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1977 DIGILAW 237 (PAT)

Arya Pratinidhi Sabha v. State Of Bihar

1977-12-23

HARI LAL AGRAWAL, S.K.CHOUDHURI

body1977
Judgment Hari Lal Agarwal, J. 1. This writ application under Articles 226 and 227 of the Constitution of India has been filed for quashing the order contained in Memo No.4578-81, dated 21.9.1974 issued by the District Education Officer, dhanbad (Respondent no.2), a copy of which was forwarded to the Secretary, d. A. V. Middle School, Dhanbad, by the Headmaster of the said School under Memo no.2/74 dated 12.10.1974 (Annexure 5 to the writ application ). Wy the impugned order, the District Education Officer informed the Secretary that the school was nationalised and its teachers would get the new scale of pay from the month of September, 1974 and that the Secretary will have no control over the management of the school in question. 2. The case of the petitioner is that the School was run by an organisation of persons professing Arya Samaj faith, a religious minority within the meaning of Articles 29 and 30 of the Constitution and, therefore, the petitioners were entitled to administer the said educational institution which was established by them. I may now briefly state the relevant facts. 3. The first petitioner is Arya Pratinidhi Sabha, a registered Organisation of persons professing Arya Samaj faith. Petitioner no.2 is the President of the Sabha and petitioner no.3 is the Vice-President of the Dhanbad branch of the Sabha It is alleged by the petitioners that the Arya Pratinidhi Sabha has established several schools, including the school in question at Dhanbad, with a view to teach, among other subjects, the Vedic culture and to preserve and propagate the ideals of Vedas and Vedic Dharma. The school in question was originally started as a Harijan Pathshala. It was later on converted into a lower Primary School for boys and girls in the year 19 9 and was raised to the status of an upper Primary School in the year 1941 and then to a middle School in the year 1944. The school soon became very popular and (hereafter persons professing Arya Samaj faith also established a High School within its compound and named it as D. A. V. High School. The school in question is located in the Arya Samaj Mandir at Dhanband. The petitioners have traced the history as to how the people professing the Arya Samaj faith donated land and funds for the construction and establishment of Arya samaj temple and like institutions. The school in question is located in the Arya Samaj Mandir at Dhanband. The petitioners have traced the history as to how the people professing the Arya Samaj faith donated land and funds for the construction and establishment of Arya samaj temple and like institutions. It may be mentioned that the school has been receiving grants-in-aid from the State Governmem. It is claimed by the petitioners that all the properties of the School belong to and are vested in the Arya Pratinidhi Sabha and its management in a Managing committee duly constituted by the members of the local Arya Samaj. The petitioners further claim that besides teaching for conservation of Vedic culture, Vedic Prayers are offered by the students and teachers of the School everv day and Vedic hawan is performed every week in the Yajna Shala which is located in the premises of the School, which is a part of the school curriculum. It is said that earlier in the year 1966 also, the officers of the education Department tried to interfere with the administration of the High school and the petitioners had to file a writ application (C. W, J. C. no.321 of 1966) ia this court, in which they succeeded and the respondents were restrained from interferring with the rights of the peiitioners to administer the said High School by order, dated 6.12.67. 4. It appears that when the State Government took a decision to nationalise all the Middle Schools of the State sometime back, the Director of public Instruction (Elementary Education) cum Deputy Secretary, Education department by his letter no, 2440 dated 2.6.1972 gave a direction to the district Superintendents of Education as well as Sub-divisional Education officers, regarding the decision of the Government, which was announced on the floor of the Assembly on 8,6.1972 for nationalisation of the Middle schools. In the said letter, the aforesaid officers were also directed that even the Schools governed by the minority may also be taken over under the control of the Government if the concerned Managing Committee had no objection to the same and were agreeable to hand over the management unconditionally. A copy of the said letter of the Director Public Instructions was forwarded to the Secretary of the School in question by respondent no.4, which has been made Annexure 1 to the writ application. A copy of the said letter of the Director Public Instructions was forwarded to the Secretary of the School in question by respondent no.4, which has been made Annexure 1 to the writ application. In pursuance of the said letter (Annexure 1), a meeting of the local Committee of the Arya samaj was held on 18.7.1972 and it was decided that the teachers