Mohd Maqbool Khan v. State of U. P — 1985 DIGILAW 323 (ALL)

JUDGMENT V.K. Mehrotra, J. - Azad Inter College is an educational institution at Bahraich. Hamidullah and Sharda Prasad Singh, two teachers of the institution claimed that they are the senior-most teachers and on July 8, 1982 the District Inspector of Schools, Bahraich held that Sarda Prasad Singh was senior to Hamidullah. This was challenged by Hamidullah have filing Writ Petition No, 3828 of 1982 in this Court on August 11, 1982. An interim order was initially made in favour of Hamidullah by the Court but was later vacated on January 24, 1983. The question of inter se seniority between these two teachers was of importance to them for the senior - most teacher was entitled to be appointed principal of the institution on ad hoc basis. 2. On May 10, 1983 the present petition was filed by one Mohd. Maqbool Khan. He claimed to be a social worker and a former student of the institution. He also claimed that on March 9, 1983 a Committee of Management was constituted of which he was a member but that Committee was not permitted to function as it was not approved by the District Inspector of Schools who had passed an order on April 14, 1983 ( Annexure 8' to the writ petition Saying that the erstwhile Managing Committee was continuing as the Committee said to have been constituted on March 9, 1983 was not approved and further that the District Magistrate, Bahraich being the ex-officio President was not invited to meetings of the Committee. On May 19, 1983 an order was passed by this Court restraining appointment to the post of Principal of the College. On June 30, 1983 the post of the Principal actually fell vacant and both Hamidullah and Sharda Prasad Singh staked their claim for appointment to it. Sharda Prasad Singh sought impleadment in the petition which was permitted. He also sought vacation of the ad interim order dated May 19, 1983 through an application dated February 17, 1984. Earlier to it Writ Petition No. 4461 of 1983 was filed on behalf of the Committee of Management of the institution on August 24, 1983 and it was claimed that the institution was a minority institution within the meaning of Article 30 (1) of the Constitution and the Committee of Management was entitled to manage it without interference from the authorities of the State. An application for interim relief was made in this petition. All these applications were disposed of by a learned Singlo Judge of this Court by an order dated March 27, 1984. The interim order of May 19, 1983 passed in the present petition was vacated. The Court, however, said that the appointment made to the post of the Principal during, the pendency of the writ petition shall be subject to the result of the petition. The prayer for an ad interim order in writ petition No. 4461 of 1983 filed by the Committee of Management was refused. Thereafter on April 2, 1984 the District - Magistrate, Bahraich passed an order under which Sharda Prasad Singh was required to act as Principal of the College. Mohd. Maqbool Khan, petitioner in the present case, moved this Court for staying the operation of the order of the District Magistrate and on April 30, 1984 it was clarified by this Court that if Sharda Prasad Singh had not taken over as Principal of the institution in pursuance of the order of the District Magistrate, he shall not take over charge until further orders of the Court. The order was again clarified by Hon. S.C. Mathur, J. (who had passed the order dated April 30, 1984) on an application (being Application No. 8571 (W) of 1984) made in that behalf by Sharda Prasad Singh in the present petition by an order of December 14, 1984, after hearing the parties. The relevant portion of this order says that: "...Two senior teachers of the institution are locked in litigation which is bound to effect the functioning of the educational institution. It is important that the educational institution should be run smoothly. As the matter stand at present find that Sharda Prasad Singh has better claim to act as Principal of the institution. Even if the District Magistrate is found to have no jurisdiction in the matter this Court can make appropriate arrangements for the smooth Tuning of the institution. In exercise of this power direct that during the pendency of the writ petition Sri Sharda Prasad Singh shall act as Principal of the institution concerned and all concerned will hand over to him the relevants records after obtaining proper receipt from him. The position of Sri Sharda Prasad Singh will be that of a receiver appointed under the provisions of the Code of Civil Procedure, 1908. The position of Sri Sharda Prasad Singh will be that of a receiver appointed under the provisions of the Code of Civil Procedure, 1908. All concerned may note that non - compliance with the terms of this order will amount to contempt of this Court. The parties concerned are allowed twenty days' time to comply with this order. Sd/ - S.C.M.J. 14-2-1984" 3. Mohd. Maqbool Khan, petitioner in the present case, went to the Supreme Court against this order through Special Leave Petition (Civil) No. 474 of 1985 and Sought an ex parte stay order as well. The matter was disposed by the Supreme Court on January 22, 1985 by the following order :- "The petition is dismissed. The High Court is requested to dispose of the writ petition within eight weeks from today." 4. After this, the petition was put for hearing and was heard by us as a specially constituted Bench under the orders of the Senior Judge dated February 22, 1985 on an application of that date made on behalf of the petitioner. 5. We have heard Sri Abdul Mannan for the petitioner, the Additional Advocate - General Sri R.N. Trivedi for the State, Sri Satya Deo Singh for Sharda Prasad Singh and Sri H.S. Sahai for the U.P. Madhyamik Shikshak Sangh. Sharda Prasad Singh and the U.P. Madhyamik Shikshak Sangh were impleaded as respondents subsequent to the filing of the writ petition and so was the Committee of Management, Azad Inter College, Bahraich through the Manager. In the counter - affidavit sworn on behalf of the Committee of Management (respondent No. 7) by Faizul Hasan, the stand of the petitioner has been supported in its entirety by the Committee of Management by admitting the assertions contained in various paragraphs of the writ petition. 6. The case of petitioner Mohd. In the counter - affidavit sworn on behalf of the Committee of Management (respondent No. 7) by Faizul Hasan, the stand of the petitioner has been supported in its entirety by the Committee of Management by admitting the assertions contained in various paragraphs of the writ petition. 