Arya Samaj v. State Of Bihar — 1983 DIGILAW 314 (PAT)

Judgment S.Roy, J. 1. By this application under Articles 226 and 227 of the Constitution of India the petitioners have prayed for quashing Annexure 9, purported inspection report of and the order contained therein made by respondent No. 4. After this writ petition was admitted for hearing a further order was issued by respondent No. 4 on 28.4.1982 and the petitioner, therefore, instituted an application for No. 4 on 28.4.1982, amendment of their writ petition by allowing them to challenge that order as contained in annexure 11, That was allowed. The validity of Annexure 11 also, therefore, is the subject-matter of this writ petition. 2. According to the petitioners, Dayanand Arya Vaidic Primary School was established by the members of the Arya Samaj, a religious minority, at East Plant Bastee in the town of Jamshedpur in the year 1935. The primary school was established from the financial help given by the members of that Samaj and it was being administered by them. Till 1964 the school existed at East Plant Bastee and as the Tata Iron and Steel Company Ltd. wanted to demolish the entire East Plant Bastee, it allotted a new plot of land to the said School at Sonari. At a meeting of the Samaj it was decided to establish a Middle School at Sonari which was till then a primary school. A middle School, in pursuance of their regulation was established. By memo dated 1.12.1971 the Middle School was recognised. In 1980 the name of the Samaj which was till then known as Maharshi Dayanand Brajbhashi Samaj at Jamshedpur, was decided to be changed to Arya Samaj. The School was being run and administered by Arya Samaj and financial help for the same was also given by the members of that Samaj. Arya Samaj at Sonari is affiliated to Bihar Rajya Arya Pratinjdhi Sabha and the Bihar State Body approved the change of name of the Samaj from Maharshi Dayanand Brajbhashi Samaj to Arya Samaj. The school is managed by the governing Body elected from out of the members of the Arya Samaj. 3. Arya Samaj at Sonari is affiliated to Bihar Rajya Arya Pratinjdhi Sabha and the Bihar State Body approved the change of name of the Samaj from Maharshi Dayanand Brajbhashi Samaj to Arya Samaj. The school is managed by the governing Body elected from out of the members of the Arya Samaj. 3. On the basis of these averments made in the writ petition the petitioners claimed that they were entitled to the protection under Articles 29 and 30 of the Constitution of India so far this Middle School is concerned and on 6.10.1980 the petitioners made an application to the appropriate authority for declaring the school as Religious Minority Institution. Respondent No. 3 by Annexure-6 dated 28.2.1981. asked respondent No. 4 to send his recommendation with regard to the application filed on behalf of the petitioners. Respondent No. 4 asked the petitioners to furnish some information which was complied on 22.5.1981 by Annexure 7. According to the petitioners the application so filed on behalf of the School has not yet been disposed of by the State Government. 4. Respondent No. 5 was at the material time Headmistress of the School and it was found that she was committing grave illegalities in the administration of the school and was acting in defiance of the directions of the Managing Committee. The Managing Committee of the School, therefore, on 14.4.1982 by Annexure 8 (A), directed respondent No. 5 to handover charge of the school to one Nathmal Sharma, another teacher who was the shift incharge in that school and a copy of this letter was forwarded to respondent No. 4. On 15.4.1982 respondent No. 4, without any authority and without notice to the petitioners, sought to inspect the school. Respondent No. 4 alleged to have found a number of irregularities and he ordered that the Managing Committee be dissolved. Further, he directed respondent No. 5 to take steps for re-constitution of the Governing Body. The alleged irregularities found at the time of inspection on 14.4.1982 and the order dissolving the Managing Committee is contained in Annexure 9. The Managing Committee of the School had no information about the inspection of the school. The Managing Committee was reconstituted after due election on or about 12.10.1980. They have denied the allegations in Annexure 9 in regard to the irregularities alleged to have been found by respondent No. 4. The Managing Committee of the School had no information about the inspection of the school. The Managing Committee was reconstituted after due election on or about 12.10.1980. They have denied the allegations in Annexure 9 in regard to the irregularities alleged to have been found by respondent No. 4. No aid was received by the school from the State Government. As it was found that respondent No. 5 was not competent and serious irregularities were found, a proceeding was drawn up against her and she was asked to show cause. After due enquiry the Managing Committee terminated her services on 15.4.1982. It has been asserted by the petitioners that the respondent-State and its officers had no jurisdiction to interfere with the management of the school which was established and managed by the Arya Samaj. 5. A counter affidavit was filed on behalf of respondents 1 to 4 which was sworn by an assistant in the office of respondent No. 4. It has been stated that the State Government had right to inspect the school and pass appropriate orders as provided under the Bihar Primary and Middle Education Rules, 1961 (1961 rules). The school was government aided school and run by a Managing Committee. The school has not been recognised as an institution established and managed by a Religious Minority. 6. A counter affidavit has been filed on behalf of respondent No. 5. She has stated that the school was neither established nor managed by any religious minority community. The order terminating her services was without jurisdiction as the same could have been passed only by respondent No. 4. 7. In view of the claim made on behalf of the petitioners that the school in question was an institution established and managed by a religious minority, this Court on 29.9.1981 adjourned the hearing of the application with a view to enabling the State Government to pass appropriate orders on the application filed on behalf of the petitioners to declare the school as a Minority Institution. When on 13-11-1982 this application was listed again, the case was adjourned to enable to the State to pass appropriate order on the application filed on behalf of the petitioners. When on 13-11-1982 this application was listed again, the case was adjourned to enable to the State to pass appropriate order on the application filed on behalf of the petitioners. On 2.8.1983 when the application was called out for hearing, the counsel appearing for the State Government, informed that the State Government had not been able to dispose of the application filed on behalf of the petitioners. The case, therefore, was again adjourned. Ultimately on 3.10.1983 when the application was taken up again for hearing, the counsel appearing on behalf of the State, submitted that the State Government had not disposed of application filed on behalf of the petitioners. In view of the inaction on the part of the State Government it was not found proper to adjourn the matter any further. The case was, therefore, heard. 