Sri Jain Kanya Pathshala High School, Arrah v. The State of Bihar

under Sri Dev Kumar Jain Shiksha Nidhi Trust (hereinafter referred to as `the Trust’ for the sake of brevity), which was created by Jain Minority Community in the year 1907 with a Middle School under it, which was also declared a minority school by the Education Department, Government of Bihar vide its letter dated 27.08.1976 (Annexure 7).

3. Learned counsel for the petitioners stated that in the year 1970, the Trust established Jain Kanya Pathshala High School and subsequently on 01.05.1975 (Annexure 9) it filed an application in the prescribed form before the authorities for establishing the institution. However, subsequently the State Government gave its permission for establishing the School vide order dated 16.11.1979 (Annexure 10) as all the criteria were Patna High Court CWJC No.2314 of 1997 (17) dt.17-05-2013 fulfilled.

4. Learned counsel for the petitioners submitted that thereafter an enquiry was held, whereafter report dated 22.05.1980 (Annexure 11) was submitted recommending permanent recognition to the School, but since the recommendation was not for recognition as a minority institution, the petitioner filed application dated 22.10.1981 before the authority concerned for declaring the School as minority institution, whereafter again an enquiry was held and the District Inspectress of School, Bhojpur sent report dated 16.11.1981 (Annexure 12) to the Director, Women Education, for recognition of the School as a minority institution.

5. However, in the meantime the State Government issued notification dated 07.08.1981 (Annexure 2) under the provisions of the Bihar Non-Government Secondary Schools (Taking over Management and Control) Ordinance, 1980 and as a consequence of take over of the School, the Government issued another notification under section 3 of the said Ordinance taking over the services of the staff of the School. Against the said notification dated 07.08.1981, the petitioners moved this Court vide C.W.J.C. No. 4515 of 1981 and after hearing the parties and considering the materials on record, a Bench of this Court allowed Patna High Court CWJC No.2314 of 1997 (17) dt.17-05-2013 the said writ petition vide its order dated 16.01.1986 (Annexure 4) quashing the impugned notification and a liberty was given to the respondents to hold an enquiry in the matter and if the result of the enquiry came against the petitioner, the Government would be at liberty to issue a fresh notification for taking over the School.

6. Since the aforesaid order of this Court dated

16.01.1986 was not complied by the authorities, the petitioners’ School filed another writ petition bearing C.W.J.C. No. 3472 of 1988, which was heard by a Division Bench of this Court and it was disposed of vide order dated 26.05.1988 (Annexure 5) holding that the Jains were minority community, which was not disputed by the Government and hence the authorities of the Education Department were directed to decide the question as to whether the School was actually being run by the minority community and then pass necessary orders relevant to the issue. It was also directed that the petitioners had already filed their application in proper format with required declaration and if they had not done so, they would do so within two weeks and, thereafter, the authorities of the Education Department should decide it within a month.

7. Learned counsel for the petitioners claimed that thereafter the authorities took the matter seriously and held an Patna High Court CWJC No.2314 of 1997 (17) dt.17-05-2013 enquiry, whereafter order dated 05.08.1988 (Annexure 6) was passed by the Director, Secondary Education, Government of Bihar, finding the School to be a minority school fulfilling all the criteria except the condition of land and building and hence recognition as a minority school was to be given to the School only after fulfilling the criteria of land and building also and, thereafter, issued order dated 11.03.1993 directing not to take over the School (Annexure 13).

8. Learned counsel for the petitioners argued that thereafter the petitioners filed repeated applications; such as applications dated 10.01.1994 (Annexure 14) and 12.01.1994 (Annexure 15), requesting the authorities of the State Government to declare the School as a minority school. However, no heed was paid by the authorities to the said applications and vide Government notification dated 31.01.1994 (Annexure 16), the School was taken over as general school.

9. Learned counsel for the petitioners asserted that against the aforesaid Government notification dated 31.01.1994, the petitioners approached this Court vide C.W.J.C. No. 1896 of 1994 and after hearing the parties a Bench of this Court vide its order dated 22.07.1996 (Annexure 17) partly allowed the writ petition directing the State of Bihar and its authorities to hold Patna High Court CWJC No.2314 of 1997 (17) dt.17-05-2013 enquiry and take a decision and pass appropriate order in accordance with law by 31.12.1996. It was also noted therein that if no such order was passed by the authorities within the aforesaid time prescribed, the impugned notification dated 31.01.1994 would stand quashed with effect from 01.01.1997.

10. Learned counsel for the petitioners argued that the aforesaid order of a Bench of this Court dated 22.07.1996 was never challenged by the respondents before any higher Court nor the authorities ever complied the said order and instead started taking coercive steps against the petitioners and hence the petitioners having no remedy left filed the instant writ petition for redressal of their grievances.