6. The case of petitioner Mohd. Maqbool Khan, as presented before us by his learned counsel Sri Abdul Mannan, is that the Institution (Azad Inter College, Bahraich) having been established by the Muslim minority and being one administered by it, was entitled to exemption from the provisions of the U.P. Secondary Education Services Commission and Selection Boards Act, 1982 (U.P. Act No. 5 of 1982) [which received assent of the President on February 25, 1982 and was published in the U.P. Gazette (Extraordinary) dated February 26, 1982] in terms of Section 30 of that Act which says that "nothing in this Act shall apply to an institution established and administered by a minority referred to in clause (1) of Article 30 of the Constitution of India." The submissions that, inasmuch as, the Committee of Management has been divested of the power to appoint a Principal of the College, who is one of the teachers specified in the Schedule to the Act, except on the recommendation of the U.P. Secondary Education Services Commission established therein and obliges the management to appoint the person recommended by the Commission for appointment as Principal, it interferes with the right to administer the institution effectively. Since drastic provisions in this regard were enacted through U.P. Act No. 5 of 1982, the occasion for approaching this Court for relief arose. The institution was not claiming that it was not amenable to the regulatory provisions of the U.P. Intermediate Education Act, 1921 (as amended from time to time). The fact that a Scheme called the "Scheme of Administration of the Azad Higher Secondary School, Bahraich', was got framed and approved for the institution under Section 16-A of the Intermediate Education Act, 1921 was indicative of the attitude of the Committee of Management that it was not trying to take the stand that the institution was not subject to the regulatory provisions of that Act. 7. 7. The petition alleges that prominent Muslims of Bahraich led by Sri Maulana Mahfuzar Rahman Nami, the then Parliamentary Secretary in the Government of Uttar Pradesh, formed an Association in the year 1949 called 'Nurul Ulum Azad Education Society, Bahraich. It was registered under the Registration of Societies Act (Act XXI of 1860) on January 4, 1949. This Society established the institution which was earlier called the Azad Higher Secondary School and is now called the Azad Inter College, Bahraich. A Muslim trust and religious endowment of Bahraich known as Dargab Syed Salar Masood Gnazi was associated with the management of the institution from the very beginning. The administration of the institution was transferred to Dargah alter a new years of its start. The Dargah has been managing the institution ever since then. The constitution of Nurul Ulum Azad Education Society, Bahraich is Annexure S-l to a short supplementary affidavit sworn of Mohd. Maqbool Khan on February 11, 1985. Annexure S-2 to the same affidavit is a copy of the Minutes of Dargah Committee meeting dated October 2, 1951 relating to Azad inter College indicating that the object of the institution was me conservation of the culture and language and educational development of Muslims. A copy of the 'Scheme of Administration of the Azad Higher Secondary School' is annexure R-1 to the rejoinder affidavit sworn by Mohd. Maqbool Khan on April 12, 1984 in reply to the counter affidavit of the respondent Sharda Prasad Singh. This Scheme, which was framed under the provisions of Section 16-A of the Intermediate Education Act, 1921, recites that "the school is established and maintained by Dargah Syed Salar Endoment which is under the supervision and control of 'Sunni Central Board of Waqfs a body corporate, constituted under the U.P. Muslim Waqfs Act. 1960 and the said endowment is registered under Section 29 of tho said Act." The powers and functions of the Society, which had been defined to mean inter alia, a committee appointed of the U.P. Sunni Central Board of Waqfs under the provisions of too U.P. Muslims Waqfs Act, 1960 for the management of Dargah oyed Salar enumerated are enumerated in clause 24 of the 'Scheme. They include exercise of general control over the affairs of the school and the finances ; the nomination of members of the Managing Committee other than ex officio members and the power to supersede the Managing Committee with the previous approval of the proper authority of the Educational Department if the committee acts against the interests of the School or is unable to carry out the functions and duties laid down under clause to. The Committee of Management is to consist of 15 members of whom all except the ex-officio members are to be nominated by the Society. The District Magistrate, Bahraich is to be ex-officio President of tho Committee (subject to ms acceptance). 8. The authority to manage and conduct the affairs of the institution is to vest in the Committee of Management which is to be responsible for properly running the institution in accordance with the provisions of the Act, the Regulations and the Instructions issued from time to time by the authorities of the Education Department of Uttar Pradesh. The aims and objects of running the Azad Higher Secondary Schools are, amongst others, to impart upto date and cheap education to the boys and girls irrespective of caste and creed and race to enable them to become good citizen of the mother land." 9. The case of the petitioner is that all founder mothers of the institution were Sunni Muslims which indicates that it was established by the community. At various stages some local prominent non - Muslims were also associated in the Committee of Management but that could not change the basic character of the institution as being one established and administered by a minority community. The Management of the institution approached the Director of Education, U.P. in the year 1980 for recognition of the Azad Inter College as an institution managed and administered by Muslim minority within the meaning of Article 30 (I) of the Constitution but the request was arbitrarily refused and the refusal was communicated to the institution by the Deputy Director of Education through his letter dated July 19, 1980 (Annexure 2 to the writ petition), he management of the institution thereafter approached the State Government and representations were made by various prominent citizens belonging to the minority community to the State Government and the U.P. Minority Commission the State Government also referred the matter to the Minority Commission. Through a letter dated March 27 1982 addressed to the Secretary, Education, Uttar Pradesh, the Minority Commission is said to have recommended for recognition of the institution