Orissa High Court
Managing Committee, Baptist Church ... vs State Of Orissa And Ors. on 22 December, 1987
Equivalent citations: AIR1988ORI250, AIR 1988 ORISSA 250, (1988) 1 ORISSA LR 322
Author: G.B. Patnaik
Bench: G.B. Patnaik
JUDGMENT L. Rath, J.
1. The Managing Committee of the Baptist Church Middle English School and the Oriya Baptist Church, Berhampur are the petitioners challenging the order dt. 29-12-81 (Annexure-A) of the District Inspector of Schools, Berhampur Circle constituting the managing committee of the school under Rule 3( 1) of the Orissa Education (Management of Private Schools) Rules, 1980 (Second Amendment Rules, 1981) and for direction that the managing committee be constituted with the consent and assistance of the petitioners with a further prayer for issue of a writ directing the opposite parties not to interfere in any manner with the functioning of the school of the minority community and to give grant-in-aid to the school without discrimination, or in the alternative to constitute the managing committee of the school in accordance with its own constitution.
2. The crux of the case of the petitioners is that the school is a minority institution the managing committee of which is constituted in accordance with the constitution adopted for it on 12-8-47 by the Oriya Baptist Church, Berhampur, petitioner No. 2, which maintains the school and under the constitution is its recognised manager. It is contended that the school being in dire financial difficulty and further since a decision had been taken by the Government on 12-6-74 for excluding institutions run by minority communities from the benefit of direct payment of teachers' salary and cent per cent D. A. in full, the 'management of the school had to adopt a stand of the managing committee being constituted under Articles 286 and 306 of the Orissa Education Code and petitioner No. 2 as not having any financial commitment for the school, with a view to persuade the State Government to come forward and include the school in the fold of direct payment scheme. The Government however did never make available the desired grant. The institution, according to the petitioners, has always continued as a minority institution and hence the impugned action of the District Inspector of Schools is liable to be set aside and the petitioners are entitled to the reliefs as claimed.
3. In the two counter-affidavits filed by the State while it is not disputed that the institution was a minority one and indeed very many documents filed on either side vouchsafe the fact of acknowledgement by the State of the institution as having such character, yet it is contended that it is no more a minority institution and that the managing committee had stood dissolved from 16-1-80 after which the committee has been constituted by the Government. It is claimed that the land and the school building thus belong to the Government.
4. It may be possible, though Mr. R. Mohanty, learned counsel appearing for the petitioners even combats the same, that an institution which was originally established and managed by a minority community may of its own free will give up certain rights otherwise available to it for benefits to be obtained in lieu thereof. The matter engaged the attention of the Supreme Court in AIR 1974 SC 1389, Ahmedabad St. Xaviers College Socy. v. State of Gujarat, wherein Justice M. H. Beg observed :
"Turning to the first and the morecomplex question, I think it is difficult to answer the argument of the Additional Solicitor General, appearing on behalf of the State of Gujarat, that, where a minority institution has, of its own free will, opted for affiliation under the terms of a statute, it must be deemed to have chosen to give up, as a price for the benefits resulting from affiliation, the exercise of certain rights which may, in another context, appear to be unwarranted impairments of its fundamental rights."
Though however it may be open to the minority institution to forego some of its rights as above, it will be a completely different thing to say that the entire minority character of the institution can be abandoned and that pleas of waiver and estoppel would be available to the Government to claim the institution of having ceased to be a minority one. The rights under Article 30 are fundamental rights in Chapter III of the Constitution. As against the plea of waiver of the fundamental right founded upon a concession of the institution but subsequently retracted, it was observed by Justice Krishna Iyer in AIR 1975 SC 1821, Gandhi Faiz-e-am College, Shahjahanpur v. University of Agra :
"If reliance had been placed by the University on this concession of the Management as amounting to a waiver of the fundamental right, thereby making short shrift of the dispute, it would have been difficult for us to accede to the plea. Indeed, wisely no plea of waiver of the fundamental right has been put forward and perhaps none can be, in this branch of constitutional jurisprudence. We are therefore concerned with discerning the parameter of 'minority' right in Article 30."
