M.M. Dutt, J.
1. This application has been filed by the appellants who are the teachers of the Central Model School situate, at 220/2, Lower Circular Road, Calcutta, praying for the stay of the interim order dated May 10, 1983 passed by Barooah, J staying the operationof the order dated May 7, 1983 of the President of the West Bengal Board of Secondary Education appointing an administrator to take charge of the management of the said School. The said interim order was passed by the learned Judge while issuing a Rule Nisi on the application under Article 226 of the Constitution made by Gurh Nanak Education Trust and others, inter alia, challenging the appointment of the administrator by the President of the West Bengal Board of Secondary Education.
2. In the writ application, it has been inter alia alleged that the said school is a minority school of the Sikh community in the State of West Bengal, and that in view of the provisions of Articles 26 and 30 of the Constitution the West Bengal Board of Secondary Education, hereinafter referred to as the Board, has no authority whatsoever to interfere with the right of management of the Managing Committee of the School. Further, it has been alleged that the President of the Board purported to supersede the Managing Committee of the school by appointing an administrator without giving the Managing Committee of the school any opportunity of being heard. The learned Judge, as stated already, passed the impugned interim order staying the said order of the Board appointing an administrator of the school. We are told that the learned Judge has given directions for affidavits to be filed by the parties in the Rule Nisi and fixed the hearing of the application on July 13, 1983. The teachers of the School who are not parties in the writ application have, however, filed the connected appeal and made this application praying for the stay of operation of the impugned order of the learned Judge dt May 10, 1983.
3. The present application has been supported by the Board and the State Government. The principal contention of the appellants, the Board and of the State Government is that the school in question is not a minority school as alleged by the writ petitioners. It has been urged that the Court should prima facie decide the question as to whether the school is a minority school or not within the meaning of Article 30 of the Constitution. In support of the contention that the school is not a minority school, it has been urged on behalf of the appellants that there is no provision in the school for teaching Punjabi language to the students, nor does the academic curriculum of the school include any religious teaching.
4. In the affidavit-in-opposition filed on behalf of the Board, it has been alleged that the school was established in 1955 as a general school not connected with any religious or linguistic minority or any religious or educational trust, and that 16 years after the establishment of the school, a private trust being Guru Nanak Education Trust was created for the management of the school. It has been submitted that by virtue of such trust the school does not come within the purview of Articles 26 and 30 of the Constitution and is not entitled to any benefit or privilege conferred by the said Articles on the ground of religious and linguistic minority.
5. It has been vehemently urged by Mr Somnath Chatterjee, learned Counsel appearing on behalf of the Board, that Article 30 postulates the establishment of an educational institution by a minority community and the simultaneous administration of such institution by the minority community. It is submitted that in the instant case, as the school was not established by the members of the minority community but by a private individual, the provision of Article 30 is inapplicable, even though subsequently the said Guru Nanak Education Trust may have taken over the management of the school. In support of his contention, Mr. Chatterjee has placed much reliance upon a decision of the Supreme Court in Azeez Basha v. Union of India, : 1SCR833 . In that case, it has been observed by Wanchoo, C. J. that the words 'establish and administer' in Article 30(1) of the Constitution must be read conjunctively and, so read, it clearly says that the minority will have the right to administer an educational institution of their choice provided they have established it, but not otherwise. Further, it has been observed that 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.
6. Besides the above contention, it has also been urged that the manage-ment of the school or the said Guru Nanak Education Trust has been mismanaging the school. Our attention has been drawn to certain averments in the present application of the appellants and in the affidavit-in-opposition of the Board relating to certain alleged mismanagement. It is also submitted on behalf of the appellants and the Board that the teachers of the school are poorly paid. It is, accordingly, submitted that in view of the mismanagement of the school, the Board has ample power to take such regulatory measures as it thinks fit for the proper running of the school even assuming that the school is a minority school. On these grounds it has been submitted on behalf of the appellants and the Board that the impugned order of the learned Judge should be stayed and/or vacated and the administrator should be allowed to take charge of the school and administer the same.
7. The question whether the school is a minority school or not will, of course, be decided by the learned Judge at the hearing of the Rule Nisi. In this interlocutory application or in the appeal preferred against the interim order of the learned Judge, it is not desirable that we should finally decide the question. However, as prayed on behalf of the appellants and the Board that we should at least prima facie consider the question for the purpose of this interlocutory application, we proceed to do the same.