as one established and administered by a minority community. The Manager of the institution was informed by the Secretary of the Uttar Pradesh State Minority Commission through a letter dated March 27, 1982 (Annexure 6' to the writ petition) that the State Government was not inclined to accord the desired recognition to the institution because in the Scheme the membership was not confined to persons belonging to the minority community and was open to all so that a stage could arrive when the majority of membership may be of those belonging to majority community. Since, however, the Minority Commission was satisfied that the institution was entitled to be characterised as one of the minority Community, it had made a reference to the State Government about it. There is on record a communication dated October 21, 1983 contained in Letter No. 5329/85-7-10/29/1983 of Education Section 7 addressed by Sri Ram Lal Sharma, Deputy Secretary. Government of Uttar Pradesh to the Director of Education, Uttar Pradesh containing the reasons why the Azad Inter College Bahraich could not be treated to be a minority institution. It is an annexure (unnumbered) to the supplementary affidavit sworn by Shyam Lal Gandhi on November 26, 1983 along with an application of that date for taking it on record. This letter says that the Azad Inter College, Bahraich could not be treated to be a minority institution because in the rules and regulations of the Society of the Institution, there was no restriction that the membership of the Board of Control would be confined to Muslims alone. In addition, the Managing Committee of the institution had a Hindu member and President. Also, the Manager had himself mentioned in the recital of the history of the institution that some non - Muslim persons were made members of the Managing Committee. The further recital in the document is that the institution can be treated to be a minority institution only when its records make it clear that the persons establishing and administering the institution belong to some religious or linguistic minority and further that the members of that institution can only be persons of a minority. The further recital in the document is that the institution can be treated to be a minority institution only when its records make it clear that the persons establishing and administering the institution belong to some religious or linguistic minority and further that the members of that institution can only be persons of a minority. Since for the reasons given earlier, the establishment and administration of the institution by a minority was not confirmed, it was not possible to treat it is a minority institution. 10. The question which, we feel, requires consideration is whether the approach of the State Government in the matter is in accordance with law and whether the institution deserves to be treated as one established and administered by a minority as envisaged under Article 30 (1) of the Constitution or not. But, before considering this question, we would like to deal with some objections raised on behalf of the respondents to the maintainability of the petition at the instance of Mohd. Maqbool Khan and the relief that could be obtained in the petition. 11. The respondents have urged with emphasis that Mohd. Maqbool Khan, by himself, has no locus standi to seek relief about the institution being one established and administered by a minority envisaged by Article 30 (1) of the Constitution. The counsel for the respondents have canvassed that Article 30 (I) of the Constitution, which says that "all minorities, based on religion or language, shall have the right to establish and administer educational institutions of their choice, ' confers a right upon a group of persons constituting the minority so that a single member, like the petitioner, cannot seek relief on behalf of the minority concerned. The petition could have been moved in a representative capacity alter seeking permission of the Court and after undergoing procedural requirements in that regard or by the Committee of Management itself. If an individual belonging to a minority was permitted to move the Court for redress, otherwise than in the manner aforesaid, it would lead to chaos for the decision would not bind any one but him. If an individual belonging to a minority was permitted to move the Court for redress, otherwise than in the manner aforesaid, it would lead to chaos for the decision would not bind any one but him. We are not inclined to explore and record a conclusion upon the question of law whether a single member of the minority can move the Court for redress on the ground that the institution is one established and administered by the minority within the meaning of Article 30 (1) of the Constitution when we find that the Committee of Management of the Azad Inter College, which is the 7th respondent in the petition, has appeared before the Court and has supported the claim of petitioner Mohd Maqbool Khan in its entirety by filing a counter affidavit accepting the assertions made by the petitioner In such a situation, the question becomes academic, In Dwarkadas Shrinlvas v. The Sholapur Spinning and Weaving Co. Ltd., A.I.R 1954 S.C. 119 the right of Dwarkadas Shrinivas. plaintiff, a preference share holder of the company to maintain the suit challenging the constitutionality of an Ordinance was objected to on the ground that it was the company which ought to have filed the suit as it was affected by the impugned order and not the plaintiff. Justice Mahajan (as he then was), delivering the main judgment of the Court, observed that "the question of the locus standi of the plaintiff to raise the plea that the Ordinance being void against the company, the Directors had no authority to make a call is really of academic interest in this case because here the company has been impleaded as a defendant. Its old Directors have made an application to this Court supporting the case of the plaintiff on the ground that the Ordinance is void, as it infringes the company's fundamental right under Article 31 (2)." 12. In S.P. Gupta v. The President of India, A.I.R 1982 S.C. 149 it was observed by Tulzapurkar, J. (in paragraph 604 at page 387) that "..................the question raised by the contesting respondents relates to the locus standi of the petitioners who are legal practitioners in Allahabad, Bombay and Delhi High Courts, to maintain their petitioners seeking relief against these two impugned actions. In my view the question of locus standi of the petitioners in these cases has become academic inasmuch as admittedly in the writ petition filed by Shri Tarkunde in Delhi High Court (being Writ Petition No. 882/81) Mr. Justice S.N. Kumar (as he then was) impleaded as a party-respondent, has supported the challenge and sought reliefs in respect of these impugned actions and as such the challenges made will have to be gone into and decided by this Court." 