Arya Pratinidhi Sabha v. State Of Bihar — 1972 DIGILAW 165 (PAT)

Judgment Akbar Husain, J. 1. In this application we are concerned with the question as to whether the school known as "the Musaddi Lal Arya Kanya Uchtar Madhyamik Vidyalaya" at Mokamah (hereinafter referred to as "the school") is an educational institution within the meaning of Article 30 of the Constitution and whether the petitioners have the fundamental right to administer the same. 2. The material facts in this case are as follows:- - Petitioner No. 1 is a society registered under the Societies Registration Act and comprises of persons professing Arya Samaj faith who according to the petitioners are a religious minority within the meaning of Article 30 of the Constitution. Petitioner No. 2 is its President and petitioner No. 3 is the President of the School affiliated to the Arya Pratinidhi Sabha (petitioner No. 1) as also the President of the school. According to the petitioners, there are a number of schools including the School with which we are concerned in this case in the State of Bihar established by petitioner No. 1. It is said that this School was established on the 9th February, 1957 by the Arya Samaj, Mokamah on its own land donated for the purposes of constructing the school building for the propagation of Vedic literature and Dharma apart from the modern education to women and girls of the locality on the basis of the lines and ideals of Maharishi Swami Dayanand Sarashwati, the founder of the Arya Samaj. The school was originally established up to the middle class standard and the local Arya Samaj felt the need of the locality for a full fledged girls high school. A conference of the Arya Samaj Mokamah was held in February, 1957 from 8th February to 11th February, 1957, and it was decided therein to contribute 10 kathas of land and raise sufficient funds for the construction of the building of the School by and on behalf of the Arya Samaj. The Arya Samaj consequently constructed the building of the School on its own land situated in Chauk Bazar Mokamah with the funds raised by contribution of the people professing the Arya Samaj faith as well as the contributions of the local people. The Arya Samaj consequently constructed the building of the School on its own land situated in Chauk Bazar Mokamah with the funds raised by contribution of the people professing the Arya Samaj faith as well as the contributions of the local people. The school was managed and administered by a managing committee appointed by the Arya Samaj and the petitioners in accordance with the constitution of the Arya Pratinidhi Sabha (petitioner No. 1), a copy of which is made Annexure 1 to this application. It is alleged that the aforesaid constitution showed the name of Arya Samaj as its founder and provided for the managing committee of the school to be constituted with petitioner No. 3 and Sri Hari Charan Agrawal (life members) in recognition of their outstanding contributions, two representatives of petitioner No. 1, three representatives of the Arya Samaj Mokamah, two educationists of the locality and the Principal of the school as its members. The subdivisional education officer by his letter dated the 25th June 1960 appears to have recommended to the District Inspectress of Schools that the School run and administered by the Arya Samaj at Mokamah should be helped in its efforts (Annexure 2). On the 25th November, 1960, an application dated the 24th November, 1960 was filed by the Deputy Secretary of the school through the Inspectress of Schools. Patna, to the Secretary Board of Secondary Education Bihar, Patna (Annexure 3) for the recognition of the school as also for permission to start classes VIII and IX, and it was stated that the school was established, run and administered by the Arya Samaj. It also contained the names of the members of the managing committee of the school formed in accordance with the constitution of the school (Annexure 1). The recognition was granted and tihe constitution of the managing committee, mentioned above, was approved by the Secretary of the Board of Secondary Education Bihar, Patna. It is contended that the said managing committee continued to function without any interference by the authorities of the Board of Secondary Education even when the Bihar High Schools (Constitution. Powers and Functions of the Managing Committee) Rules 1964, came into force. It is alleged that suddenly an order dated the 26th May, 1969, of the District Inspector of Schools. It is contended that the said managing committee continued to function without any interference by the authorities of the Board of Secondary Education even when the Bihar High Schools (Constitution. Powers and Functions of the Managing Committee) Rules 1964, came into force. It is alleged that suddenly an order dated the 26th May, 1969, of the District Inspector of Schools. Patna was passed by which petitioner No. 3 was directed to take charge of the managing committee of the School in accordance with Circular No. 1158 dated the 22nd May, 1969, as