The observations were also relied on in AIR 1980 Goa 1, Monte de Guirim Educational Socy. v. Union of India, holding that there can be neither an estoppel against law nor waiver of fundamental right guaranteed under the Constitution. Indeed, in AIR 1987 SC 311, Frank Anthony Public School Employees' Association v. Union of India, it was emphatically observed :
".........If one thing is clear, it is this that the Fundamental Right guaranteed by Art. 30(1) cannot be surrendered, wholly or partly, and the authorities cannot make the grant of aid conditional on the surrender of a part of the Fundamental Right........"
In view of such position of law it would be difficult to accede to the claim of the Government that the petitioner-institution though admittedly a minority one ceased to be so by the voluntary action of its management, since the fundamental right is vested in the community itself which has established it and has a right to administer it and such right cannot be abandoned by the managing committee.
5. Even otherwise I do not face any difficulty in coming to the "conclusion that there was no unconditional surrender by the petitioners of the school to the care of the Government with a further commitment not to claim it as a minority institution. From the documents placed on record it appears that on 12-6-74 Government took a decision vide letter communicated to the Director of Public Instruction (Higher Education), Orissa and the Director of Public Instruction (Schools), Orissa that pending final decision regarding direct payment of full teachers' costs, Government had decided to make immediate payment of full salary and 100% D.A. for the past three months to the teachers serving in aided non-Government colleges, high schools and M. E. Schools which were then receiving grants-in-aid at full deficit or 2/3rd or 3/4th rate, but that the decision would exclude the educational institutions under the control of the local bodies, corporate bodies and those run by minority communities and that they would continue to receive grant-in-aid only under the existing rules. This was followed by a letter of the Joint Director of Public Instruction (Schools), Orissa dt. 18-5-76 to the D. I. of Schools regarding financial conditions of the Baptist Church M. E. School that the institution being a mission managed one, the direct payment of full teachers' cost cannot be introduced and that in order to move the Government for sanction of grant-in-aid on full not deficit basis, the institution should be free from all liabilities and encumbrances. A similar decision was also again communicated to the shcool as regards its financial condition by a letter of the Additional Director, Public Instruction (Schools), Orissa dt. 31-3-77 to the District Inspector of Schools, Berhampur. In view of such decisions, a resolution was passed by the school with reference to the letter of the Joint D.P.I. dt. 18-5-76 and that of the Additional D.P.I. dt. 31-3-77 that in view of the difficulties being felt by the educational authorities to either give full deficit to the school or to make direct payment of salary ossa Education Code like other educational institutions and that it is not managed by the Baptist Church or the Christian Community. It seems that petitioner No. 1 requested petitioner No. 2 to execute a deed to commit that the school building would be used for the next twenty years only for the purpose of the school and in pursuance of such request a resolution was passed by petitioner No. 2 on 31-5-77 that the land on which the school stands had been allotted to the school since 1932 and hence there was no need to execute a further deed. A further letter was also addressed by the school on 7-7-77 to the Additional Director of Public Instruction (Schools) with reference to the decisions of Government on 12-6-74 and 18-5-76 that the school was managed solely by a managing committee formed and approved under the Orissa Education Act and also informing about the resolution passed by the petitioner No. 2 of its having no financial commitment in the management of the school, and on such basis pleading that the school cannot be excluded from receiving direct payment or full deficit grant, it being not under the control of the local bodies, corporate bodies or minority communities. It is apparent that the entire purpose of passing such a resolution and communication to the Government was for the purpose of availing the benefit of full deficit grant or direct payment to the staff which was being otherwise denied to it. The stand of the Government to exclude minority institutions from full grant was itself not in accordance with Article 30(2) of the Constitution which enjoins a mandate that there shall be no discrimination in grant-in-aid to educational institutions, only upon the footing that it is under the management of a minority community. Petitioner No. 2 also clarified the position in a letter to the Inspector of Schools, Ganjam Circle, Berhampuron 30-5-79 explaining about its resolution of 31-5-77 of having no financial commitment in the management of the school as having been passed only with the hope that Government would make direct payment of salary to the teachers and stating that in spite of such resolution the Church was contributing regular financial assistance to the school. It was also informed that by a resolution passed on 18-9-79 the petitioner No. 2 had resolved to meet l/3rd of the deficit of the school. Thereafter a resolution was passed by petitioner No. 1 on 8-12-79 referring to the acute financial condition of the school stating that all their efforts to persuade Government