8. The petitioners have categorically asserted in the writ petition that the school was established and managed by the members of the Arya Samaj. After the establishment of the school, the necessary fund was raised from among the members of the Arya Samaj and the Arya Samaj at Sonari which manages the school is affiliated to the Bihar Rajya Arya Pratinidhi Sabha. The property of the school belongs to the Arya Pratinidhi Sabha. 9. In the counter affidavit filed on behalf of respondent Nos. 1 to 4 these facts have not been denied, not only specifically but not even by implication. In fact, a perfunctory counter affidavit has been filed on behalf of respondents 1 to 4 in which the only assertion made therein is that the school received Government aid and that 1961 rules were applicable. It has been admitted in that counter affidavit that the management of the school has not been taken over by the State Government and is being still managed by a Managing Committee. It is true that respondent No. 5, in her counter affidavit, stated that the school was not established or managed by any religious minority. She has not denied that the school was established and managed by the Arya Samaj. Although she was not competent to say whether the school was entitled to the protection under Articles 29 and 30 of the Constitution of India she has stated that Arya Samaj was not a religious minority in Bihar. 10. She has not denied that the school was established and managed by the Arya Samaj. Although she was not competent to say whether the school was entitled to the protection under Articles 29 and 30 of the Constitution of India she has stated that Arya Samaj was not a religious minority in Bihar. 10. It is settled law that in Bihar Educational institution established and managed by Arya Samaj are entitled to protection under Articles 29(1) and 30(1) of the Constitution of India. Whether an Educational Institution was, in fact, established and managed by Arya Samaj, is a question of fact. It is unfortunate that in the counter affidavit filed on behalf of the State, the statements of the tact made on behalf of the petitioners with regard to its minority character has not been traversed. The complete statement of facts were not stated in that counter affidavit. The State Government also did not care to dispose of the application made on behalf of the petitioners as far back as on 6.10.1980 in spite of repeated opportunities given by this Court during the pendency of this application to enable the State Government to dispose of that application. in the circumstance, in my opinion, it will not be proper to declare the school m question as a school established and managed by Arya Samaj. Although, prima facie, that appears to be so. 11. It is true that the law does not enjoin that an Educational Institution must be declared to be protected under Articles 29(1) and 30(1) of the Constitution of India and then only the rights under those Articles would be available to the School. But if a claim is made on behalf of any school in that regard, the State Government is required to decide the same on the basis of the materials that may be brought on record. 12. As noticed above, the counter affidavit filed on behalf of the State is perfunctory and because of the latches on the part of the officers of the State Government in filing a counter affidavit dealing with all the facts raised in the writ petition, the petitioners should not be allowed to take advantage of the same. I am, therefore, not expressing any concluded opinion as to whether the school in question was established and managed by Arya Samaj at Sonari. I am, therefore, not expressing any concluded opinion as to whether the school in question was established and managed by Arya Samaj at Sonari. However, in view of the assertions made by the petitioners in the writ petition prima facie, it appears that their assertion is correct. 13. I have already noticed above that the school has not been taken over by the state Government and is still being managed by a Managing Committee, in the counter-affidavit filed on behalf of State, it has been stated that the school received aid from the State Government. Respondent No 4 is purported to nave exercised power under 1961 Rules. The question, therefore, is even if the school is not an institution established and managed by a minority based on religion, whether the orders could have been passed by respondent No. 4 in purported exercise of his powers under 1961 Rules. 1961 Rules were framed under different sections of the Bihar and Orissa Local Self Government Act 1980. Aided school in that rules, has been defined to mean a school under Fund management receiving financial assistance from the District Education Fund. 14. At the time of hearing reference was made to 1961 Rules particularly Rules 15, 45 and 64 of the 1961 Rules. Rule 15 appears in Part II of me said rules and the heading is Rules applicable to all types of schools maintained or aided out of the district education fund and Rules 45 and 64 etc. are in this part. Rule 45 provides for posting, transfer, disciplinary action etc. against school staff and Rule 64 Provides for contro1 over Management committee. 15. From a Plain reading of the rules it will appear that one of the rules will apply to school other than schools maintained or aided out of the District Education Fund. The definite case of the State is that the school was a Government aided school and there has been no assertion that aid was given out of the district Education Fund. That being the position, no action could have been taken by respondent No. 4 in purported exercise of the powers Kameshwarindra Guru V/s. Chattu Prasad Mahto (H.C.R.B.) under any of the provisions of those rules. That being the position, no action could have been taken by respondent No. 4 in purported exercise of the powers Kameshwarindra Guru V/s. Chattu Prasad Mahto (H.C.R.B.) under any of the provisions of those rules. The order of respondent No. 4, therefore, as contained in Annexure-9 dissolving the Managing Committee and directing respondent No. 5 to take steps for its re-constitution and Annexure-11 holding the termination of the services of respondent No. 5 invalid because it was not approved by the competent authority, must be held to be without jurisdiction. 16. In the result the application is allowed and Annexures 9 and 11 were quashed. There shall be no order as to costs.