11. On the other hand, learned counsel for respondent- State of Bihar and its authorities (respondents no.1 and 2) relied upon section 2 of the Bihar Non-Government Secondary Schools (Taking Over of Management & Control) Act, 1981 (hereinafter referred to as `the Act’ for the sake of brevity), in which definitions of Non-Government Secondary Schools, Secondary Schools, Minority Secondary Schools, Proprietary Secondary Schools etc. had been provided and also referred to section 3 thereof, which was with respect to taking over control and management of Non-Government Secondary Schools by the State Patna High Court CWJC No.2314 of 1997 (17) dt.17-05-2013 Government, in which exemption was provided only for Minority Schools, the State Recognized Schools, Centrally Managed Schools and autonomous Proprietary Secondary Schools recognized by the Government. . He also referred to section 18 of the Act, which prescribed the procedure for recognition of minority secondary schools.

12. Learned counsel for respondents no.1 and 2 stated that the school in question was established by a group of persons in the year 1976 and they applied for its recognition as general Girls School on 01.05.1976 and, accordingly, the authorities granted permission vide order dated 16.11.1979 as general school for Girls. Thereafter, admittedly, the School in question was recognized and taken over as general Girls School under the provision of the Bihar Secondary Education Board Act, 1976 as amended by B.S.E.B. (Second Amendment) Ordinance, 1980. Hence the School never came under the exemption of 1976 Act as amended in the year 1980 nor did it come under the exemption of the Taking Over Act of 1981.

13. Learned counsel for the said respondents argued that in the said circumstances there was no occasion for assuming that the School in question was a minority institution, specially when much more than three decades have passed and during all Patna High Court CWJC No.2314 of 1997 (17) dt.17-05-2013 these days the School is imparting secular education and in addition to that +2 course is also continuing since 2007 and salaries + emoluments are being given to all its teachers and non- teaching staff by the Government. Hence, there is no merit in this writ petition, which is fit to be dismissed.

14. Learned counsel for private respondents no. 3 to 10, who are teaching and non-teaching staff of the School and had been added as parties vide order dated 10.04.1998 passed by a Bench of this Court, vehemently contested the claim of the petitioners and asserted that the petitioners’ School is not a minority institution, rather it is a general school for Girls. Furthermore, although several enquiries have been held in the matter including enquiries at the instance of this Court, but inspite of that not even one criterion of minority institution has been found to be fulfilled.

15. Learned counsel for respondents no. 3 to 10 submitted that the petitioners filed C.W.J.C. No. 4515 of 1981 without impleading interveners. Subsequently, petitioners filed C.W.J.C. No. 2473 of 1988, which was disposed of directing the authorities to hold enquiry. However, the petitioner, thereafter, filed a title suit before the Subordinate Judge, Bhojpur bearing Title Suit No. 54 of 1989, in which the Patna High Court CWJC No.2314 of 1997 (17) dt.17-05-2013 injunction petition filed by the petitioners was rejected on

30.07.1992.

16. Learned counsel for respondents no. 3 to 10 asserted that a criminal proceeding under section 144 of the Code of Criminal Procedure was initiated at the instance of the petitioners, but it was subsequently rejected by the Sub-Divisional Magistrate, Arrah Sadar on 18.03.2008 and the revision filed by the petitioners against the said order bearing Criminal Revision No. 61 of 2008 was also dismissed by the Sessions Judge, Bhojpur at Arrah vide order dated 18.10.2008 (Annexure A/23). He also referred to the order of the District Magistrate, Bhojpur dated

24.03.1998 (Annexure A/24) and the report of the authorities of 1998 (Annexure A/25), which showed that criminal cases were filed against the petitioners for running fake institution and they are on bail facing trial.

17. Thus, learned counsel for respondents no. 3 to 10 argued that the claim of the petitioners is absolutely baseless and frivolous and the writ petition is fit to be dismissed. In this connection, he relied upon a decision of the Apex Court in case of T.M.A. Pai Foundation & Ors. vrs. State of Karnataka & Ors., reported in 2002 (8) S.C.C. 481.

18. Considering the averments made by learned Patna High Court CWJC No.2314 of 1997 (17) dt.17-05-2013 counsel for the parties and the materials on record, it is quite apparent that the petitioners had approached this Court on several occasions. Firstly they filed C.W.J.C. No. 4515 of 1981 against Government notification dated 07.08.1981 under the provisions of the Bihar Non-Government Secondary Schools (Taking over Management and Control) Ordinance, 1980, but while quashing the said impugned notification a Bench of this Court gave liberty to the respondents to first hold an enquiry into the matter and if the result of the enquiry came against the petitioners, the Government would be at liberty to issue a fresh notification for taking over the School.

