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Sushil Kumar Sen and anr. Vs. State of Assam and ors. - Court Judgment

LegalCrystal Citation
CourtGuwahati High Court
Decided On
Case NumberCivil Rule No. 583 of 1982
ActsConstitution of India - Articles 29, 30, 30(1), 41, 45 and 51; Assam Aided Higher Secondary, High and Meddle Schools Manegement Rules, 1976 - Rules 6 and 7
AppellantSushil Kumar Sen and anr.
RespondentState of Assam and ors.
Appellant AdvocateK. Sarma, C.K. Sarma Barua and B.N. Sarma, Advs.
Respondent AdvocateS.N. Bhuyan, B.C. Das and A.H. Saikia, Advs.
DispositionPetition allowed
.....general and the institution in particular will be best served. let it be stated clearly that the minority institution cannot be asked to mortgage its autonomy as a condition of granting aid. in re kerala education bill (air 1958 sc 956), by stating that imposition of stringent terms for receipt of grant will infringe the right conferred by article 30(1). it was pointed out that no educational institution can in modern times afford to subsist and efficiently function without some state-aid, and to ask them to surrender their constitutional right of administering their educational institutions because of the receipt of grant would seriously impinge the right. if for receiving aid, without which no educational institution can really function these days, the minority schools have to lose..........of a minority, whether based on religion or language.' 2. the petitioners are attached to a minority institution the same being 'vivekanand vidya mandir m. e. school.' there is no denial that this school belongs to the bengali community who have to be regarded as a linguistic minority in this state. what has led the petitioners to approach this court is re-constitution of the managing committee of the school by an order passed on 4-6-82. by that order during the continuance of the period of the earlier managing committee of which the two petitioners are the members, a new committee was brought into existence. it may be stated that the earlier committees had been constituted by an order passed on 20-7-81 and it was to work for a period of three years. as such, there is no dispute.....

Hansaria, J.

1. There are two important articles in the constitution which protect the cultural and educational rights of the people of the country. They are Articles 29 and 30 and these have been incorporated in the part dealing with the mental rights. Of these two provisions, the one with which we are mainly concerned is Article 30 which states that-

'30 Right of minorities to establish and administer educational institutions--(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

(1A) * * *

(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.'

2. The petitioners are attached to a minority institution the same being 'Vivekanand Vidya Mandir M. E. School.'

There is no denial that this school belongs to the Bengali community who have to be regarded as a linguistic minority in this State. What has led the petitioners to approach this Court is re-constitution of the Managing Committee of the School by an order passed on 4-6-82. By that order during the continuance of the period of the earlier Managing Committee of which the two petitioners are the members, a new Committee was brought into existence. It may be stated that the earlier Committees had been constituted by an order passed on 20-7-81 and it was to work for a period of three years. As such, there is no dispute that the new Committee has seen its birth during the period the old Committee would have otherwise continued. The grievance of the petitioners is that the old Committee was dissolved arbitrarily and without giving any opportunity in the matter. Shri Sarma contends that by doing so, Article 30 of the Constitution has also been violated.

3. As no counter at all has been filed by the Inspector of Schools who had reconstituted the Committee, nor by any other authority of the State, we are not in a position to know for definite as to what had led to the dissolution of the Committee formed on 20th July, 1981. At this stage we may refer to the Assam Aided Higher Secondary, High and Middle Schools Management Rules, 1976, under which provision power has been exercised in the present case. Rule 4 of these Rules has stated that save incases where the Director of Public Instruction sanctions a special committee under special circumstances, each Managing Committee shall consist of:--

(i). President.

(ii). Secretary

(iii). Two teachers' representatives.

(iv). Two representatives to be elected by the guardians.

(v). One donors' representative.

(vi). Three nominees of the Government

(vii). Assistant Headmaster/Vice Principal Ex-officio

The Rule further says that the President shall be nominated by the Government and the Headmaster of the School shall be nominated as ex-officio Secretary unless there is a specific allegation against him. The ordinary term of the Managing Committee is for a period of three years to be counted from the date of the first sitting as stated in Rule 7. This is, however, subject to Rule 6, which read :--

'6. The Inspector of Schools may dissolve and reconstitute a Managing Committee at any time, if circumstances so demand subject to the approval of the Director save in cases where such approval may be presumed to have been obtained under any general or special order of the Director'.