13. We may add tin t the Committee of Management which, even according to the counsel for the respondents, could have approached the Court for redress in the matter being a party to the petition would be bound by the decision and the apprehension that the decision given in this petition, if adverse to the case set up by the petitioner, could lead to further litigation at the instance of the Committee of Management or members of the minority community appears unwarranted. 14. The contesting respondents also urged with vehemence that the petition deserves to be thrown out as the petitioner was guilty of laches. It is said that on the statement of the petitioner himself in the writ petition, the Committee of Management, of which he claimed to be a member and which is said to have been formed on March 9, 1980, was not recognised as far back as on September 26, 1980 through a communication of that date addressed to the Manager of the institution by the Deputy Director of Education, Faizabad (Annexure 5' to the writ petition) and the claim for recognition of the college as an institution established and administered by Muslim minority was refused by the Director of Education, which refusal was communicated to the institution through a letter of the Deputy Director of Education dated July 19, 1980. The petition was filed in this Court only on May 10, 1983. This clearly shows inactivity on the part of the petitioner which desentitles him for any relief by this Court. The petition was filed in this Court only on May 10, 1983. This clearly shows inactivity on the part of the petitioner which desentitles him for any relief by this Court. The petitioner has given out in paragraphs 15 to 18, 27 and 30 of the petition the circumstances in which the question relating to the recognition of the institution as one established and administered by a minority remained pending with the U.P. Minority Commission and the State Government over the years and has asserted that no final decision was communicated to the institution by the State Government in the matter. We have already referred to the communication dated October 21, 1983 from the Deputy Secretary, Government of Uttar Pradesh to the Director of Education, U P. disclosing the reasons which weighed with the State Government in not treating the Azad Inter College. Bahraich as an institution established and administered by a minority The petition also refers in paragraphs 34 and 35 to the fact of enforcement of U.P. Secondary Education Services Commission aN.S.lection Boards Act. 1982 and that the post of the Principal of the College was going to be vacant on June 30, 1983 on the retirement of the then Principal. Also about invitation by the Commissioner of applications for the post of Principal through its letter of March 29. 1983 as well as the plea that the Commission had no power to make selection for the post of Principal in the case of institutions established and administered by a minority within the meaning of Article 30 (1) of the Constitution In these circumstances, we are not inclined to take the view that relief should be refused on the ground of laches. 15. The petitioner has appended a copy of the communication dated April 14, 1983 from the District Inspector of Schools, Bahraich to the Manager of the Institution as annexure 8' to the writ petition. It has been reiterated in this letter that the District Magistrate is ex officio President of the Managing Committee and that there had been no amendment in the Scheme of Administration so that the District Magistrate will continue to be President of the Institution and Should be invited to the meetings of the Maraging Committee. It has been reiterated in this letter that the District Magistrate is ex officio President of the Managing Committee and that there had been no amendment in the Scheme of Administration so that the District Magistrate will continue to be President of the Institution and Should be invited to the meetings of the Maraging Committee. The allegation in paragraph 32 of the petition is that the consequence of the aforesaid communication, a meeting of the Managing Committee which consisted of the old members under the Presidentship of the District Magistrate, had been called for on May 4, 1983 ignoring the members of the committee constituted on March 9, 1980. It is followed by the assertion in paragraph 33 that no formal decision rejecting the proposed amendment in the scheme had been communicated to the knowledge of the petitioner We may notice here the allegation of the petitioner that the Administrator of the Dargah had moved for the amendment of the Scheme of Administration proposing that the aims and of acts should include provision for "upto date and cheap education to the Muslim boys and girls in particular and others in general" and that the authority of the Committee of Management to manage and conduct the affairs of the institution was to be "in accordance with the provisions of the Act, Regulations and Instructions issued from time to time by the authorities of Education Department of U.P. in so far as they do not clash the provisions of Article 30 (1) of the Constitution", Further, in place of District Magistrate being ex officio President of the Committee, the proposal was that the President was to be elected by the members from amongst themselves. We may also notice that in paragraph 29 of the writ petition, the petitioner also says that such an amendment was not necessary for recognition as a minority institution. No Specific relief in respect of the proposed amendment (contained in Annexure 7 to the writ petition', has been sought in the petition. 16. The principal question which has been canvassed before us may now he considered. It is said that the Azad Inter College, Bahraich was established by the Muslim minority which bad the right to administer it without interference of the nature contemplated by the provisions of the U.P. Secondary Education Services Commission and Selection Boards Act, 1982. 