Dismissed

St. Marks High School,Banabira v. State of Jharkhand And Ors.

Jharkhand HC20 Jul 2018WPC/3027/2010

Case brief

AI extract

What is this about?

Two minority schools challenged the 2009 notification that withdrew the 1981 takeover and granted them minority status but allowed aid only under the 2004 Jharkhand Act, on the same terms as non-minority schools. The court held that schools lacking minority status when the 1981 Act came into force form a separate class, found no violation of Articles 14 or 30(2), and dismissed the writ petitions.

What the court decided

AI extract

St. Marks High School,Banabira Vs State of… — Education and Admissions | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P. (C) No. 3073 of 2010

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Narpati High School, Samsera, through its Secretary, Father Peter Minz, son of late John Minz, resident of village Paharsara, P.O. & P.S. Bagdega, District Simdega … … Petitioner

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Versus

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1.The State of Jharkhand

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Secretary, Human Resources Development Department, Government of Jharkhand, Ranchi, Project Building, P.O. Dhurwa, P.S. Jagarnathpur, District Ranchi

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3.Director, Secondary Education Human Resources Development Department, Government of Jharkhand, Ranchi, Project Building, P.O. Dhurwa, P.S. Jagannathpur, Dist.-Ranchi

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4.District Education Officer, P.O. + P.S. Simdega, District Simdega

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… … Respondents

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With

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W.P. (C) No. 3027 of 2010

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St. Mark’s High School, Banbira, P.O. Samsera, P.S. Samsera, District Simdega through its Secretary Vitus J. Kerketta son of Sri Petrus Kerketta r/o village Agharma, P.O. Agharma, P.S. + District Gumla

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… … Petitioner

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Versus

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1.The State of Jharkhand

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Secretary, Human Resources Development Department, Government of Jharkhand, Ranchi, Project Building, P.O. Dhurwa, P.S. Jagarnathpur, District Ranchi

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3.Director, Secondary Education, Human Resources Development Department, Government of Jharkhand, Ranchi, Project Building, P.O. Dhurwa, P.S. Jagannathpur, Dist.-Ranchi

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4.District Education Officer, P.O. + P.S. Simdega, District Simdega

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… … Respondents

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioners : Mr. A.K. Das, Advocate Mr. Shivam Sahay, Advocate (In both cases) For the Respondents : Mr. Amit Kumar Verma, Advocate ---

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10/20.07.2018

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Heard Mr. A.K. Das, counsel appearing on behalf of the petitioners assisted by Mr. Shivam Sahay, Advocate.

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Heard Mr. Amit Kumar Verma, counsel appearing on behalf of the respondents.

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The counsel submits that both the writ petitions involve similar facts and issues.

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The writ petition being W.P.(C) No. 3073 of 2010 has been filed for the following reliefs:-

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a. For quashing the part of the Notification no. 3227 dated 23.10.2009 issued by the Secretary, Department of Human Resources Development Department, Secondary Education, Government of Jharkhand, as contained in Annexure-11 to this writ application, whereby and whereunder, the State Government had arbitrarily held in the concluding portion of the said notification that the petitioner-school shall be entitled to receive aid only in accordance with the provisions of Jharkhand State NonGovernment Educational Institution (Aid) Act, 2004.

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b. For issuance of direction upon the respondent authorities to resume the payment of grand-in-aid to the petitioner-school in the same manner as was being previously paid to the petitioner institution in view of the fact that the petitioner-school has been recognized by the State Government as a minority school and as such is entitled to similar treatment as is being extended to other minority institutions of the State;

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The writ petition being W.P.(C) No. 3027 of 2010 has been filed for the following reliefs:-

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a. For quashing the part of the Notification no. 3227 dated 23.10.2009 issued by the Secretary, Department of Human Resources Development Department, Secondary Education, Government of Jharkhand, as contained in Annexure-14 to the writ application, whereby and whereunder, the State Government after having declared the petitioner school of the benefit of aid in the same manner as is being extended to other minority schools in the state by mentioning arbitrarily in the concluding portion of the said notification that the petitioner-school shall be entitled to receive aid only in accordance with the provisions of Jharkhand State Non-Government Educational Institution (Aid) Act, 2004..