4. Thus, though we find a power in the Inspector of Schools to dissolve and reconstitute the Managing Committee at any time, this is subject to two conditions: (a) the circumstances must so demand; and (b) this must be subject to the approval of the Director of Public Instruction, save in those cases when approval may be presumed to have been obtained under the general or special power. There is absolutely nothing on record before us to show the circumstances which had led the Inspector of Schools to dissolve the Committee formed on 20th July 1981. Shri Bhuyan refers to the affidavit-in-opposition of respondents Nos. 5 and 12 who are the members of the newly reconstituted Managing Committee to urge that there were, serious allegations against the old Committee, to substantiate which some documents have been enclosed with the affidavit. Of these, Annexure A is dated 4-4-81 and as such cannot bo related to anything done by a Committee which came into existence on 20th July 1931. We do not propose to pursue this matter on the averments in this affidavit because these respondents cannot throw light as to what had led, the Inspector of Schools, to exercise is power under Rule 6. In the absence of any affidavit from him, or of connected records, before us, we have no alternative but to conclude that the present was a case of ultra vires exercise of power. This in itself is enough to set aside the impugned order.

4A. Though Shri Bhuyan has referred to us in this connection to the State of Assam v. Ajit Kumar Sarma, AIR 1965 SC 1196, wherein writ of mandamus was held to be not available to ask for enforcement or non-enforcement of executive instructions, (as are the Rules at hand), we think this decision cannot stand in the way of the petitioners for these reasons: First, Ajit Kumar Sarma's was not a case where the authorities were acting against the executive instructions, whereas the present is. Secondly, the power of this Court is not confined to issuance of the named writs under Article 226. Reference may be made to Calcutta Discount Company v. I. T. O. AIR 1961 SC 372, to bring home this point. It has been stated in paragraph 27 of that judgment that though in a case where writ of prohibition may not lie, a High Court may issue an order or direction prohibiting an administrative authority not to act beyond its jurisdiction. Thirdly, and more importantly, Article 30 of the Constitution takes care of executive actions also if they impinge on the right conferred by that article. This would be apparent from what has been stated in Sidharajbhai v. State of Gujarat, AIR 1963 SC 540 (para 10) and Lilly Kurian v. Sr. Lewina, AIR 1979 SC 52 (para 32).

5. We now propose to highlight some aspects relating to the minority educational institutions as we feel that the authorities should be apprised of the constitutional safeguards given to these institutions of which they do not seem to be fully aware. Before this is done, let it be stated that according to us if an existing Managing Committee has to be dissolved due tc some allegations against it, principles of natural justice would demand that they should be apprised of the same and appropriate opportunity should be given to them to have their say in the matter, as dissolution of such a Committee involves civil consequences of the nature described in S. L. Kapoor v. Jagmohan, AIR 1981 SC 136. It is well settled by now that natural justice has to be respected even in administrative action if they adversely affect a person or involve civil consequence.

6. To the meat of the matter now which is related to the width and scope of the right conferred by Article 30 of the Constitution on the religious and linguistic minorities to establish and administer educational institutions of their choice. At first, let it be made clear that administration includes management of the affairs of the institution. And as stated in State of Kcrala v. Very. Rev. Mother Provincial, AIR 1970 SC 2079 (at p. 2082):--

'[T]his 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 interests of the community in general and the institution in particular will be best served. No part of this management can be taken away and vested in another body without an encroachment upon the guaranteed right'.

This has been regarded as the hallmark of the right conferred by Article 30 of the Constitution, right from the first thorough examination of this point by the Supreme Court in In Re Kerala Education Bill, AIR 1958 SC 956 to All Saints High School v. Government of Andhra Pradesh, AIR 1980 SC 1042. Further, this right is absolute, unfettered and unconditional unlike Article 19. Even so, it does not mean that this gives a free licence for maladministration inasmuch as the right conferred by Article 30 is of administration and not of maladministration. As such it has been accepted that the State or any other statutory authority can take regulatory measures to promote the efficiency and excellence of educational standard and issue guidelines for the purpose of ensuring the security of the service of the teachers and other employees of the institutions, so also to take care of the standard of education, the University can prescribe curricula and may impose some reasonable conditions of affiliation. But in the garb of adopting regulatory measures, the administrative autonomy of the institution cannot be destroyed.