the President, the Secretary and the sole member of the ad hoc managing committee of the School. This order is Annexure 4 to this writ application. Thereafter on the 28th June, 1969, the District Inspectress of Schools. Patna, sent another letter to the Principal of the school with its copy to the persons named therein to hold a meeting at 5 p. m. on the 11th July, 1969 for the election of the guardians representatives which is Annexure 5 to this application. These are the two Annexures which are under challenge in this writ application as being in violation of the provisions contained in Article 30 of the Constitution. Petitioner No. 3 appears to have taken charge of the management and administration of the School on the 6th July, 1969, in pursuance of the order dated the 26th May, 1969 (Annexure 4). It is said that petitioner No. 3 consulted petitioner No. 2, the President of the Arya Pratinidhi Sabha of the State of Bihar, in respect of the implications of the orders contained in Annexures 4 and 5, on whose advise, the petitioners finally decided to move this Court for an appropriate writ for restraining the respondents from interfering with the petitioners right to administer and manage the affairs of the school in accordance with its constitution (Annexure 1). On these facts the petitioners have endeavoured to question the legality of the orders contained in Annexures 4 and 5. 3. On behalf of respondent No. 3, who is the Secretary of the Board of Secondary Education Patna, and responsible for the impugned orders, a counter-affidavit controverting questions of facts in material details has been filed. The stand taken by the petitioners briefly stated is as follows:- - The said school, according to respondent No. 3. 3. On behalf of respondent No. 3, who is the Secretary of the Board of Secondary Education Patna, and responsible for the impugned orders, a counter-affidavit controverting questions of facts in material details has been filed. The stand taken by the petitioners briefly stated is as follows:- - The said school, according to respondent No. 3. was started by the local people to meet the growing need of female education in the year 1961, in sup- port of which a letter dated the 30th March, 1961 from the Secretary of the said School has been annexed as Annexure A-3 to this counter-affidavit. It is said that in 1962, the Government of Bihar, Education Department was pleased to sanction recurring and non-recurring expenditure for the establishment of a State subsidised Girls Higher Secondary School at Mokamah (vide Government Ord er No. 1667 dated the 7th November, 1962). Thereafter the Managing Committee of the proposed Musadi Lal Arya Kanya Higher Secondary School, passed a resolution in its meeting held on the 1st Octo-ber, 1963 to hand over the building of the School to the Government for establishment a State Subsidised Girls Secondary School on condition that the School should be named as "Musadi Lal Arya Kanva State Subsidised Higher Secondary School", and the committee further resolved that except naming the School as such, the Government may take all necessary action for the management of the school. The letter bearing No. 58 dated the 23 September, 1963. from the Secretary of the proposed Musadi Lal Arya Kanya Higher Secondary School in Annexure B-3 to this counter-affidavit. By the aforesaid letter, Haricharan Agrawal the Secretary of the School, on his behalf and on behalf of the managing committee of the School delivered the entire management of the institution in the hands of the Government and further said that the constitution of the managing committee would be governed by the rules framed by the Government and the Arya Samaj will have no control over it, if the condition for the naming of the school as "Musadi Lal Arya Kanya State Subsidised Higher Secondary School" was accepted by the Education Department. It also gave a list of properties of the proposed school to be made available to the Government. On the basis of Annexure A-3 it is said that the School was established in the year 1961. It also gave a list of properties of the proposed school to be made available to the Government. On the basis of Annexure A-3 it is said that the School was established in the year 1961. At any rate on the application contained in Annexure 3 to the writ petition praying for permission for opening of classes VIII end IX from January, 1961, recognition was granted for the above two classes with effect from the 1st April, 1964 by en order of the Board of Secondary Education, Bihar through letter No. 2811 dated the 15th June, 1964, on certain conditions; one of which was to get the managing committee, constituted in accordance with the new rules. It is contended that the school was established by the local people and later it was converted into a State Subsidised Higher Secondary School with the consent of its the then management and the question that the properties of the School belonged to Arya Samaj has no foundation. It is said that in view of the fact that the managing