16. The principal question which has been canvassed before us may now he considered. It is said that the Azad Inter College, Bahraich was established by the Muslim minority which bad the right to administer it without interference of the nature contemplated by the provisions of the U.P. Secondary Education Services Commission and Selection Boards Act, 1982. The fact that the institution was established by the Muslim minority is sought to be proved by the Memorandum of Association of Nurul Ulum Azad Education Society, Bahraich (Annexure 'S-l' to the short supplementary affidavit dated February 11, 1985 of Mohd. Maqboc Khan) where 21 Muslim gentlemen including Maulana Mahfuzur Rahman as the President, are said to have formed themselves into a society, named "Nurul Ulum Azad Education Society. Bahraich" for propagating and promoting the primary and Secondary education and giving training in technical subjects or establishing educational institution no Such as the Nurul Ulum Azad and other allied institutions, in which the entire supervision and general control would vest in the Board of Control in accordance with the rules laid down in the Memorandum of Association, Annexure S-2 the same affidavit is a copy of the proceedings of the meeting held on October 2, 1951 attended by nine of the members in which it was resolved that greater emphasis be given to religious education and also to take over Azad College, Bahraich which was rendering great service with a view to facilitate education to Muslim students and those who were studying Urdu language and to provide adequate financial assistance to it. It was also mentioned in the resolution that the Dargah Committee should take over the administration of the institution. Reliance has also been placed upon the Scheme of Administration (Annexure 'R-l') to the rejoinder affidavit of Mohd. Maqbool Khan, noticed above) which has a recital that the school was established and maintained by Dargah Syed Salar Endowment and upon the statement made by Ranbir Singh Assistant Supervisor in the office of the District Inspector of Schools, Bahraich in paragraph 19 of the counter affidavit that although the said institution was founded by Sunni Muslims but in the scheme the membership of other community was not prohibited even in the first committee which was founder committee It has been urged that having approved the Scheme of Administration years ago and having acknowledged therein that the school was established by the Dargah. it was not open to the State to say, as was being done now, that it w as not so established. 17. The contesting respondents have brought to our notice Annexure 'A-2' to the affidavit sworn by Shyam Lal Gandhi on August 2, 1983 in this Court in support of an application dated August 3, 1983 for the impleadment of Uttar Pradesh Madhyamik Shikshak Sangh as a respondent to the writ petition. This document is said to be a Copy of the certificate of Registration No 212 of 1948 - 1949, dated January 4, 1949 relating to the Nurul Ulum Azad Education Society Bahraich with which is enclosed "the Memorandum of Association" of Azad Higher Secondary School, Bahraich. In this document are contained the names of persons who formed themselves into a Society. Out of 15 persons, five including Sardar Balbir Singi, the President, were Hindus. On the basis of this document it was urged that the claim that the initial Society, which established the institution, consisted only of Muslims as factually incorrect. The affidavit worn by Sharda Prasad Singh in support of the application dated February 10, 1984 for his implement as a party to the writ petition and vacation of the ad interim order, contains in several paragraphs assertions to the eff of that the institution came into existence initially as a purely secular institution by efforts of a number of peoples, many of whom were non - Muslims and was being administered by a committee consisting of several non - Muslim members. The allegations are to be found, mainly, in paragraphs 6, 7, 10, 12, 13, 14 and 15 of the affidavit. The counter affidavit sworn by Kanbir Singh also contains assertions in paragraphs 0, 14 and 17 to the effect that the first committee which was constituted in 1949, the year in which the institution was established, had five Hindu members and one Shia member and that administration had been by committees consisting of several non - Muslims members and further that there is no prohibition upon non - Muslims being associated with the administration of the school in the scheme of administration. 18. 18. In S. Azeez Basha v. The Union of India, AIR 1968 S.C. 662 a Constitution Bench of the Supreme Court observed (in paragraph 25) that the word 'establish' in Article 30 (1) means "to bring into existence" and so the right given by Article 30 (1) to the minority is to bring into existence an educational institution and on doing so, to administer it. 19 In State of Kerala v. Very Rev. Mother, AIR 1970 S.C. 2079 another Constitution Bench observed that Article 30 (I) contemplates two rights which are separated in point of time. the first right is the initial right to establish institutions of the minority choice. To quote the words of their Lordships. "Establishment here means the bringing into being of an institution and it must be by a minority community. It matters not if a single philanthropic individual with his own means, finds the institution or the community ai large contributes the funds. The position in law is the same and the intention in either case must be to found an institution for the benefit of a minority community by a member of that community. It is equally irrelevant that in addition to the minority community others from other minority communities or even from the majority community can take advantage of these institutions. Such other communities bring in income and they do not have to be turned away to enjoy the protection." 20. In Khalsa Girls School v. Regional Inspectress, 1982 UPLBEC 504 a Division Bench of this Court, speaking through N.N. Sharma, J. observed that to qualify for the benefit and recognition by .Article 30 (I) of the Constitution, the main point to be considered was whether an institution in any manner served or promoted the interest of the minority to which is claimed to belong. The learned Judges expressed their agreement with the observation contained in Samual v. District Education Officer, AIR 1962 AP 67 to the following effect "Where an educational institution is established and maintained exclusively or predominantly for teaching or promoting the religious tenets of a given religious minority, or for promoting and developing,the language and literature of a given linguistic minority, there cum-be little doubt that it is an educational institution serving and promoting the interest of such minority and hence minority institution." 