7. In this connection, Shri Bhuyan has contended that as the school in question in receipt of the Government aid, the Slate could have its say in the management to see that the aid is properly used. Let it be stated clearly that the minority institution cannot be asked to mortgage its autonomy as a condition of granting aid. As the power of purse could have interfered with the right conferred by Clause (1) of this Article, it was made clear in Clause (2) by the wise founding fathers that the State shall not discriminate in granting aid to educational institution on the ground that it is under the management of a minority. Of course, to see to its secular character, it has been stated in Sub-article (2) of Article 29 that no citizen could be denied admission in an aided institution on the ground only of religion, race, caste, language or any of them. But, then, the minority institution in receipt of aid could not be denuded of its control over the institution. This aspect was dealt with in the very first case. In re Kerala Education Bill (AIR 1958 SC 956), by stating that imposition of stringent terms for receipt of grant will infringe the right conferred by Article 30(1). It was pointed out that no educational institution can in modern times afford to subsist and efficiently function without some State-aid, and to ask them to surrender their constitutional right of administering their educational institutions because of the receipt of grant would seriously impinge the right. If for receiving aid, without which no educational institution can really function these days, the minority schools have to lose their identity, and allow outsiders to manage their institutions, the right guaranteed by Article 30 will be but a 'teasing illusion' and a promise of unreality, as observed in paragraph 15 of Sidhrajbhai (AIR 1963 SC 540) (supra). It has been stated clearly in this judgment by the Constitution Bench that regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution, while retaining its minority character, as a minority institution effective as an educational institution. Such regulation must satisfy a dual test--the test of reasonableness and the test that it is regulative of the educational character of the institution and is conductive to making it an effective vehicle of education for the minority community or other persons who resort to it.

8. We do not propose to burden this judgment with various illuminating pronouncements of the apex Court, but would confine ourselves with what has fallen from their Lordships of a 9-Judge Bench in St. Xavier College v. State of Gujarat, AIR 1974 SC 1389. In this epoch-making judgment the highest Court of the land was concerned, inter alia, with the vires of Section 33-A of provisions in Gujarat University Act which had stated among others that every college shall be under the management of a governing body which shall include amongst its members the Principal of the College, a representative of the University nominated by the Vice-Chancellor and representatives of teachers and non-teaching staff and students of the college. It was held that the effect of such a provision would be to displace the management and entrust it to a different agency because of which the autonomy in administration would be lost. It was, therefore, held that this provision could not apply to minority institution.

9. We would cut-short this odyssey by referring to the latest decision of the Supreme Court in All Saints High School, AIR 1980 SC 1042 (supra), wherein the Court was concerned inter alia with a provision in Andhra Pradesh Recognised Private Educational Institutions Control Act, 1975, which had required prior approval of the competent authority in case of dismissal, removal or reduction in rank of a teacher. The majority held this provision contained in Section 3 (1) of the Act as violative of Article 30(1) of the Constitution, because that was regarded as a serious inroad in the fundamental right of the minority institutions to administer or manage their own affairs.

10. There are catena of other decisions on the different facets of the constitutional right of a minority institution. We cannot resist the temptation of referring to Lilly Kurian (AIR 1979 SC 52) (supra) in which the provision of an appeal before the Vice-Chancellor in the matter relating to dismissal of a teacher of a minority institution was held to be unconstitutional. Similar other provisions have been struck down by the apex Court in D. A. V. College, v. State of Punjab, AIR 1971 SC 1737 and other decisions referred to above.

11. In fine, what we propose to bring home to all concerned is that while dealing with minority institutions it has to be seen that the right enshrined in Article 30 of the Constitution is not thrown to the winds either in the name of giving aid to them or in the name of regulating their affairs. We would think that in the present case the too-often changes made in the Managing Committee of the School has itself been violative of Article 30 of the Constitution. From the records available to us it appears that before the reconstitution of the Committee on 20th July 1981, another Committee had been formed only about a month before and that came to

be reconstituted for some reasons with

which we are not concerned. Too often

changes in the Managing Committee of a

school do tell upon the educational efficiency of the school and may ruin the

educational career of the students. Let

us hope that all concerned would put

their heads together and see that the

school in the name of one of the greatest

sons of India proves itself true to its

title and all ranccuring ends to give the

Bengali speaking students an education

worth its name.

12. With these observations and for the aforesaid reasons, the petition is allowed and the impugned order is set aside. Before considering the question of reconstitution of the Committee let the authorities examine whether the type of Committee visualised by Rule 4 satisfies the requirement of Article 30.

Dr. Singh, J.

13. Few thoughts have occurred to me reading the enlightened judgment of my noble brother to whose conclusions I have little to add save saying that his reasons, which I propose merely to supplement, have also my concurrence in quashing the impugned order. I feel impelled, however, to express my own views on the constitutional aspect of the lis as it appears to me to involve an issue of public importance and therefore the shaded areas of the judicial debate carried on even at the apex level need be lighted and the camouflage denuded.