committee of the said School could not be constituted in accordance with the Bihar High School Rules of 1964, as amended by the State Legislature within the period specified under Rule 37 of the said Rules, the existing managing committee automatically came to an end under Rule 38 of the said Rules, with effect from the 24th May, 1969, and, therefore, the Board of Secondary Education issued a notification appointing the existing President of the out-going committee of all such schools where the constitution of the managing committee could not be constituted in accordance with the new rules up to the 23rd May, 1969, to exercise and perform the powers of the managing committee, its president and secretary till the reconstitution of the managing committee. It is further denied in paragraph 13 of the counter-affidavit of the Secretary of the Board of Secondary Education (respondent No. 3) that the teaching was imparted in accordance with the Vedic culture and religion, or that Hawan and Vedic prayers are offered in this school. It is also said that the properties of the school did not vest in Arya Sarnai. The school, on the other hand was State Subsidised Girls Higher Secondary School, and the entire deficit was met by the Government. 4. Learned counsel Mr. It is also said that the properties of the school did not vest in Arya Sarnai. The school, on the other hand was State Subsidised Girls Higher Secondary School, and the entire deficit was met by the Government. 4. Learned counsel Mr. Prabha Shankar Mishra appearing on behalf of the petitioners has very vehemently argued that the school with which we are concerned has really developed into its present form from the original institution established by the Arya Samaj on the 9th February 1957 and that being so the petitioners are entitled to press the protection to which they are entitled under Articles 29 and 30 of the Constitution. Mr. Mishra has cited a number of decisions in support of his proposition that the most relevant and determining factor for invoking the protection under Article 30 of the Constitution is the fact of the establishing of an educational institution by a religious or linguistic minority. For this purpose, he has particularly relied on Annexure 1, the constitution of the school, the letter of the Subdivisional Education Officer to the District Education Officer (Annexure 2) and the application for recognition by the Secretary of the School to the Secretary of the Board of Secondary Education Bihar, Patna (Annexure 3). In addition to the above, Mr. Mishra has also relied on Annexure B-3 of the counter-affidavit which is the same as Annexure F to the ap-plication filed by the interveners. Annexure B-3 is the letter in reply to Annexure F to the interveners petition which is a letter by the Deputy Director Education (Girls) Bihar written to Hari Charan Agrawal, the Secretary of the School. Mr. Mishra is connecting these two letters to show that Hari Charan Agarwal purported to surrender the right of the Arya Samaj by means of the resolution of the managing committee (An-nexure D) claimed to be signed by one Bindeshwari Prasad Verma a member of the managing committee. It is argued that these two documents clearly show that the School was established by the Arya Samaj and even though the resolution contained in Annexure D to the interveners application and the letter (Annexure B-3 to the counter-affidavit) may be to the effect of surrendering the rights of the Arya Samaj, such surrender has no effect in the eye of law and these two documents strengthen the contention that the School was established by the Arya Samaj. 5. 5. It is further suggested that the application by Sri Narayan Shashtri, Deputy Secretary of the School to the Secretary Board of Secondary Education Bihar dated the 24th November 1960 for recognition (Annexure - 3) and the letter by the Secretary of the School to the Secretary, Board of Secondary Education, Bihar, dated the 20th May, 1961 (Annexure A-3) are substantially the same in every material particular including the list of members of the managing committee and the properties of the school Mr. Mishra has further contended that even the statements made in Annexure B-3 will show that the well, the library and the building etc. belonged to the Arya Samaj, and on these documents contained in Annexures 1, 2, 3, A-3 and even B-3, it will be evident that the school which existed in the year 1960 was established by the Arya Samaj in the year 1957. In this manner it is asserted that the school is owned and managed by the Arya Samaj, and, therefore, entitled to being administered by the Arya Samaj which really established the school. 