21. Founded upon the aforesaid observation, the submission on behalf of the respondents is that even assuming, though not admitting, that the institution was established initially by a minority, the protection of Article 30 (1) of the Constitution can only be sought if it is found, in fact, that it was established to serve the interest of the minority. It has been urged that it was apparent from annexure 1' to the writ petition itself that the initial idea was to provide education to boys and girls irrespective of caste etc. and that it was only by the proposed amendment put forward in the year 1980 that it was attempted to convert a secular institution to a minority institution. The submission has been countered on behalf of the petitioner by his learned counsel by urging that the fact, that the establishment of the institution was for the benefit of minority community is clear from the proceedings dated October 2, 1951 which have been filed as annex re 'S - 2' to the short - supplementary affidavit of Mohd. Maqbool Khan sworn on February 11, 1985 in support of the application of that date made by the petitioner for talking the affidavit on record. In respect to this submission the respondents have said that the documents filed with this supplementary affidavit should not be taken into consideration by this Court for they were not afforded opportunity to file any affidavit in reply to it. 22. Sri Mannan, for the petitioner, has taken the stand that annexure 'A-2' to the affidavit of Shyam Lal Gandhi sworn on August 2, 1984 is not a reliable document for the inherent evidence therein suggests that it is of a period subsequent to the framing of the Scheme of Administration (Annexure R-l to the rejoinder affidavit of Mohd. Maqbool Khan sworn on April 12, 1984). The evidence pointed out is a recital in annexure 'A-2' at its internal page No. 4 that "A certified copy of the scheme of administration as framed under the Intermediate Education Act embodying the rules of the Managing Committee is herewith attached." Wo find that there is serious dispute between the parties about the persons who initially formed themselves into a society and established the institution. There is also serious dispute between them in regard to the objects for which the society was formed. There is also serious dispute between them in regard to the objects for which the society was formed. A dispute of this nature, in our opinion Should not be resolved by us in these proceedings and Should more appropriately be left to be decided in some proper forum. 23. The question which still is to be considered is about the proper legal approach while examining the question whether an institution has been established and is to be administered by a minority within the meaning of Article 30 (1) of the Constitution Several decisions of the Supreme Court have been cited before us in this regard. It is not necessary for us to refer to all these decisions for we feel that a nine Judge decision of the Supreme Court in the Ahemdabad St. Xaviers College Society v. State of Gujarat, AIR 1974 SC 1389 which is the judgment of the largest Bench of the Supreme Court so far available, furnishes the requisite guidelines. But, before we do so we may refer again to the Constitution Bench decision of the Supreme Court in S. Azeez Basha v. Union of India, AIR 1968 SC 662 . In it, the Supreme Court was called upon to consider the constitutional validity of the Aligarh Muslim University (Amendment) Act, 1965. Speaking through Wanchoo, C.J. the Court said that for the purpose of Article 30 (1) the word 'establish' means "to bring into existence" and so the right given by Article 30 (I) to the minority is to bring into existence an educational institution and if they do so, to administer it. Further that the University having been established under an Act of the Central Legislature, though that Act was passed as a result of the efforts of the Muslim minority, could not be said to have been established by the Muslim minority. To quote some of the observations of their Lordships : "....... The article in our opinion clearly shows that the minority will have the right to administer educational institutions of their choice provided they have established then), but not otherwise. The article cannot be read to mean that even if the educational institution has been established by somebody else, any religious minority would have the right to administer it because, for some reason or other, it might have been administering it before the Constitution came into force." 24. The article cannot be read to mean that even if the educational institution has been established by somebody else, any religious minority would have the right to administer it because, for some reason or other, it might have been administering it before the Constitution came into force." 24. Our attention was drawn to the criticism of the view expressed in Azeez Basha's case (supra; by Sri H.M. Seervai in the book '"Constitutional Law of India" about the meaning to be given to the word "established'. Sri Seervai opined that Muslim community established the University and provided it with its total endowments and that, therefore, it is the Muslim minority which founded the institution. Further, even it the definition given by the Court were correct............"the Muslim community brought the University into existence, in the only manner in which a University could be brought into existence, namely, by invoking the exercise by the sovereign authority of its legislative power. The Muslim community provided lands, buildings, colleges and endowments for the University and without these the University as a body corporate would be an unreal abstraction." 25. The question in The Ahmedabad St. Xaviers's case (supra) was about the ambit and Scope of the rights of a minority, whether based on religion or language, to establish and administer an educational institution of their choice under clause (1) of the Article 30 of the Constitution. If arose when the petitioner society claimed that recognition or affiliation could not be denied to an institution established and administered by a minority. The Court, while examining the scope of the rights under Article 30 (of the Constitution, made some observations which may be quoted. In paragraph 5 of the report, it was said that: "Article 29 and 30 confer four distinct rights. First is the right of and Section of the resident citizens to conserve its own language, scrip it or culture as mentioned in Article 29 (1). 