that he be pardoned. By annexure 15 the Sub-divisional Educational Officer, wrote in 1977 to Mahavir Prasad Jain that he was an important member of the Managing Committee and was requested to send his comments with regard to the threatening given by Respondent No. 5 that he would go on hunger strike. About annexures 8, 11, 12, 13 and 14 respondent No. 5 in counter affidavit stated that it were forged and fabricated. With regard to annexures 8, 11, 12 and 13 the denial of respondent No. 5 is of no consequence as he was not the author or it nor the same were addressed to him. Respondent Nos. 1 to 3 do not deny it.
11. Let us assume that Mahavir Prasad Jain was not the Secretary of the school. He has asserted that he is a member of Digamber Jain community and admitted case is that this community established and manage the school The members of that community was recognised as a religious minority. Any member of that community can therefore claim that as by annexure 22 his right under Article 30(i) of the Constitution has been infringed, that be quashed ; for the right under Article 30(i) of the Constitution is given to the members of religious minority. For the aforesaid reasons I find no ground to refuse to consider the writ petition on merit.
12. Mr. Sinha, attached the validity of annexure 22 on a number of grounds. The two main grounds which are required to be noticed are that the inspection in 1983 the Managing Committee constituted in 1965 by annexure 1 amounted to interference with the right to manage the school by religious minority which is protected under Article 30 of the Constitution and that the order contained in annexure 22 was passed without giving any opportunity to the petitioner and, therefore, bad in law.
13. With regard to the first ground, on facts there is no dispute that the school was recognised on 12.7.1973 as an institution established and managed by a religious minority. It is also admitted that before it was so recognised, in 1965 by annexure 1 the President Board of Secondary Education, in exercise of the powers under Rule 30 of the 1964 Rules constituted a Managing Committee of which Kapoor Chand was the Secretary and Jaitendra Jain was the member of the Managing Committee, being the then principal of the school.
14. One of the controversies between the parties is whether after the school was recognised as a religious minority institution, the Managing Committee constituted in 1965 by Annexure 1 could be imposed by respondent No. 1 in 1983 as a Managing Committee of the school till the Managing Committee of the school was constituted under the constitution of the school and according to the provisions of 1981 Act. At the time of hearing Mr. H.N. Prasad conceded that in annexure 22 the provision of Section 18(3)(a) of 1961 Act was wrongly quoted and the correct provision would be Section 18(3)(j). We are, therefore, to find out whether the respondent No. 1 had any jurisdiction to constitute the Managing Committee for the school.
15. It is now beyond the pale of any controversy that Article 30(1) of the Constitution is absolute in terms and it is not made subject to any reasonable restrictions of the nature some of the other fundamental freedoms enumerated in Part III is subjected. All minorities, linguistic or religious, have by Article 30(1) as absolute right to establish and administer educational institutions of their choice ; any law or executive direction which seeks to infringe the substance of that right would be to that extent void. But this freedom cannot be used as freedom to formal administration. This right is, however, subject to the regulatory power of the States so that the right to administer may be better exercised for the benefit of the institution. But the moment one goes beyond that and imposes, what is in truth, not a mere regulation but an impairment of the right to administer, the Article comes into play and the interference cannot be justified on any ground. Reference may be made to the decision of the Constitution Bench of the Supreme Court in ( Lilly Kurian v. Sr. Lewina and Ors.
16. In State of Kerala v. V. Rev. Mother Provincial AIR 1979 SC 2079 the Supreme Court observed:
Administration means 'management of affairs' of the institution. This management must be free of control so that the founders or their nominees can run the institutions as they think fit, and in accordance with their ideas of how the interests of the community in general and the institution in particular will be best served. No part of the management can be taken away and vested in any body without encroachment upon the guarented right.
17. There cannot be any dispute that prior to 12.7.1973 the School was not recognised as religious minority institution aid, therefore, the protection of Article 30(1) of the Constitution was not available to the School. Respondent No. 1, therefore, or an authority under an enactment was entitled to interfere with the enactment of the School. Mr. Sinha did not contest this position and conceded that the respondent No. 1 was entitled to constitute the Managing Committee of the School before 12.7.1973 as was done by Annexure 1 in 1965. But could respondent No. 1 interfere with the management of the School on and from 12.7.1973 and in 1983 direct that the Managing Committee constituted in 1965 by respondent No. 1 would continue till the new Managing Committee was constituted within one year? The answer to this question must be given in the negative. Mr. Prasad contended that in view of Section 18(3)(j) of 1981 Act the State Government was competent to give direction from time to time to the school and the school was bound to comply it. It may be noticed that in this very clause it has been stated that the direction will be subject to the provisions of Articles 29 and 30 of the Constitution. Therefore whatever may be the power of the State Government in this regard, it cannot be held that power can be extended to an order by which it can impose a Managing Committee on the school protected under Article 30(1) of the Constitution. That part of the order in annexure 22, therefore, must be held to be hit by Article 30(1) of the Constitution and must be set aside.
18. By annexure 22 respondent No. 1 ordered that no approval of the termination of the services of respondent No. 5 be given. In 1981 Act, Section 18(3)(d) provides that by way of disciplinary action the Managing Committee may discharge or remove or dismiss a teacher with the approval of the school Service Board. The power of the Board is limited which appears from the proviso to Clause(d) which provides that if any disciplinary action is taken against a teacher, the Board at the time of approval would only enquire whether the Managing Committee followed the procedure prescribed in that regard before inflicting the punishment and shall not involve itself with any other matter. The order in annexure 22 with regard to respondent No. 5 was not passed by the School Service Board. The respondent No. 1, therefore, cannot be held to have any jurisdiction to pass any order with regard to respondent No. 5 as contained in annexure 22. It will thus appear from the different provisions made in Section 18 of 1981 Act, (this Section deals with Secondary Schools declared as minority institutions) that the legislature was conscious of Articles 29 and 30 of the Constitution and of the law laid down by the Supreme Court with regard to the power of State in relation to such schools. Submissions of Mr. Prasad are contrary to the provisions of 1981 Act.
19. Ex facie from annexure 22 it appears that the order was passed without giving any reasonable opportunity to the petitioner. That being the position, besides that have been held above, the order cannot be sustained on this ground also.
20. The question arises that if the State Government was of the opinion that the Managing Committee was not constituted in terms of the Constitution of the school, was the State Government helpless? Section 18 (3)(a) of 1981 Act provides that for every recognised minority secondary school there shall be a Managing Committee which shall be a registered body under the Societies Registration Act, 1860 and there shall be a written constitution providing for constituting a Managing Committee and for its functioning. It is beyond controversy that a minority school has no fundamental right to get affiliation or recognisation, if it does not fulfil the requirement for such affiliation or recognisation. It is also beyond controversy that this provision in 1981 Act is regulatory in nature and cannot be said to invade the right of the petitioner to administer the school if the respondent No. 1 found that the Managing Committee of the school was not constituted according to the written constitution of the school, steps for its disaffiliation or derecognisation could be taken in accordance with law, but it had no power to constitute a Managing Committee for the school.
21. For all the aforesaid reasons, the writ petition must succeed. The application is, therefore, allowed at annexure 22 is quashed.