of the school may be allowed to receive salary according to the rules of the Education department, without any prejudice, however, to their right of administration of the School. A copy of the resolution adopted at the said meeting is Annexure 2 to the writ application. This meeting adopted four resolutions. Whereas by the first resolution, the Committee expressed its gratitude for improving the service conditions of the teachers of the School, by the second and third resolutions, it put forward specific conditions that all the teachings for conservation of Vedic culture, which were being imparted to the sludents of the school will be continued and no pressure would be exerted to introduce any activity contrary to them. It was further resolved that the building of the school would not be handed over to the Government. It is in these circumstance that the impugned order was issued by the District Education officer on 21.9.1974 slating therein that the teachers of the School would get the new scale of pay from the month of September, 1974 on the nationalisation of the school and taking over its management. The local Committee of the Arya Samaj as well as petitioner no.2 took objections to the above decision of the Government and protests were made with respondent no.2 indicating that interference by the Government in the management of the school could not be allowed. They also moved higher authorities, but having failed to get any amends, they have filed the present writ application and it has been claimed that the respondents have no right to interfere with the administration of the management of the School in question and a prayer has been made for quashing of the order as already said above. 5. In the counter-affidavit filed on behalf of the respondents it has been stated that contributions were also accepted by the petitioners from the general public of Dhanbad as well as from the guardians of the students for the construction and extension of the School buildings. 5. In the counter-affidavit filed on behalf of the respondents it has been stated that contributions were also accepted by the petitioners from the general public of Dhanbad as well as from the guardians of the students for the construction and extension of the School buildings. It is admitted in paragraph 9 of the counter-affidavit that there is a Yagnashala in the compound of the School, but it is in its outer section. It further states that the decision to take over the School was taken on the basis of the resolution of the Managing committee of the School, and inasmuch an the school was not declared as a minority School, the Department treated it just like any other school and the decision to take over was taken after completing due formalities and the take over was without any condition in view of the decision of the government. 6. In view of the rival contentions of the parties, it has to be seen as to whether the petitioners are entitled to any protection under Article 30. Articles 29 and 30 are grouped under the heading "caltural and Educational Rights".1 hese two Articles confer certain educational and cultural rights as fundamental rights, their purpose being to confer fundamental rights on certain sections of the Community constituting a minority community. As Article 29 (1) confers on any section of the citizens a right to conserve its own language, script or culture, it is obvious that a minority could effectively conserve its language, script and culture by and through educational institutions and, therefore, the right to establish institution of its choice" was a necessary concomitant to the right to conserve its distinctive language, script or culture" and that right was conferred on all minorities by Article 30 (1 ). 7. In the case of The Ahmedabad St. Xaviers College Society and another v. State of Gujarat and another ( AIR 1974 SC 1389 ), it was observed that Article 30 (1) provides that all religious and linguistic minorities have the right to establish and administer educational institutions of their choice and that Articles 29 and 30 confer four distinct rights. First is the right of any section of the resident citizens to conserve its own language, script or culture. First is the right of any section of the resident citizens to conserve its own language, script or culture. Second is the right of all religious and linguistic minorities to establish and administer educational institutions of their choice as mentioned in Article 30 (1 ). Third is the right of an educational institution not to be discriminated against in the matter of State aid on the ground that it is under the management of a religious or linguistic minority and fourth is the right of the citizen not to be denied admission into any State maintained or State aided educational institution on the ground of religion, caste, race or language, as mentioned in article 29 (2 ). A minority may, therefore, administer an institution for religious education which is wholly unconnected with any question of conserving a language, script or culture. 