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 btata aid on the ground that it is under the management of a religious or lingustic minority as mentioned in Article 30 (2). Third is the right of an educational institution not to be discriminated against in the matter of btata aid on the ground that it is under the management of a religious or lingustic minority as mentioned in Article 30 (2). Fourth is the fight of the citizen not to be denied admission into and State maintained or State aided educational institution on the ground of religion, caste, race or language as mentioned in Article 29 (2)." While in paragraph 6, the observation was that : "It will be wrong to read Article 30 (10) as restricting the right of minorities to establish and administer educational institution of their choice only to cases where sue r institutions are concerned with language, script or culture of the minorities." Then, in paragraph 7 it was observed that : "If the scope of Article 30 (1) is to establish and administer educational institution to conserve language, script or culture of minorities, it will render Article 30 redundant. If rights under Article 29 (1) and and 30(1) are the same then the consequence will be that and Section of citizens, not necessarily linguistic or religious minorities, will have the right to establish and administer educational institutions of their choice The scope of Article 30 rests on linguistic minority and no other action of citizens of India had such a right." In paragraph 20, we find the observation that : "The right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right. This right is not free from regulation. Just as regulatory measures are necessary for maintaining the educational character and content of minority institution Similarly regulatory measures are necessary for ensuring orderly, efficient and Sound administration. This right is not free from regulation. Just as regulatory measures are necessary for maintaining the educational character and content of minority institution Similarly regulatory measures are necessary for ensuring orderly, efficient and Sound administration. Das, C.J., in the Kerala Education Bill case, 1959 SCR 995 : AIR 1958 SC 956 (supra) summed up in one Sentence the true meaning of the right to administer by saying that the right to administer is not the right to maladminister." While in paragraph 31 it is said that: "Regulations which will serve the interests of the students, regulations which will serve the interests of the teachers are of paramount importance in good administration Regulations in the interest of efficiency of teachers, discipline and fairness in administration are necessary for prospering harmony among affiliated institutions." In paragraphs 40, 41 and 47 we find the following observations in regard to the right to administer the institution: "...... The right to administer is the right to conduct and manage the affairs of the institution. This right is exercised through a body of persons in whom the founders of the institution have faith and confidence and who have full authority in that sphere. The right to administer is subject to permissible regulatory measures. Permissible regulatory measures are those which do not restrict the right of administration but facilitate it and ensure better and more effective exercise of the right for the benefit to the institution and through the instrumentality of the management of the educational institutions and without displacing the management. If the administration has to be improved it should be done through the agency of instrumental that the existing management and not by displacing it. Restrictions on the right of administration imposed in the interest of the general public alone and not in the interests of and for the benefit of minority educational institutions concerned will effect tho autonomy in administration." "Autonomy in administration means right to administer effectively and to manage and conduct the affairs of the institutions. The distinction is between a restriction on the right of administration and a regulation prescribing the manner of administration. The right of administration is day to day administration. The choice in the personal of management is apart of the administration. The University will always have a right to see that there is no maladministration. The distinction is between a restriction on the right of administration and a regulation prescribing the manner of administration. The right of administration is day to day administration. The choice in the personal of management is apart of the administration. The University will always have a right to see that there is no maladministration. If there is maladministration, the University will take crops to cure the same. There may be control and check on administration in order to find out whether the minority institutions arc engaged in the activities which are not conductive to the interest of the minority or to the requirements of the teachers and the students." "In the field of administration it is not reasonable to claim that minority institutions will have complete autonomy. Checks on the administration may be necessary in order to ensure that the administration is efficient and sound and will serve the academic needs of the institutions. The right of a minority to administer its educational institution involves, as part of it, a correlative duty of good administration." In paragraph 74 it is observed that : "Administration connotes managements of the affairs of the institution. The management must be free of control so that the founders or their nominees can mould the institution as they think fit and in accordance with their ideas of how the interest of the community in general and the institution in particular will be best served. The words "of their choice" qualify the educational institutions as they Show that the educational institutions established and administered by the minorities need not be of some particular class; the minorities have the right and freedom to establish and administer such educational institutions as they choose." 26. In a later case of All Saints High School v. The Government of Andhra Pradesh, AIR 1980 SC 1042 the Supreme Court observed in paragraph 65 of the report, inter alia as follows : "Thus, on an exhaustive analysis of the authorities of this Court and and the views taken by it from time to time during the last two decades on various aspects, shades and colours, built-in safe guards guarantees, scope and ambit of the fundamental right enshrined in Article 30 (l) the principles and propositions that emerged may be summarised as follows :- 1. That from the very language of Article 30 (I) it is clear that it enshrines a fundamental right of the minority institution to manage and administer their educational institutions which is completely in consonance with the secular nature of our demo - cray and the Directives contained in the Constitution itself. 2. That although unlike Article 19 that right conferred on the minorities is absolute, unfettered and unconditional but this does not mean that this right gives a free licence for maladministration so as to defeat the avowed objects of the Article, namely to advance excellence and perfection in the field of education. 