6. The cases on which Mr. Mishra placed reliance are AIR 1963 SC 540 ; AIR 1968 SC 662 ; AIR 1969 SC 465 and AIR 1970 SC 259 . While dealing with the scope of Article 30 of the Constitution in the case of Sidhrajbhai Sahbai V/s. State of Guiarat ( AIR 1963 SC 540 ), their Lordships of the Supreme Court held that the right established by Article 30 (1) of the Constitution was intended to be a real right for the protection of the minority In the matter of setting up of educational institutions of their own choice, and in that case the petitioners were undisputedly the founders of the training college, in the State of Gujarat known as "Mary Brown Memorial Training College", at Borsad, district Kaira, and that being so, the imposition of Rule 5 (2) of the Rules for Primary Training Colleges and Rules 11 and 14 for recognition of Private Training institutions in so far as they relate to reservation of seats was held to be in infringement of the fundamental right guaranteed to the petitioners under Article 30 (1) of the Constitution. Similarly on the case of S. Azeez Basha V/s. Union of India, ( AIR 1968 SC 662 ), it has been held that "as the Aligarh University was neither established nor administered by the Muslim minority there is no question of any amendment to the 1920 Act made by the Amending Acts of 1951 and 1965 being unconstitutional under Article 30 (1) for that Article does not apply at all to the Aligarh University". In the case of Father W. Proost V/s. State of Bihar, ( AIR 1969 SC 465 ), it was held that the width of Article 30 (1) of the Constitution cannot be cut down by introducing in it considerations on which Article 29 (1) is based. The latter Article is a general protection which, is given to minorities to conserve their language, script or culture. The former is a special right to minorities to establish educational institutions of their choice. This choice is not limited to institution seeking to conserve, language, script or culture and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities. That is a circumstance irrelevant for the application of Article 30 (1) since no such limitation is expressed and none can be implied. The (two articles create two separate rights although it is possible that they may meet on a given case. Similarly in the case of S. K. Patro V/s. State of Bihar, ( AIR 1970 SC 259 ), the orders passed by the education authorities were declared as invalid and it was held that the fact that funds were obtained from the United Kingdom for assisting in setting up and developing the school or that the management of the institution was carried on by some persons who may not have been born in India was not a ground for denying the protection of Article 30 (1). Thus the ratio of all these cases is that the most important and material factor to attract the provisions of Article 30 of the Constitution is the question of the establishing of the institution by the religious or linguistic minority. 7. Thus the ratio of all these cases is that the most important and material factor to attract the provisions of Article 30 of the Constitution is the question of the establishing of the institution by the religious or linguistic minority. 7. In the instant case, therefore, the real fact to ascertain on the materials on the record is as to whether the Samaj had, in fact, established the school which got recognition on the basis of the application filed in 1960 (Annexure 3). The main document on which reliance is placed by Mr. Mishra on behalf of the petitioners to prove the fact that the samaj had established the school with which we are concerned, are contained in Annexures 1, 2 and 3, which I have already referred to above in detail. It is contended that the contents of Annexure 3 la respect of the details of the properties are the same as of the properties given in Annexure A-3. The other contention is that the aforesaid Annexure 2 clearly shows that the school in existence was proposed to be raised to the status of a Girls High School on the contribution of Hari Charan Agrawal, which came for the construction of same building in which the School was running. Further more neither the contribution from the notified Area Committee to the School nor that of Hari Charan Agrawal altered the character of the School. The contents of Annexure A-1 cannot be read independent of either Annexure A-3 or Annexure B-3, Annexure A-1 is the resolution of the managing committee of the School which is the same document as contained in Annexure D to which I shall refer later. He has strongly contended that even though the school may have become a subsidised school, the rules applicable to such schools will not hold good for this school. Similarly, the document of transfer contained in Annexure G dated the 5th February -1965 and the resolutions of the managing committee accenting the donations from Hari Charan Agarwal and Govind Agrawal dated the 7th February 1965 (Annexures K and L) and the declaration of life members on the basis of those resolutions contained in Annexures A and B, will not affect the character of the school. Mr. Mr. Mishra has further contended that there cannot be a surrender of a right guaranteed under Articles 29 and 30 of the Constitution by any act of either the Secretary of the school or the managing committee thereof, and therefore, none of the documents referred to above from which an inference of such surrender can be drawn, will be of any assistance to the respondents. The question as to whether the instant school was established by the Arya Samaj or not will have to be answered by examining all the materials on the record which either affirm or repel the contentions advanced in support of the application. 