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TMI Blog1961 (10) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... pril, 1960, respondent No. 4 wrote to Sri Kundu stating that he had been instructed by the Director of Public instruction to ask Sri Kundu not to interfere with the management of the School. On the 11th April, 1960, respondent No. 3. Secretary to the Board of Secondary Education, wrote to the District Inspectress of Schools that the Brahmo Samaj had no authority to constitute the Managing Committee in view of the Government resolution laying down rules regarding management of High Schools and that the existing Managing Committee With respondent No. 4, Mr. Kohli, as secretary will continue to function and remain in office. The letter of the Board of Secondary Education is annexure C(1) to the application and reads as follows : No. 7863-64. From The Secretary, Board of Secondary Education. Bihar, Patna. To The District Inspectress of Schools, Dated Patna, the 11th April, 1960. Subject: The Managing -Committee of the Balika Vidyalaya, Kadam Kuan, Patna. Madam, It appears from the letter of the Acting Secretary of the aforesaid High School on the subject noted above that the Brahmo Samaj has formed a new Managing Committee for this year, but I am to inform you t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ool to the Brahmo Samaj, but respondent No. 4 flatly refused to hand over charge. On the 29th November, 1960, the petitioner wrote to respondent No. 4 that Sri Kundu and himself would go to the school on the 1st December, 1960, in order to take charge. On that date respondent No. 4 told the petitioner that he will not hand over charge of the school as he was not a party to the application. 2. The petitioner has now obtained a rule from the High Court calling upon the respondents to show cause why a writ in the nature of mandamus should not be issued commanding them not to give effect to the order of the Board of. Secondary Education dated the 11th April, 1960, and further commanding respondents Nos. 4 to 13 to relinquish charge of the school and to make over charge to the Managing Committee appointed by the Samaj by the resolution dated the 27th March, 1960, and to desist from interfering with the management of the school by the Samaj. 3. Cause has been shown by the Government Advocate on behalf of respondents Nos. 1 to 3 and by Mr. Jaleshwar Prasad on behalf of the other respondents to whom notice of the rule was ordered to be given. 4. It is necessary at this stage to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cio). (f) Teachers' representative. (2) All those who donate ₹ 10,000 or more to the school fund in cash or property shah be treated as life members of the committee and shall be ipso facto members of the committee, in addition to the 11 members enumerated in Rule 1 above. (3) The President and the Secretary of the Committee shall be selected from amongst the members of the managing committee and the election shall be subject to the approval of the Director of Public Instruction. If the Headmaster is elected as the Secretary he shall not attend the meeting of the managing committee at the time that his personal case is under consideration. (4) The Director of Public Instruction shall have the power to remove the Secretary or any member of the managing committee of the school after giving him a reasonable opportunity to explain his position. The Director will be the solo judge to decide if the opportunity given is reasonable. Any vacancy may he filled temporarily by nomination by the Director pending its being filled up in the prescribed manner. (5) Any member failing to attend four consecutive meetings shall cease to be a member and the fact shall he report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule (b) above, not more than two seats will go to the guardians of the pupils reading in the school. The guardian members will be selected by the rest of the Managing Committee. (d) Not more than three nominees of the Director of Public Instruction. (e) The Headmaster (Ex-officio). (f) A representative of the teachers. 3. Orders contained in paras 2-9 and 11 of the Government Resolution no cited above shall apply totheManaging CommitteeofHigh Schools run by missionaries and other societies or trusts. The main question presented for determination in this case is whether the petitioner is entitled to invoke the protection guaranteed under Article 30 of the Constitution, which states as follows : 30. (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. (2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language. It is necessary also to refer in this connection to Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late. It must, therefore, be taken that the Brahmo Samaj is religious miniority within the meaning of Art. 30 of the Constitution and entitled to protection under that Article. It is also the case of the petitioner that the Samaj has established the Batika Vidyalaya. This statement is also not denied by respondents Nos. 1 to 3. There is also no affidavit by respondents Nos. 4 to 13 on this point. There is also plenty of material on the record of the case to support the statement of the petitioner that the Banka Vidyalaya was established by the Samaj. In the year 1930 the Samaj conceived the idea of starting a Girls' School and formed a provisional committee for drawing up a scheme by resolution No. 2 of the Executive Committee of the Samaj, dated the 22nd October, 1930. A scheme was drawn up by the said provisional committee, and it was approved at a General Meeting of the Samaj held on the 30th November, 1930, and it was resolved that a girls' school should be established in the name of Bankipur Baiika Vidyalaya and a Managing Committee was appointed by the Samaj for the year 1931 with Sri Asutosh Mukherji as the Secretary of the school. Copies of the resolutions are ann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional purposes only with the sanction of the above Executive Committee. Worship of idols and images shall, however, in no circumstances be permitted in the buildings or premises of the Balika Vidyalaya. X X X X X X X 11. Details relating to school discipline and teaching, such as arrangement of classes, preparing the time-table, selection of the candidates for the Matriculation Examination etc. shall be in charge Of the Headmistress; acting under the guidance of the University and the Education Department. x x x x x x x 13. The Managing Committee shall be appointed for one year, viz. from the 1st April of one year to the 31st March of the next year. But it shall continue, in office until the next Managing Committee has actually taken over charge. 