14. What appears to me to be the soul of Articles 29 and 30 of our suprema lex, as has been spelt out in the decisions of the apex court referred in the leading judgment, is that benevolent supervision of Stale over management of educational institutions 'established', 'managed' or 'administered' by groups of people belonging to linguistic minority is not prohibited; what is sought to be interdicted is 'control' in the nature autocratic interference in the management of such institutions to pre-empt happening of such event as may lead to a situation 'which would reduce the management to helpless entity having no say in the matter and thus destroy the very personality and individuality of the institution which is fully protected by Article 30.' (per Fazal Ali, J. in All Saints High School (AIR 1980 SC 1042) (supra)). There may be occasions, and as experience has shown, and indeed the fact-situation of the instant case itself reveals that aspect, that at times group-infighting reach crescendos of such high pitch that it not only threatens to, but at times does drown, engulf and even consume the sublime and noble objects of education itself, to the great detriment of the cause which such institutions are supposed to espouse and also of the interest of those who are supposed to be served by them. Departmental rules and actions may therefore legitimately take care of such situations but this can be done efficiently and effectively only when these are motivated to achieve nothing else than the immediate objective to ensure that the standard of education in such institutions is duly maintained by an agency capable of playing its assigned role conscientiously and meaningfully. State supervision which indeed is underscored by the mandate of the Directive Principles enshrined in Articles 41 and 45 may not only be necessary but also desirable, for, the ultimate duty and responsibility to provide education to all its citizens (minorities included) rest with the State. But, any attempt to transcend the permissible limit in the garb of supervision will not admit the tolerance either of Articles 29 and 30 or of Articles 41 and 45 when the institutions concerned belong to a class to which our founding fathers extended a protective umbrella for good and valid reasons. That the two Articles 29 and 30, might overlap in certain cases was recognised in the monumental decision in St. Xavier College AIR 1974 Sc 1389 (supra) wherein it was also held (per Mathew, J. and Chandrachud J., as he then was) that Article 29(1) cannot limit the width of Article 30(1). In the same case Ray, CJ. and Palekar. J. observed that 'regulatory measures are necessary for ensuring orderly, efficient and sound administration even for t he sake of maintaining the 'educational character and content' of the minority institutions. It was further held by their Lordships that regulations are also 'necessary to see that there are no divisive and disintegrating forces in administration.

15. The problem of a linguistic minority and the question of recognition of its cultural aspirations are unique neither to our country nor to our constitution. Ours is, though a truncated subcontinent geographically, it really is a land inhabited by people of a large variety of ethnic groups whose linguistic identity is indeed constitutionally recognised in the Eighth Schedule of the Constitution so that it can very well claim to be a continent in demographic perspective. Our founding fathers were fully cognizant of this situation and of the necessity to maintain unity among the diverse people and also the territorial integrity of the country. This they thought could be achieved by a slow, subtle, steady and sure integretive process which would be unique of its kind. Little did they think then that they were setting up a model to deal with similar global phenomena, in Articles 29, 30, 41 and 45. Later efforts of the international agency concerned with codifying legal norms of human rights found the model worthy of emulation and if they did improve upon it, it was done in a manner that merely spelt out expressly the potential purport of the aforesaid provisions of our Constitution. I say so because I have in my view the provisions of the (international) 'Convention Against discrimination in Education, 1960' which entered force only on 22nd May' 62 though adopted by the General Conference of UNESCO on 14th December/60. Of this document Article 5 particularly deserves careful attention. While liberty of parents to choose for their children institutions other than those maintained by the State is recognised these, it is postulated, must conform to 'such minimum standard as may be laid down or approved by the competent authorities'. It is, however, Clause (c) of Article 5(1) which merits serious consideration in that it states; 'it is essential to recognise the rights of members of international minorities to carry on their own educational activities including the maintenance of school'. But, this statement is significantly saddled by the following proviso:

'That this right is not exercised in a manner which prevents the members of these minorities from understanding the culture and language of the community as a whole and from participating in its activities; or which prejudicies national sovereignty'.

16. I have deliberately referred to the international dimension of the legal and constitutional aspects of the educational and cultural rights posited in Articles 29 and 30 of our Constitution as, according to me, the progressive interpretative technology permits such a course recognition for which has built up not only abroad in comparable jurisdiction but even in the legal system of our own country. Not long ago, in 1962, Lord Denning observed in the Corocroft case (1969-1 All ER 82) that it was the duty of the national courts to construe any domestic legislation in a manner that would bring it 'in conformity with international law and not in conflict with it'. This lead gained momentum there as is reflected in the later decisions of the superior courts of Great Britain (see, R. v. Miah. (1974) 1 WLR 683. Bhajan Singh, (1975) 3 WLR 225. etc). The highest court of our land has also shown preference for the same technique and indeed it was easy for our apex court to do so in view of the constitutional mandate of Article 51. A reference in this connection may be made to the decision in Keshavananda Bharati, AIR 1973 SC 1461 (per Sikri, C. J.) the Sukla's case AIR 1976 SC 1207 (per Khanna, J.).

