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GAUHATI HIGH COURT
K. N. SAIKIA, Ag. C.J. AND R. K. MANISANA SINGH, JJ.
Jugalkishore Kedia and others -Appellant
Versus
State of Assam and others -Respondent
Civil Rule No. 11 of 1978
Decided On : 08-05-1987
CONSTITUTIONAL LAW - RIGHT TO ESTABLISH AND ADMINISTER EDUCATIONAL INSTITUTIONS - MINORITY SCHOOLS - PROVINCIALISATION OF SECONDARY EDUCATION - VALIDITY OF ACT AND RULES - COMPOSITION OF MANAGING COMMITTEE - MINORITY RIGHTS - INTERPRETATION OF ARTICLE 30(1) OF THE CONSTITUTION.
Fact of the Case:
The petitioners, members of the Marwari community, challenged the order of the Inspector of Schools, Nagaon District Circle, Nagaon dated 28-7-77 constituting the new Managing Committee of the "Gandhi Vidyapith", a High School of Hojai, Nagaon, and the order of the Deputy Secretary to the Govt. of Assam, Education Department dated 17-10-77 declaring the Headmasters of respective schools as drawing and disbursing officers. They also challenged the vires of S.5 of the Assam Secondary Education (Provincialisation) Act, 1977, for short the Act, and of R.4 of the Assam Aided Higher Secondary, High and Middle Schools Management Rules, 1976, for short, the Rules, as violative of Art.30 of the Constitution.
Finding of the Court:
The Court held that the Act and the Rules were not ultra vires the Constitution and that the composition of the Managing Committee did not violate the minority rights under Art.30(1) of the Constitution. It further held that the order of the Inspector of Schools constituting the new Managing Committee and the order of the Deputy Secretary declaring the Headmasters of respective schools as drawing and disbursing officers were not violative of Art.30(1).
Issues: 1. Whether the Act and the Rules were ultra vires the Constitution? 2. Whether the composition of the Managing Committee violated the minority rights under Art.30(1) of the Constitution? 3. Whether the order of the Inspector of Schools constituting the new Managing Committee and the order of the Deputy Secretary declaring the Headmasters of respective schools as drawing and disbursing officers were violative of Art.30(1)?
Ratio Decidendi: 1. The Court held that the Act and the Rules were not ultra vires the Constitution because they were subject to the provisions of Art.30 of the Constitution and did not infringe the minority rights under Art.30(1). 2. The Court held that the composition of the Managing Committee did not violate the minority rights under Art.30(1) of the Constitution because it provided for a special committee under special circumstances and for nomination of three members by the Government, which could be used to maintain the administrative rights of a minority school. 3. The Court held that the order of the Inspector of Schools constituting the new Managing Committee and the order of the Deputy Secretary declaring the Headmasters of respective schools as drawing and disbursing officers were not violative of Art.30(1) because they were necessary for the smooth functioning of the school and did not affect any minority rights.
Final Decision: The petition was disposed of with the observations and directions of the Court. The parties were left to bear their own costs.
SAIKIA, C.J. (Acting) :- The petitioners challenge the order of the Inspector of Schools, Nagaon District Circle, Nagaon dated 28-7-77 constituting the new Managing Committee of the "Gandhi Vidyapith", a High School of Hojai, Nagaon, and the order of the Deputy Secretary to the Govt. of Assam, Education Department dated 17-10-77 declaring the Headmasters of respective schools as drawing and disbursing officers. They also challenge the vires of S.5 of the Assam Secondary Education (Provincialisation) Act, 1977, for short the Act, and of R.4 of the Assam Aided Higher Secondary, High and Middle Schools Management Rules, 1976, for short, the Rules, as violative of Art.30 of the Constitution.
2. The petitioners state, inter alia, that they belong to the Marwari community and have migrated to Assam from Rajasthan tong time back; that they are now permanently residing at Hojai; that Hindi is both their literary and conversational language of general use; that with the growth of population of the Marwari community at Hojai, the members of the community felt the need of Hindi High School for higher education of their children and started the "Marwari Hindi High School" in 1956 which started functioning at the "Rajasthan Bhawan", Hojai; that the petitioners and other leading members of the Marwari community of Hojai and its neighbouring areas contributed funds and participated in its management; that the said school was initially run and managed by the members of the Marwari community through a Governing Body and the State Government also provided grants including ad hoc recurring grant of Rs. 250/- in 1961-62; that it was recognised up to Class VIII in 1960; that the members of the Hindi speaking community in a meeting held on 26-3-61 constituted a Board of Trustees which was entrusted with acquisition of land, collection of funds and construction of the school building and in the same meeting the name of the school was changed to "Gandhi Vidyapith" which name still continues; that the land for the school was donated by the petitioner No. 1 Shri Jugalkishore Kedia and the petitioner No. 5 Ratanlal Ajitsaria; and that 13 other Marwari Firms of Hojai and other places of Assam contributed towards construction of rooms of the school building which was completed in 1962.
It is stated that in 1962 vide letter of the Additional Director of Public Instructions, Assam dated 26-6-62, the Government decided to bring the school under the deficit system of grants and directed that a new Managing Committee be formed as per Rules and a Managing Committee was accordingly constituted on 28-6-62 and was approved by the Inspector of Schools for a period of three years with effect from 1-7-62. It appears such Managing Committees constituted under the Rules from time to time continued to manage the school until in May, 1973 a new Managing Committee of 12 members with the petitioner No. 1 as its President was constituted to function for three years. Meanwhile, the Assam Higher Secondary High and Middle Schools Management Rules, 1976 were framed and the Inspector of Schools by his letter dated 2-5-76 informed about the dissolution of the then Managing Committee with immediate effect and also ordered that the Headmaster of the school would function as the Secretary till a new Managing Committee was formed under the Rules; and that was objected to by the Secretary of the dissolved Managing Committee. Meanwhile, the Assam Secondary Education (Provincialisation) Ordinance, 1977 (Assam Ordinance No. V of 1977) was promulgated and later the same was repealed by the Act, which received the assent of the Governor on 10th December, 1977. It was an Act to provide for provincialisation of Secondary Education covered by the deficit scheme of the Government of Assam "for its improvement and for better control and management of such education in the State of Assam". As defined in its S.2(iii) "deficit school" means a school receiving grants from the State Governmen
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