14. Vacancies occurring in Managing Committee during the year shall be filled up By the remaining members, subject to confirmation by the Executive Committee of the B. S. S. x x x x x x x x x x 18. In all other matters the rules framed by the Governor of Bihar for Managing Committee of aided school in respect of quorum notice, frequency of meetings and the general conduct of busi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution of the school prohibits idolatry in any form, and there is an affidavit of Miss Sudhakana Bose, the Headmistress of the school and Secretary of the Samaj, to this effect. It is also stated in her affidavit that important Brahmo holidays, namely, 11th of Magh, the Foundation Day of Brahmo Samaj, the 19th of November, the birth anniversary of Keshav Chandra Sen, are observed in the school. The argument put forward on behalf of the petitioner is that the Brahmo religion is observed in the teaching of the School. But the contention of Mr. P. R. Das on behalf of the petitioner is that even if Brahmo religion is not taught in the school and even if the majority of pupil are not Brahmo still the petitioner will be entitled to invoke the protection of Article 30 of the Constitution. In my opinion the argument addressed by learned Counsel on behalf of the petitioner is well founded and must be accepted as correct. Under Article 30 of the Constitution the Samaj religious minority has two rights--(a) to establish a school of its choice, and (b) to administer it. The language of the Article does not require that the majority of the students in the school must belong to the reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 30 (1) only applies to such institutions which are established by the religious minority for the benefit of that minority. In other words, the argument was that the educational institution must have the majority of pupils belonging to the minority religion in order to qualify itself for the protection of Article 30 (1) of the Constitution. I am unable to accept this argument as correct. There is no warrant for this argument in the language of the Article itself. There is no express limitation to that effect in Article 30 (1) of the Constitution, and to accept this limitation would necessarily involve reading of additional words such as for their own benefit in the Article which is ordinarily not permissible according to well established rules of construction. My concluded opinion, therefore, is that the Samaj is entitled to protection under Article 30 (1) of the Constitution, even though the school does not have the majority of students of the Brahmo Samaj on its roll and even though Brahmo religion is not taught as part of the School curriculum. The view that I have expressed is borne out by the decision of the Supreme Court in In re, Kerala Education Bill, 1957 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h educational institutions. As such minorities will ordinarily desire that their children should be brought up properly and efficiently and the eligible for higher university education and go out in the world fully equipped with such intellectual attainments as will make them fit for entering the public services, educational institutions of their choice will necessarily include institutions imparting general secular education also. In other words, the Article leaves it to their choice to establish such educational institutions as will serve both purposes, namely, the purpose of conserving their religion, language or culture, and also the purpose of giving a thorough, good general education to their children. The next thing to note is that the Article, in terms, gives all minorities, whether based on religion or language, two rights namely, the right to establish and tlie right to administer educational institutions of their choice. The key to the understanding of the true meaning and implication of the Article under consideration are the words 'of their own choice'. It is said that the dominant word is 'choice' and the content of that Article is as wide as the choic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they arc so harmless to others or to the State as those we deal with here the price is not too great. But freedom to differ is not limited to things that do not master much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order: If there is any fixed star in our constitutional constellation it is that no official, high or petty, 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. I am, therefore, of the opinion that the resolutions of the State Government, dated the 28th September, 1954, and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be issued only if the facts were not in dispute and the title to the property in dispute was clear. That is the gist of the principle laid down in that case. It is manifest that in the present case the petitioner is entitled to grant of a writ on the basis of admitted facts and on the interpretation of the question of law with regard to Article 30 of the Constitution it is true that a writ of mandamus is a remedy of public law and will not be issued to a private individual in a matter of purely private right. In the present case the main question at issue, however, relates to the constitutional validity of the order of the Board of Secondary Education, which is a statutory body, and also to the constitutional validity of the resolutions of the State Government dated the 28th September, 1954, and the 7th May, 1956. It is true that the question of the right of respondents Nos. 4 to 13 to manage and administer the school is also involved in the present case. But that question is only incidental to the principal question of the constitutional validity of the order of the Board of Secondary Education which is impeached in the present case. I should refer in this connection to a passa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Rex v. Barker, (1762) 3. Burr 1264 at page 1267, that a writ of mandamus had been introduced to prevent disorder from a failure of justice and defect of police and that within the last century it had been liberally interposed for the benefit of die subject and advancement of justice . It was also pointed Out by Sir W. Blackstone in his Commentaries on the Laws of England, Volume III, at page 264, that the writ of mandamus is also made by the same statute 9 Ans. c. 20, a most full and effectual remedy, in the first place, for refusal of admission where a person is entitled to an office or place in any such corporation; and, secondly, for wrongful removal when a person is legally possessed. These are injuries, for which though redress for the party interested may be has by assize or other means, yet as the franchises concern the public, and may affect the administration of justice, this prerogative writ also issues from the court of King's bench; commanding, upon good cause shown to the Court, the party complaining to be admitted or restored to his office. 11. For these reasons, I consider that in the present case a writ of mandamus should go principally to respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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