A minority institution cannot surrender its fundamental right under Art. 30(1) of the Constitution of India, which guarantees the right to establish and administer educational institutions of their choice. The constitution of a managing committee by the District Inspector of Schools under R. 3(1) of the Orissa Education (Management of Private Schools) Rules, 1980, for a minority institution is ultra vires and void. The State cannot discriminate against a minority institution in the grant of aid solely on the ground of its minority character.

L. RATH, J.

( 1 ) THE Managing Committee of the Baptist Church Middle English School and the Oriya Baptist Church, Berhampur are the petitioners challenging the order dt. 29-12-81 (Annexure-A) of the District Inspector of Schools. Berhampur Circle constituting the managing committee of the school under R. 3 (1) of the Orissa Education (Management of Private Schools) Rules, 1980 (Second Amendment Rules, 1981) and for direction that the managing committee be constituted with the consent and assistance of the petitioners with a further prayer for issue of a writ directing the opposite parties not to interfere in any manner with the functioning of the school of the minority community and to give grant-in-aid to the school without discrimination, or in the alternative to constitute the managing committee of the school in accordance with its own constitution.

( 2 ) THE crux of the case of the petitioners is that the school is a minority institution the managing committee of which is constituted in accordance with the constitution adopted for it on 12-8-47 by the Oriya Baptist Church, Berhampur, petitioner No. 2, which maintains the school and under the constitution is its recognised manager. It is contended that the school being in dire financial difficulty and further since a decision had been taken by the Government on 12-6-74 for excluding institutions run by minority communities from the benefit of direct payment of teachers' salary and cent per cent D. A. in full, the management of the school had to adopt a stand of the managing committee being constituted under Arts. 286 and 306 of the Orissa Education Code and petitioner No. 2 as not having any financial commitment for the school, with a view to persuade the State Government to come forward and include the school in the fold of direct payment scheme. The Government however did never make available the desired grant. The institution, according to the petitioners, has always continued as a minority institution and hence the impugned action of the District Inspector of Schools is liable to be set aside and the petitioners are entitled to the reliefs as claimed.

( 3 ) IN the two counter affidavits filed by the State while it is not disputed that the institution was a minority one and indeed very many documents filed on either side vouchsafe the fact of acknowledgement by the State of the institution as having such character, yet it is contended that it is no more a minority institution and that the managing committee had stood dissolved from 16-1-80 after which the committee has been constituted by the Government. It is claimed that the land and the school building thus belong to the Government.

( 4 ) IT may be possible, though Mr. R. Mohanty, learned counsel appearing for the petitioners even combats the same, that an institution which was originally established and managed by a minority community may of its own free will give up certain rights otherwise available to it for benefits to be obtained in lieu thereof. The matter engaged the attention of the Supreme Court in AIR 1974 SC 1389, Ahmedabad St. Xaviers College Socy. v. State of Gujarat, wherein Justice M. H. Beg observed :"turning to the first and the more complex question, I think it is difficult to answer the argument of the Additional Solicitor General, appearing on behalf of the State of Gujarat, that, where a minority institution has, of its own free will, opted for affiliation under the terms of a statute, it must be deemed to have chosen to give up, as a price for the benefits resulting from affiliation, the exercise of certain rights which may, in another context, appear to be unwarranted impairments of its fundamental rights. "though however it may be open to the minority institution to forego some of its rights as above, it will be a completely different thing to say that the entire minority character of the institution can be abandoned and that pleas of waiver and estoppel would be available to the Governme