8. At this stage I may refer to paragraph 4 of the counter-affidavit filed on behalf of respondent No. 3 the Secretary. Board of Secondary Education. The stand taken about the establishment of the school is in the following terms:- - "The true fact is that the said school was started by the local people to meet the growing need of female education in the locality in the year 1961. A true copy of letter No. 51 dated 30-3-1961 from the Secretary, Proposed Musadi Lal Arya Kanya Higher Secondary School. Mokatnah to this effect is annexed herewith as Annexure A-3". The aforementioned document (Annexure A-3) is a letter from the Secretary of the School to the Secretary. Board of Secondary Education. Bihar dated the 20th May 1961 regarding recognition. The contents of the first paragraph of Annexure A-3 are as under:- - "That the public of Mokamah felt extreme necessity for a High School for female education since long. Though there are three schools running in the different part of the town where some of the people do not desire to set, admitted their girls for education as the School is meant for boys education. Seeing the long felt desire of the public a proposed High School, has been started at Mokamah for female education only since the year 1961". It is, therefore, evident that this school Was started at Mokamah for female education in the year 1961 and in the face of the contents of Annexure A-3 quoted above, it is not possible to accept that the school with which we are concerned was established by the Samaj. It is, therefore, evident that this school Was started at Mokamah for female education in the year 1961 and in the face of the contents of Annexure A-3 quoted above, it is not possible to accept that the school with which we are concerned was established by the Samaj. The next document in this connection is a letter bearing No. 2811 dated the 15th June, 1984, from the Secretary Board of Higher Secondary Education Bihar, Patna (Annexure I) giving recognition of Classes VIII and IX, subject to certain conditions given therein. (LOCAL LANGUAGE) We may now refer to Annexure D which is a resolution of the School and is as follows:-- (LOCAL LANGUAGE) It is apparent, therefore, that the managers of this school were mainly interested in naming the school and had decided to make this School the State Subsidised School which for all practical purposes is like a constituent school of the Government. The responsibility for meeting the entire amount of deficit in running the school in such cases is with the Government, and, therefore it is subiect to the provisions of Rule 10 of Chapter II of the Bihar High Schools (Constitution, Powers and Functions of Managing Committee) Rules 1964, and there can be no question of any claim to protection under Article 30 of the Constitution in such cases. Rule 10 is in the following term: "10. Appointment of the President and the Secretary of the Managing Committee of a subsidised school and the term of their offices-- (1) The Secretary of Managing Committee of a subsidised school shall be nominated by the President of the Board of the Secondary Education from amongst the members of the Committee or from outside as he deems fit". 9. I may at this stage observe that respondents Nos. 5 and 6 were added as party respondents to this application by an order of this Court on their application under Order 1. Rule 10 of the Code of Civil Procedure and under Rule 5 of Chapter XXV-C of the High Court Rules. In this application respondent No. 5 Hari Charan Agarwal is applicant No. 1. He has donated a sum of Rs. Rule 10 of the Code of Civil Procedure and under Rule 5 of Chapter XXV-C of the High Court Rules. In this application respondent No. 5 Hari Charan Agarwal is applicant No. 1. He has donated a sum of Rs. 10,000.00 for the construction of the building of the School and he has been the Secretary of the Managing Committee of the School till the 6th July, 1969, when the powers and duties of the Secretary were handed over to the President of the Committee under the orders of the Secretary Board of Secondary Education, Bihar. Patna (respondent No. 3). Respondent No. 6 is applicant No. 2 in this application and he is a man interested in social welfare work and is also the Vice-president of the Arya Samaj. He was selected as guardianship member to the School since the 11th July, 1969 by the Board under Rule 6 of the 1969 Rules. These respondents have made very positive statement about the establishment of the school in paragraphs 7 end 8 of their application as under:- - "7. That as the petitioners in the writ petition want to show that the said school is managed and controlled by Arya Samaj Mokamah, the interest of the applicants in individual capacity and as the representative of the public is affected, because the school is not the property of anv association or society but it has been started bv the general mass of the public and is controlled by the Government through the Bihar State Secondary Board. 