to make direct payment to the staff had not been successful for which it may be necessary to close down the institution unless the Government comes to its rescue to save the hundered years' old institution and that the institution be taken either to the direct fold of Government organisations along with its assets and staff or in the alternative it would decide the possibility of handing over the school to the Christian community. In the resolution it was further stated that unless any communication was received from the Government by 15th Jan., 1980, it would be taken that the managing committee stood dissolved from 16th Jan., 1980. Even after this, no response was made by Government, neither the school was taken over nor the full deficit was met and only a letter was addressed by the Deputy Secretary to Government on 8-12-80 to the Director of Public Instruction (Schools), Orissa that the school was running as a minority institution by the Mission, of which the managing committee was defunct and that the institution had lost its minority character and that steps be taken to reconstitute the managing committee so as to furnish compliance to the Government for sanction of full grant-in-aid and introduction of direct payment system in respect of the institution. A letter was addressed on 16th, Sept., 1981 by petitioner No. 1 to the Director of Public Instruction (Schools) asserting the institution as a minority one, the minority community having absolute power to administer the same and that there could not be any discrimination regarding payment of grant-in-aid. Nothing further was done and it was on 29-12-81 that the impugned managing committee as in Annexure-A was formed, which, the petitioner asserts, has also not functioned since three members of it, i.e. the Secretary himself and other two members belonging to the Christian community, refused to act as its members.
6. The narration of the facts as above would unquestionably show that while the institution had been admittedly a minority one, yet being cornered by financial stringency and the decision of the Government to differentiate regarding the amount of grant-in-aid because of its character as a minority one, was compelled to give an impression to the Government of it not-being such an institution so as to ensure the continuity and enlargement of the aid. It could notbesaid to be a voluntary act of the petitioner at all and hence the claim of the opposite parties to assert any right in them to administer the institution and appoint a managing committee thereof can never be conceded. Even the resolution of the petitioner No. 1 on 8-12-79 of automatic dissolution of the managing committee on 16th Jan., 1980 unless any communication is made by the Government would not in any way alter the position since it at best would only leave the institution without a managing committee and which had to be reconstituted under its own constitution. In that view of the matter, it must be held that the institution continues as a minority one entitled to the protection of Article 30 which forbids any such action of the Government as has been purported to be done.
7. In view of the conclusions reached, it is clear that the constitution of the managing committee by the District Inspector of Schools on 29-12-81 is without authority and hence must be set aside. The power is stated to be exercised under Rule 3(1) of the Orissa Education (Management of the Private Schools) Rules, 1980. The rules are framed under the Orissa Education Act which excludes from its application institutions established and administered by minority communities having their rights protected under Article 30(1) of the Constitution. The rules thus could not be invoked to appoint a managing committee for the B.C.M.E. School, Berhampur. It is too well-settled in taw that even though regulatory measures can be made applicable to the institutions protected under Article 30(1), yet interference with the management in the shape of either taking over of the management or reconstitution of it in effect destroys the very guarantee under Article 30(1) and would beultravires of it. There can thus be no hesitation to strike down the. constitution of the managing committee as made in Annexure-A and such function must be left to the petitioners.
8. As regards sanction of grant-in-aid, it is the very provision of law that no discrimination can be made therein only on the ground of the institution being one managed by the minority community. It is however not called for in this case to issue any directions in that regard since we find that a decision has been taken by the State Government in its letter No. 8390/3-EYS dt. 28-2-1984 addressed to the Director of Secondary Education, Orissa regarding sanction of 100% financial assistances to the educational institutions managed by the minority communities deciding that the question of such sanction would be considered by the Government on certain conditions in respect of absence of practice of any discrimination relating to admission of students into such institutions, the selection of teachers by a committee with a Government representative and submission of the list of selected teachers to the Government for approval. In view of that, we do not think there is any impediment for the school to obtain grant-in-aid by satisfying the conditions and hence no direction is called for.
9. In the result, the petition is allowed, as discussed above, with costs and the constitution of the managing committee by the District Inspector of Schools on 29-12-1981 is set aside. Hearing fee is assessed at Rs. 250/-.
G.B. Patnaik, J.
10. I agree.