8. These rights have been specifically conferred under Part III, namely, "fundamental Rights" so that the majorities who can always have their rights by having proper legislation, dp not pass a legislation prohibiting minorities to assert and administer educational institutions of their choice. The whole object, therefore, of conferring this right is to ensure that there will be equality between the majority and the minority. 9. In the case of D. A. V. College, Bhatinda etc. V/s. The State of Punjab and others, ( AIR 1971 SC 1731 ), which was again a case of an educational institution founded by a Trust and Society registered under the Societies registration Act, as an association comprised of Arya Samaj is, like the petitioners, a question was raised whether the State of Punjab had any legislative competence to prescribe any particular medium of instructions, namely, Gurmukhi it was held that what constitutes a linguistic or religious minority must be judged in relation to the State inasmuch as the impugned act was a State Act and not in relation to the whole of India. In this view, it was held that Arya Samajis, who although were a part of the Hindu community in Punjab (who is majority in India) were religious minority and that they had distinct script of their own devanagri, which entitled them to invoke the guarantee under the aforesaid provision of the Constitution. In this view, it was held that Arya Samajis, who although were a part of the Hindu community in Punjab (who is majority in India) were religious minority and that they had distinct script of their own devanagri, which entitled them to invoke the guarantee under the aforesaid provision of the Constitution. This authority which was cited on behalf of the petitioners is, therefore, not of much assistance to us inasmuch as the complaint of the petitioners here is not based on account of invasion of their script. One thing, however, which is clear from the above decision is that the protection claimed by any religious denomination or a religious minority, whether as a linguistic or religious, must be judged in relation to the State concerned. Protection was afforded in that case on the ground that persons having Devanagri script constituted linguistic minority in the State of Punjab where Gurumukhi was the script of the majority. The petitioners, as already seen above, are claiming protection on the ground that they constitute a religious minority. 10. The fact that the persons professing the Arya Samaj faith are religious minority in the State of Bihar has been asserted by the petitioners in the writ application. In the counter-affidavit, this assertion has not been controverted. The petitioners also placed reliance upon a Bench decision of this Court in the case of Arya Pratinidhi Sabha and others V/s. The State of Bihar and others, (AIR 1958 Patna 359) in support of this claim. There a question arose as to whether a school for girls known as Dayanand Kanya vidyalaya in the town of Patna, which was also established by the persons of the Arya Samaj faith, was entitled to a protection under Article 30 and therefor, whether the Director of Public Instructions had any right to issue any direction to reconstitute the Managing Committee according to the resolution of the Government of Bihar and to appoint any person not being member of the Committee or could appoint Ad hoc Committee for such au institution. It was held by this Court that although it was open to the State government to impose regulations with regard to maintenance of discipline or standard or efficiency, or even to withdraw recognition or the grant-in-aid under certain circumstances, the action of the Government in Imposing the ad-hoc Committee having complete power of control and management and divesting the trustees of it transcends, these limitations infringed the Constitutional protection guaranteed under Articles 29 and 30 of the Constitution. 11. Mr. Prabha Shankar Misra appearing on behalf of the petitioners, therefore, contended that in the State of Bihar, the persons professing Arya samaj faith must be held to be religious minority, particularly in the absence of any material placed on behalf of the respondents that things have in any way changed since the decision rendered in 1958. In that decision, in paragraph 8 towards its end, this court observed as follows : "it follows, therefore, that the School has been established and is administered by a religious minority, namely, the Arya Pratinidhi sabha, within the meaning of Articles 29 and 30 of the constitution, and the case of the respondents to the contrary must be rejected as incorrect". 12. Learned Counsel for the Arya Samaj also referred to us another decision of the Supreme Court in the case of D. A. V. College, Jullunder v. The State of Punjab, (AIR 1971 Supreme Court 1937 ). There the Daya nand Anglo-Vedic College was run by members of the Hindu community professing the Arya Samaj faith. It was originally affiliated to the Punjab university, but after 1970, it was compulsorily affiliated to the Guru Nanak university under an Act. The College challenged some sections of the Act and certain statutes of the University on the ground that they contravened articles 29 and 30. Since the college belonged to a minority community based on religion and language the Community being adherants of the Arya Samaj sect and denomination on the compulsory affiliation of the college to the university, the main purpose of which was to propagate Sikh religion and promote the Punjabi language in the Gurmukhi script, violated Articles 9 and 30 of the Constitution. 