17. As observed earlier, I have, therefore, considered it necessary to read Article 30 not in isolation but together with Article 29 and that too against the backdrop of Articles 41 and 45, as it appears to me that by doing so it will be possible to harmonise the provisions inter se as well as in relation to the international norms and more importantly to divine with greater exactitude the legislative intent by which alone the scope and ambit of the provisions under consideration in any case can be realistically marked out in juridical terms in conformity albeit with the groundnorm. And as earlier stated, in this case, I read the relevant provision as suggesting benevolent supervision in the constitutional perspective. Indeed, I would, therefore, read Rule 6, invoked in this case by the authorities passing the impugned order, to mean that the exercise of the power given thereunder which is obviously saddled by two conditions as indicated in the leading judgment, must be self-directory to the care and caution necessary for the exercise of the power. On a priori consideration therefore in my opinion, the order must manifest on its face consideration of the 'circumstances' leading to the use of the drastic power of 'dissolution'. There may be cases when an occasion may arise creating a genuine necessity for the exercise of the power in the larger interest of the institution itself or for the more important cause of the education itself and sometime even emergent situation may call for such power being invoked with utmost expedition so that it may be only possible while meeting the requirements of the principles of natural justice to give a post-decisional hearing to the managing committee whose continuance in office may appear harmful or undesirable (see Maneka Gandhi, AIR 1978 SC 597).

18. In my opinion it is also possible, nay, necessary, to read the provisions of Rule 6 in a manner which will mollify its rigour for the reason adverted to in the preceding paragraph. There may be 'circumstances' when resort to such drastic measure as 'dissolution' outright and a consequential 'reconstitution' of a new Managing Committee may not only be unwarranted by the facts of the case but 'may smack of an autocratic interference. Therefore, the term 'dissolution' should be read, in my opinion, as including 'suspension'. Because, not infrequently intermeddlcrs and interlopers tend to tear asunder what ought to be, and remain, the cohesive fabric of the management-machinery which they may do whether for personal gain or for other reasons sacrificing even the minority character and individuality of the institution or the cause of education itself dissuading or discouraging thereby selfless, efficient and devoted persons from associating or continuing their association with such machinery. Therefore, frequent and injudicious 'dissolution' and ''reconstitution' may in many cases prove counter-productive. If, therefore, Rule 6 is to be read as inhering the power of benevolent supervision, and this according to me should be purport of the provision to escape the cudgel of Article 30 as interpreted above, the expression 'dissolution' and 'reconstitution' ought to be read as embracing not a single but two situations as I would read 'dissolution' to include' suspension'. I would, therefore, postulate that it may not be necessary to 'reconstitute' a committee every time the power under Rule is invoked. I would read in the provision of Rule 6 the requirement of a show-cause notice which may, if necessary, be exercised in conj unction with the power of suspension in appropriate cases. What is necessary to ensure is that the existing Managing Committee should have an opportunity to explain its position in regard in the circumstances' which may appear to the competent authority as projecting a situation necessitating 'reconstitution' of the committee. Indeed, there may be occasions when such suspension may have to follow an inquiry and not precede it and the result of the inquiry may rather necessitate 'reconstitution' if 'circumstances'' of the case so require but 'reconstitution' need not be considered as a necessary corollary to 'dissolution' as a 'suspension' would be revocable if 'circumstances' do not necessitate a 'reconstitution'. These guidelines I have suggested in the context of the fact-situation of the instant case. These need not however be considered as exhaustive of the concept of benevolent supervision.

19. Indeed, in the instant case there being neither any show-cause notice nor any inquiry made in any manner and the 'circumstances' necessitating 'dissolution' and 'reconstitution' not being manifested in the impugned order, I agree with my learned brother that the petition must be allowed. I shall be happy, however, if the rule-making authority should think it necessary to consider necessary amendments to be made in the relevant Rules to make the same constitutionally agreeable as a measure of benevolent supervision in the light of the views expressed in this judgment. The necessity to preclude the possibility of autocratic interference arises due to reason especially that, the rules restrict the normal tenure of a Managing Committee to three years and during this short period frequent tampering with the management machinery may defeat the constitutional objectives and imperatives.

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