8. That the school was not established by any Arya Samaj or any other Samaj or society, but it was established by the general public of Mokamah and the applicants took much, more interest along with other persons". It is further stated in paragraphs 4 and 5 of the supplementary affidavit of respondents Nos. 5 and 6 that Hari Charan Agarwal and Govind Agarwal son of the aforesaid, donated Rs. 30,000.00 and Rs. 5,000.00 respectively to the school. It is further stated in paragraphs 4 and 5 of the supplementary affidavit of respondents Nos. 5 and 6 that Hari Charan Agarwal and Govind Agarwal son of the aforesaid, donated Rs. 30,000.00 and Rs. 5,000.00 respectively to the school. In this connection resolutions dated the 7th February, 1965 contained in Annexures K and L of the supplementary affidavit of these respondents and Annexures A and B of the main application of respondents 5 and 6 under Order 1, Rule 10 of the Code of Civil Procedure dated the 6th August, 1969 may be usefully quoted as under:- - (LOCAL LANGUAGE) Thus before respondent No. 3 began to control the administration of the School, donations were raised by the people of the locality in general, and amongst them the Arya Samaj was also one of the contributors in the shape of donation of land, Respondent No. 5 and his son Govind Agrawal were the highest donors. In paragraph 23 of the application of respondents Nos. 5 and 6, it is stated as follows:- - "............The school which was running of 9-2-1957 and about which the petitioners are mentioning in their writ petition is Upper Primary Arya Kanya School which is controlled under the notified Area Committee. Mokamah........" Similarly, in the supplementary affidavit filed by respondents Nos. 5 and 6 it is stated that there has been donation of Ganga Prasad also as is evidenced by the resolution dated the 7th February, 1965 (Annexure M), which is as follows: (LOCAL LANGUAGE) There is yet another very important feature and circumstance indicative of the character of the School and that is the donation of Rs. 5,400.00 from the Notified Area Committee. Mokamah, specifically stated in the letter written by the Secretary of the Musaddi Lal Arya Kanva School. Mokamah to the Secretary. Board of Secondary Education Patna dated the 24th November, 1960 (Annexure 3 to the writ application), the relevant portion of which is as follows : (LOCAL LANGUAGE) With this background, there is no scape from the conclusion that even as far back as the 24th November, 1960, the Secretary of Musaddi Lal Arya Kanya Vidyalaya Mokamah, was addressing the letter (Annexure 3) to the Secretary, Board of Secondary Education, that the Notified Area Committee. Mokamah, had given financial assistance for the purposes of the school, and in this view of the matter and on these facts. Mokamah, had given financial assistance for the purposes of the school, and in this view of the matter and on these facts. It cannot be said that the Samaj which had established the school, although the Samaj like many other donors may have been very en-thusiastic element in the establishment of the institution. Then again we have Annexure B-3 already referred to above. This is a letter from Hari Charan Agarwal in reply to Annexure F. (a letter from the Deputy Director of Education (Girls) Bihar) which makes it clear that in spite of whatever interest the Samaj might have taken in this school, it was not prepared to manage and administer it as a minority school and that being so the contention advance ed by Sri Mishra is not tenable on the facts of this case. The learned standing counsel has drawn our attention to another document contained in Annexure G which is of the 5th February, 1965. This is a deed of transfer by the Secretary of the Samaj in favour of the School. By this document the land on which the School stood was conveyed by the Samaj to the School. It is, therefore, evident that this School for the recognition of which the application (Annexure A-3) was filed and for which the deed of transfer mentioned above was executed, was established in the year 1961 and therefore, When it became converted into a State Subsidised Higher Secondary School with the consent of its the then managers, naturally the provisions of Rule 37 of tile 1964 Rules applied, for the constitution of the Managing Committee and when the existing Managing Committee automatically ceased to exist with effect from the 24th May, 1969, under the provisions of Rule 39, the President. Board of Secondary Education issued Notifications appointing the existing Presidents where the Managing Committee was not constituted in accordance with the rule up to the 23rd May, 1969. Rules 37 and 39 referred to above are as follows:- - "37. For each school a Managing Committee shall be constituted in accordance with, these rules within a period of two years