3. While the State or any other statutory authority has no right to interfere with the internal administration or management of the minority institution, the State can certainly take regulatory measures to promote the efficiency and excellence of educational standards and issue guidelines for the purposes of ensuring the security of the services of the teachers or other employees of the institution 4......... 5......... 6......... 7......... 8......... 9.......... 27. The learned counsel for the petitioner has also brought to our notice the fact that by an order dated November 26, 1981 in Anjuman - A - Rahmania v. District Inspector of Schools, Writ Petition No. 54-57 of 1981 the entire matter has been referred for consideration by a still larger Bench of the Supreme Court in view of some apparent conflict in what the Supreme Court in the case of Azeez Basha (supra) and same later decisions. However, we need not go into the matter any further, except for referring to a Full Bench judgment of the Kerala High Court in Alko Marla Patrani v. E.C. Kesawan, AIR 1965 Kerala 75 which was brought to our notice by the learned counsel for the petitioner. In that case it was observed (in paragraph 14 of the report) that "the post of the Headmaster is of pivotal importance in the life of a school. Around him wheels the tone and temper of the institution ; on him depends the continuity of its tradition, the maintenance of discipline and the efficiency of its teaching. In that case it was observed (in paragraph 14 of the report) that "the post of the Headmaster is of pivotal importance in the life of a school. Around him wheels the tone and temper of the institution ; on him depends the continuity of its tradition, the maintenance of discipline and the efficiency of its teaching. The right to choose the headmaster is perhaps the most important fact of the right to administer of school ; and we must hold that the imposition of any tramel thereon except to the extent of prescribing the requisite qualifications and experience cannot but be considered as a violation of the right guaranteed by Article 30 (1) of the Constitution. To hold otherwise will be to make the right "a teasing illusion, a promise of unreality." This decision was noticed by Dwivedi, J. in the case of the Ahmedabad St. Xavires College, AIR 1974 S.C. 1389 in paragraph 283, amongst other decisions by saying that "no new principle is expounded in the decisions of various High Courts which followed one or the other decisions of this Court and that, therefore, it was not necessary to refer to them in any detail." 28. The order of the State Government dated October 21, 1983 (Annexure 'A-3' to the supplementary affidavit of Shyam Lal Gandhi) noticed by us earlier, contains the reasons for not treating the institution as one established and administered by a minority within the meaning of Article 30 (1) of the Constitution. Those reasons, to which we have already adverted, are not germane to the question whether the institution, in the present case, is one to which Section 30 of U.P. Act 5 of 1982 would apply. The reason that persons other than Muslims were associated with the administration of the institution and that there was no prohibition for association of such persons in the scheme of administration cannot form a legal basis for refusal to extend the benefit of Article 30 (1) of the Constitution to the institution. What is necessary to be determined is whether the institution was established by a minority, religious or lingual, and whether it is substantially administered by it. These are questions to be determined on the facts of each case before any decision is taken. The order of the State Government to our mind, proceeds upon an entirely erroneous baste and deserves to he set aside. These are questions to be determined on the facts of each case before any decision is taken. The order of the State Government to our mind, proceeds upon an entirely erroneous baste and deserves to he set aside. The objection of the respondent that the petitioner has not specifically challenged this decision in the writ petition need not detain us for we are of opinion that the order have been brought on the record, we are entitled to look into it and grant appropriate relief in the matter. Since, in our view, the State Government Should first examine the facts of the case and come to a conclusion about the factual aspect of the matter whether the institution was established by the Muslim minority so as to give it the right to administer it in terms of Article 30 (1) of the Constitution and also about the claim that tho Institution was being Substantially administered by the Muslim minority, we quash the order of the State Government dated October 21, 1983 (Annexure to the supplementary affidavit of Sham Lal Gandhi dated November 26. 1983) and direct the State Government to examine the petitioner's claim, in the light of the evidence which may be brought before it by the parties to this petition, within a period of eight weeks of the petitioner approaching tho State Government with a certified copy of the judgment and record its conclusion within that period after notice to the parties. We hope that the parties shall co-operate with the State Government in examine it to carry out the directions of this Court within the aforesaid period. We also direct that until the matter is decided by the State Government, the interim order of this Court dated December 14, 1984. the appeal against which was dismissed by the Supreme Court by its order dated January 22, 1985, shall remain in force. The petition shall stand allowed in these terms. Parties are, however left to bear their own costs. 29. The other petitions, namely writ petition No. 3828 of 1982; writ petition No. 4-61 of 1983 and writ petition No. 3171 of 1984 shall be laid for disposal before an appropriate Bench as determined by Hon'ble the Senior Judge. The petition shall stand allowed in these terms. Parties are, however left to bear their own costs. 29. The other petitions, namely writ petition No. 3828 of 1982; writ petition No. 4-61 of 1983 and writ petition No. 3171 of 1984 shall be laid for disposal before an appropriate Bench as determined by Hon'ble the Senior Judge. We may add that wo have proceeded to hear and decide writ petition No. 2499 of 1983 alone on merits after hearing the counsel for the parties on the request of Sri A. Mannan, appearing for the petitioner, in view of the observations made by the Hon'ble Supreme Court in its order dated January 22, 1985.