8. In the writ application, there is a categorical averment that the school is a minority school. Before us an affidavit-in-opposition has been affirmed on behalf of the writ petitioners by Dr. Hira Lal Chopra, admittedly a distinguished educationist and a very respectable person. He is the President of Guru Nanak Education Trust as well as the President of the Managing Committee of the Central Model School. We get from his affidavit the history as to how the school came to be established. In para 9 of the affidavit-in-opposition, it has been averred, inter alia, that on April 13, 1955 there was a big congregation of Gurdwara Jagat Sudhir at Kalighat in commemoration of the birth of Khalsa Panth by Guru Govind Singh in that congregation. Dr. Chopra had the privilege to announce on behalf of the promoters of the school that the Punjabis, particularly the Sikhs, were going to have a school of their own where their children would get the education through English medium preserving their own linguistic and cultural heritage. The responsibility to establish the school was entrusted to Mrs. K. H. Singh who in spite of her pre-occupation agreed to shoulder the same. She did not accept any remuneration for rendering her service from the inception of the school till today as its Principal/Rector. On the other hand, she had spent a large sum of her own money for starting and developing the institution. Dr. Chopra as a member of the Punjabi Community and as an educationist by profession has been associated with the school since its inception. In the affidavit-in-opposition, a list of distinguished members of the Sikh Community of Calcutta who were involved or associated with the starting of the school has been given. Prima facie, we do not find any reason not to believe the averments of Dr. Chopra as made in his affidavit-in-opposition. It, therefore, prima facie appears from the said averments that the school was established and administered by the members of the Sikh Community. In other words, the school was founded by a minority community and not by a private individual as urged on behalf of the appellants and the Board. It is true that in the Trust Deed of the Guru Nanak Education Trust it has been recited by the said Mrs. K. H. Singh, the settlor, that in the year 1955, the settlor founded and established through her personal efforts and sacrifice and with her own money the said Central Model School. But in view of the said averments made by Dr. Chopra in his affidavit-in-opposition the recital made in the Trust Deed should be read and understood in the light of the facts disclosed in the said affidavit-in-opposition. The Court is concerned with the real fact as to the establishment of the school and if it is found that the school was established by the members of the minority community and not by any private individual although an individual member of that minority community exerted efforts, made sacrifice and spent money in that behalf as stated in the said affidavit of Dr. Chopra, the recital in the Trust Deed of the contrary shorn of those facts will not, in our opinion, be regarded as sacrosanct.
9. In paragraph 22 of the affidavit-in-opposition. It has been categorically stat-ed by Dr. Chopra that Punjabi is one of the languages which has always been taught in the school. Mrs. K. H. Singh taught Punjabi language besides one Master Tare Singh. Mrs, K. H. Singh herself is an Honours Graduate in Punjabi- In paragraph 28 of the affidavit-in-opposition, it is said that Sunday classes had always been and are still being held in the school with emphasis on Sikh religion, Sikh history and Guruvani.
10. The Government of West Bengal recognised the School as a minority community School which will appear from the letter of the Secretary, Education Department, Government of West Bengal, addressed to the Secretary, Central Model School whereby it was stated that the school was entitled to special constitution for its Managing Committee in terms of Rule 33 of the Rules for Management of Recognised Non-Government Institutions (Aided and Unaided), 1955. The Board was also apprised of the special constitution of the school by the letter dated July 16, 1974 of the Secretary of the School. In the said letter, it has been stated that the school caters to the special needs of the Punjabi, Sikh boys and girls who wish to learn Punjabi language and also imbibes the Punjabi culture. It also appears that from time to time the school kept the President of the Board informed of the constitution and re-constitution of the Managing Committee of the school. Such information was given up to February 20, 1982 after the present Managing Committee was reconstituted. It is significant to notice that since the inception of the school, neither the Government nor the Board had ever raised any objection to the special constitution of the Managing Committee of the school available to a minority community school. No allegation was ever made relating to the mismanagement of the school by its Managing Committee. Prima facie it appears to us to be curious that without serving any notice on the Managing Committee of the school, that is to say, without giving the Managing Committee an opportunity of being, heard the Board purported to supersede the Managing Committee by the appointment of an administrator. Needless to say, the allegations of mismanagement as made by the appellants in the present application have been denied in the affidavit-in-opposition affirmed by Dr. Chopra,
11. It is unformuntate that the teachers have come forward to support the supersession of the school by 'the Board. The only grievance of the teachers can be with regard to the salaries they are being paid. They, however, never made any representation to the authorities of the school for enhancement of their basic salary. It is only after the issuance of the Rule Nisi, that on May 19, 1983 they made a representation to the Secretary of the School for redress of certain grievances including their grievance against the low basic salary. After the receipt of the said representation, an emergency meeting of the Managing Committee was covened for the purpose of considering the general representation of the teachers dated May 19, 1983. We are told that in that meeting, a sub-committee, of which the appellant No. l is a member, has been formed for the consideration of the grievances of the teachers and also regarding the enhancement of their salary. Thus we do not find any justification for the teachers to file the con-nected appeal and the application against the Managing Committee of the school. Moreover, there is great doubt as to the maintainibility of the appeal.
12. Be that as it may, as the school is prima facie found by us to be a minority community school, the Board has no authority to interfere with the management of the school by the appointment of an administrator. Indeed, the Board can lay down certain regulatory measures to be followed by the school for the proper running of the school as held in the decision of the Supreme Court in All Saints High School v. Government of Andhra Pradesh, : 2SCR924 . Such regulatory measures can be taken only if the Board is satisfied about the alleged mismanagement after giving the Management of the school an opportunity of being heard. The Board cannot, however, under any circumstance interfere with the management of the school by superseding the Managing Committee and appointing an administrator to take charge of the school and administer the same. It is significant to be noticed that in the impugned order of supersession, no allegation has been made as to the mismanagement of the school.
13. In the circumstances, we are prima facie of the opinion that the learned Judge was perfectly justified in passing the interim order of stay of the operation of the order of the Board superseding the Managing Committee by the appointment of an administrator.
14. This order virtually disposes of the appeal and it will be useless to keep the appeal pending. Accordingly, the appeal is treated as on day's list and both the appeal and the application are dismissed. There will, however, be no order as to costs.
15. It is recorded that Mr. Jatin Ghose appearing for the School and Guru Nanak Education Trust states that no penal action will be taken against any member of the teaching or non-teaching staff without the leave of the trial Court till the disposal of the writ petition.