from the date of publication of these rules in the official Gazette". "39. Where a Managing Committee is not constituted, in accordance with these rules, within the period specified in Rule 37, the powers and duties of the Managing Committee. For each school a Managing Committee shall be constituted in accordance with, these rules within a period of two years from the date of publication of these rules in the official Gazette". "39. Where a Managing Committee is not constituted, in accordance with these rules, within the period specified in Rule 37, the powers and duties of the Managing Committee. President and Secretary shall, until its constitution in accordance therewith be exercised and performed by such person as may be appointed by the President of the Board of Secondary Education for the purpose". In this context certain other facts are also significant. The deed of transfer is Annexure G executed on the 5th February, 1965. On the 7th February, 1965, the resolution of the Managing committee was passed, the reference of which is made in the supplementary affidavit filed on behalf of respondents Nos. 5 and 6 and where in paragraphs 4 and 5 the names of the persons who were present on the 7th February 1965, is given. On the 11th February, 1965, the declaration of life members under Rule 6 of Rules, 1964 has been made. The aforesaid steps were taken in pursuance of the conditions imposed under Annexure I dated the 15th June, 1964. It is, therefore, clear that the managing committee itself treated this school as having been established in the year 1961, and that is conclusively evidenced by Annexure A-3 itself, a reference of which has already been made be-fore. There is also complete silence in Annexure A-3 as to who established the School in 1961. It is, therefore, clear that on the facts and materials on record, it will not be possible to hold that the School for the recognition of which the application (Annexure A-3) was filed, was established by the Samaj. Even assuming that the Samaj was the most effective sponsor of this School and even if some link is discernible between the school established in 1957 by the Samaj and the School with which we are concerned, it will not be possible to hold that on facts the Musaddi Lal Arya Kanya Uchater Madhyamik Vidyalaya at Mokamah was established by the Samaj, 10. Mr. Mishra relying on the authority of a Supreme Court decision regarding Kerala Education Bill 1957. Mr. Mishra relying on the authority of a Supreme Court decision regarding Kerala Education Bill 1957. ( AIR 1958 SC 956 ), canvassed the point that any act on the part of the Secretary or that of the Managing Committee or any of its members amounting to surrender of its fundamental rights, will not extinguish the right, and that being so this fundamental right can always be exercised under the guarantee of the Constitution. The relevant portion of the judgment is as follows:- - ".........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 scholors who resort to their educational institutions. There is no doubt on such thing as fundamental right to recognition by the State but to deny re-cognition 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 (i). 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.........". Having regard to the nature of the right conferred by Article 30 of the Constitution, this submission, in my opinion is not valid. It is one thing to say that the cultural and educational rights embodied in Article 30 to establish and administer educational institutions of their choice are fundamental and guaranteed by the Constitution and, therefore, not subject to surrender or legislative control, but it is quite another thing to contend that in all cases, the minorities are obliged to exercise that right even though on account of exigencies of the situation they may decide otherwise. In the instant case, it appears that whatever may have been the position in 1957, in respect of the School which may have been established by the Arya Samaj, the Managers of the school gradually decided to allow the school to receive the benefit and patronage of the notified area committee and later on by permitting the school to be converted into a Government Subsidised School. They decided not to manage and administer the school as a minority school and this surely is a discretion which they were competent to exercise and is not at all in conflict with the guarantee and protection given by the provisions of Articles 29 and 30 of the Constitution. It is therefore, clear that on the facts of this case, the school which was established in the Year 1961 and later on converted into a Government Subsidised School, cannot be said to have been established by the Samaj and that being, so naturally the protection under Article 30 of the Constitution is not available to the Arya Samaj. 11 For the reasons stated above, there is no merit in this application, and it is, accordingly, dismissed, but in the circumstances of the case, there will be no order as to costs. N.L.Untwalia, J. 12 I agree.