13. 13. After giving the history of the Arya Samaj with reference to the various scriptures, the Supreme Court held that though the Hindu community was a major community in the whole of India, it was minority in the Punjab and the Arya Samajis though members of the Hindu community were a religious minority in the Punjab where the impugned Act operated, and the college was entitled to claim the rights under Articles 29 (1) and 30 (1) since it was established and administered by a religious minority with script of its own. In view of this, it was thought unnecessary to decide whether Arya Samajis were also a linguistic minority or whether they constituted a religious denomination within the meaning of Article 26. While referring to the religious denomination of this Samaj, the Supreme Court referred to the particular belief and practices preached and pronounced by the Arya Samajis. The learned Judges of the Supreme Court observed that the Arya Samaj is a reformist movement, believes in one God and in the Vedas as the books of true knowledge. It holds that it is the duty of every Arya Samaji to read the Vedas and have them read, to teach or preach them to others. It has a distinct organisation, the membership of which is open to all those who subscribe to its aims and objects. The Arya Samajis worship before the vedic fire and it begins with the burning of incense (the home sacrifice)accompanied by the chanting of the Vedic verses. 14. Before passing on the other authorities, I may refer back to the letter of the Director of Public Instructions, dated 6.7.1972 (Annexure 1 ). That letter shows that whereas the State Government decided as a matter of policy to take over the management of all the Middle schools, but with respect to the Schools administered by the minority community, the circular directed that their management would be taken over if the management resolved to hand over the same unconditionally The correspondence that passed between the officers of the Education Department and the authorities of the school, in my view, do indicate that the authorities treated the School in question as belonging to a linguistic minority community, so much so that the impugned order itself states that the nationalisation of the school was done on the basis of the resolution of the school. 15. 15. I may also usefully refer to the order, dated 6.12.1967 passed in the aforesaid C. W. J. C. No.321 of 1966, which was filed by petitioner nos.1 and 2 of the present application and one other challenging an order of the Board of Secondary Education, Bihar, issued under rule 39 of the bihar High Schools (Constitution of Powers and Functions of Managing committee) Rule 1964 appointing certain persons to exercise the powers and duties of the Managing Committee of the D. A. V. Higher Secondary School, dhanbad, situated in the same compound of the school, in the present case, on the same and similar grounds. When the order was challenged in that writ application and the writ was placed for hearing on 6.12.1972, a statement was made on behalf of the Board of Secondary Education it has already passed orders" recognising the D. A. V. School at Dhanbad as a minority institution for the purposes of Articles 29 and 30 of the Constitution. "no objection was raised to the quashing of the impugned order in that case and restraining the respondents from interferring with the right of the petitioners to administer the said School. 16. Before passing, however, to the contention advanced on behalf of the respondents, I must also refer to a Full Bench decision of this Court In the case of Dipendra Nath Sarkar V/s. State of Bihar, (AIR 1963 Patna 54)in which a claim was made by the persons professing Brahmo Samaj. The dispute related to a Girls School known as the Bankipore Palika Vidyalaya situated in the town of Patna established by the Brahmo Samaj. In that case the Director of Public Instructions had issued a letter to the effect that the Brahmo Samaj had no authority to constitute the Managing Committee "in view of the Government resolution laying down rules regarding the management of High School". It was held by the Full Bench that Brahmo samaj was a minority based on religion and a school managed and administered by the Brahmo Samaj was entitled to the protection of Article 30 (1) though the majority of the students were not of the Brahmo Samaj faith and no instruction in that faith was given. It was held by the Full Bench that Brahmo samaj was a minority based on religion and a school managed and administered by the Brahmo Samaj was entitled to the protection of Article 30 (1) though the majority of the students were not of the Brahmo Samaj faith and no instruction in that faith was given. The Full Bench took into consideration, the following factors to the conclusion, namely, that the Brahmo religion is distinct and separate