19. Thereafter, the petitioners again filed C.W.J.C. No. 3472 of 1988, which was disposed of vide order dated

26.05.1988 directing the authorities of the Education Department to decide the petitioners’ application to be filed in proper format with respect to the minority status claimed by them. Again the petitioners filed C.W.J.C. No. 1896 of 1994, which was partly allowed by a Bench of this Court vide order dated 22.07.1996, directing the State of Bihar and its authorities to hold enquiry and take a decision and pass appropriate order in accordance with law with respect to the minority status claimed by the petitioners by

31.12.1996. Patna High Court CWJC No.2314 of 1997 (17) dt.17-05-2013

20. The records of the case and the claims of the parties further show that in the meantime several enquiries were held and ultimately in view of order dated 22.07.1996 passed in C.W.J.C. 1896 of 1994, a fresh enquiry was held by the Secretary, who submitted his detailed report dated 30.12.1996 (Annexure 1) and considering all the points raised by the petitioners and the materials produced by them, the authority took a decision that the School in question was not a minority school, rather it was a general school. The reasonings and justifications given in the said report, on the basis of which specific findings were arrived at in the said report, do not appear to be unjustified nor the petitioners have been able to prove that the said findings were erroneous or misconceived on any count.

21. Admittedly, the School was established by a group of persons in the year 1976 and thereafter they applied before the authorities for its recognition on 01.05.1976, but there is nothing to show that the application was for recognition of the School as a minority school, rather it appears that the application was filed for its recognition as a general Girls School and the authorities, vide order dated 16.11.1979, granted permission to it as general school for Girls and finally permanent recognition as general Girls School was granted by the authorities to the School on 22.05.1980. In the Patna High Court CWJC No.2314 of 1997 (17) dt.17-05-2013 said circumstances, the School in question never came under the exemption of Bihar Secondary Education Board Act, 1976 Act or its amendment by B.S.E.B.(Second Amendment) Ordinance, 1980 and it continued for decades as a general school for Girls and never as a minority School.

22. At the instance of the petitioners, the registration of the School under the Societies Registration Act, 1860 was a much belated event of 10.07.1982. In view of the developments mentioned in the aforesaid paragraphs, the said registration did not cut much eyes, specially when much before that the School in question had already been taken over as a General School vide notification dated 07.08.1981 under the provisions of the 1976 Act as amended by 1980 Ordinance.

23. Furthermore, section 18 of the Bihar Non- Government Secondary Schools (Taking over Management and Control) Act, 1981 prescribes procedure for recognition of minority secondary schools, but the petitioners have miserably failed to show that the petitioners or any one else had ever applied under the prescribed procedure for recognition of the School as a minority school. Hence the petitioners never adopted any proper and legal procedure either for the establishment of a minority school or for recognition of the school in question as a minority Patna High Court CWJC No.2314 of 1997 (17) dt.17-05-2013 school.

24. It is also not in dispute that like other general schools, the Government has provided Managing Committee for the School in question also, which has been upgraded as +2 School as far back as on 08.06.2007 and the teachers of the School are being transferred from this school to other general schools, whereas, the teachers of other general schools are also being transferred to this school and many of them have already retired. Several other teachers have also been appointed as per the policy of the State Government with respect to General School.

25. It has also come to the light that the enquiry report dated 30.12.1996 was not the only report, which was submitted by the concerned authority, rather report of the Deputy Director dated

31.01.1992 and the report of the District Magistrate dated

04.07.1993 were also submitted and on investigation it was found that the School was never a minority school, rather it was throughout a general school and had been taken over as such. Finally the enquiry report dated 30.12.1996 also shows that the School in question did not fulfill any requirements of a minority institution and hence the claim of the petitioners was rightly rejected.

26. So far reliance of learned counsel for Patna High Court CWJC No.2314 of 1997 (17) dt.17-05-2013 petitioners upon a decision of the Apex Court in case of Kerala Education Bill, 1957, reported in A.I.R.1958 S.C. 956 is concerned, it is with respect to the right of the minority to establish and maintain its own minority institution and the effect of Kerala Education Bill, 1957 on such fundamental rights. In the said circumstances, the said case law is not relevant to the facts and circumstances of this case, in which neither the question of right of a minority for establishing and maintaining its own school is involved nor there is any such bill, the effect of which can be legally assumed to take away any fundamental right of the minorities.

27. In the said circumstances, this Court does not find any merit in this writ petition, which is, accordingly, dismissed. (S.N. Hussain, J) MPS/-