from Hinduism and other religions with a separate church and with doctrines and tenets and rites and practice of its own. The Samaj has a place of worship at Bankipore known as "the Bankipore brahmo Samaj Mandir", and the affairs and the properties of the Samaj have all along been managed by an Executive Committee, elected from time to time by the General Committee, which consists of the entire congregation of the brahmos at Patna and the like. 17. From the above discussions and consideration of various authorities, in my judgment it follows and accordingly must be held that the Arya Samaj is a minority based on religion in the State of Bihar and that the petitioners are entitled to the protection under Articles 29 (1) and 30 (1) of the Constitution and to administer the School. 18. Mr. Kameshwari Nandan Singh, appearing for the respondents, however, relied heavily on a Bench decision of the Delhi High Court in the case of Arya Samaj Education Trust, Delhi and others V/s. The Director 0} Education, delhi Administration and others (AIR 1976 Delhi 297), It is, no doubt, true that the learned Judges of the Delhi High Court have taken somewhat different view in the matter. There also a question arose as to whether Arya samaj was a minority community based on religion within the meaning of article 30 (1) and thereby entitled to establish and administer educational institutions of its choice. A view was taken in this case that the words "based on religion" in Article 30 (1) mean that the only one principal basis of a minority must be their adherence to one of the many religions, and not a sect or a part of the religion and that the other features of the minority are subordinate to the main feature, namely its separate (sic) because of its religion. It was further held that the word "religion" in Article 30 (1) was confined to the well defined religions of India, such as Hinduism, Islam, Sikhism, Christianity, Jainism, etc. and that Arya Samaj was a part of Hinduism and not a separate religion, because in their opinion, if other view is taken, it will give rise to disruptive tendency and the Hindus will be divided into numerous sections on account of a large number of classes and sections among them. It is not necessary to dilate upon the reasoning advanced by the learned Judges of the Delhi High Court as, in my opinion, their view is indirect conflict with the view of this Court referred to above as well as contrary to the principles laid down by the Supreme court repeatedly in a large number of cases, some of which have already been noticed earlier. 19. I feel tempted to extract a quotation of Mr. Justice Jackson of the american Supreme Court in the case West Virginia State Board of Education V/s. Barnette, (1942) 319 US 624 at page 641, quoted in Dipendra Nath Sarkar V/s. State of Bihar and others (AIR 1962 Patna 101) : - "if there is any fixed star in our constitutional constellation it is that no official, high or pretty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us. " With due deference I do not agree with the learned Judges of the Delhi High court who drew a distinction between the technical and the non-technical senses of the word "minority". 20 Mr. Kameshwari Naudan Singh also tried to take shelter under the resolution dated 18.7.1972 adopted by the local Committee of the Arya Samaj (Annexure 2) and contended that in view of the decision already taken by the petitioners, it was not open to them to impugne the order. 21. It is difficult to accept this contention as the resolution to hand over the management of the school was not unconditional as required by the State government. In the counter-affidavit itself, it has been stated that the State government was not bound by the imposition of those conditions. 21. It is difficult to accept this contention as the resolution to hand over the management of the school was not unconditional as required by the State government. In the counter-affidavit itself, it has been stated that the State government was not bound by the imposition of those conditions. In paragraph 15 of the counter-affidavit, the respondents have categorically stated that the memo, dated 22.6.1972 (Annexure 1) clearly mentioned that the resolution to take over the institution should be without any condition proceeding further it has been stated that the order dated 21.2.1974 (Annexure 5) clearly mentioned that the school was being taken over without any condition. The resolution, therefore, could not be made a basis for taking over the management of the school as it was not passed in terms of the circular dated 22.6.1972. In St. Xaviers College case (supra) it was held that the right under Art.30 (1) cannot be bastered. 22. For these reasons I would allow this application, quash the order contained in Memo No.4578-81, dated 21.9.1974 (Annexure 5) issued by the district Education Officer, Dhanbad (respondent No.2) and restrain the respondents from interferring with the right of administration of the School in question by the petitioners. In the circumstances of the case, the petitioners should also get costs of this application. Hearing fee is assessed at Rs.200 only. Writ allowed.