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b. For issuance of direction upon the respondent authorities to assume the payment of grand-in-aid to the petitioner-school in view of the fact that the petitioner-school has been recognized by the State Government as a minority school and as such, is entitled to similar treatment as is being extended to other minority institutions of the State.

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Counsel for the petitioners submits as under:-

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a. The petitioners are minority schools established by Simdega

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Catholic Diocean Education Society. It was granted permission for establishment of the schools issued by Bihar Education Board Patna.

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b. Thereafter the Government of Bihar took over the management and control of the petitioners-school along with its assets and teachers as per the provisions of Bihar Non-Government Secondary Schools (Taking over of Management and Control) Act, 1981 and salary of the teachers and other staffs were to be paid like the employees of other government high schools.

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c. However, the petitioners were conscious of the fact that by virtue of such taking over, the petitioners would lose its minority character and accordingly it refused to take payment of the salary through government treasury and sought guidelines from Arch Bishop, Ranchi who in turn vide letter dated 02.02.1982 raised objection before the District Education Officer, Ranchi stating that the petitioners, who are minority secondary schools and therefore its employees be allowed to take salary from District Secondary Education Fund instead of Government Treasury and a request was made to suitably modify the government order. Thereafter a letter bearing no. 12417-19 dated 27.04.1982 was issued by the Director Secondary Education, Bihar Patna informing the Arch Bishop, Ranchi that the matter with regard to recognition of the petitioners school as minority school is under consideration and until final decision is taken by the government in the matter, payment of salary to the teachers of the petitioners-school be made from the government treasury and it will not adversely affect the minority character of the school.

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d. Accordingly, an enquiry was being conducted in the matter of declaring the petitioners-school as minority secondary school and the required document for the purpose of declaration were submitted by the petitioners and ultimately the District Education Officer, Gumla forwarded the document to the Director Secondary Education by observing that it appears that the petitioners-school has been established by Christian Minority Community. Accordingly, the District Education

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Officer, Gumla recommended for declaring the petitioners school as minority secondary school.

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e. He further submits that in the meantime, Bihar Christian School Association, to which the petitioners are members, filed writ petition before Hon’ble the Supreme Court under Article 32 of the Constitution of India in the year 1983 challenging the constitutional validity of Section 3 and 18(3) of the aforesaid Act of 1981 on the ground that the same is violative of Article 30 of the Constitution of India and the Hon’ble Supreme Court vide interim order dated 04.12.1985 directed that all such institutions will continue to get aid in respect of teaching and non-teaching staff of the school provided they submit a list of teaching and non-teaching staff of the recognised school against the sanctioned post.

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f. Pursuant to the interim order passed by the Hon’ble Supreme Court, the concerned authority after due verification started paying the salary to the teachers by issuing letter and it was clearly indicated that similar relief is being granted to the schools like the petitioner who has not been granted minority status so far.

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g. He submits that in the meantime, the Hon’ble Supreme Court decided the aforesaid writ petition filed by the All Bihar Christian School Association vide judgment dated 27.11.1987.

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h. Thereafter in the month of February 1992, the District Education Officer, Gumla sought guidelines as to whether salary of the petitioners school can be released or not and pursuant thereto a report was called for by the Director, Secondary Education Bihar Patna vide letter dated 12.05.2000 from the District Education Officer, Gumla with regard to the different secondary schools including that of the petitioners in connection with minority character. An enquiry was conducted and report dated 30.06.2000 was submitted that the petitioners school was still being run by religious minority committee. He submits that in spite of specific recommendation that the petitioners school is a minority school, no decision was taken in the matter of declaring the petitioners school as minority school.

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i. In such circumstances, the petitioners through Simdega Catholic Diocean Education Society moved this court in writ petition being W.P. (C) No. 1316 of 2003 and the said writ petition was disposed of vide order dated 21.11.2008 stating therein that as the committee was already appointed with regard to taking a final decision and the report was awaited, the writ petition was disposed of with ,inter alia, an observation that if the report is in favour of the petitioners, the same will be acted upon. After detailed enquiry, the petitioners were granted minority status and the earlier notification no.16843-55 dated 08.06.1981 and memo no. 90-100 dated 05.01.1982 by which the petitioners school were taken over by the State Government, was withdrawn with immediate effect. However, in the concluding portion of the said notification, it was held that the petitioners schools shall be entitled to receive aid only in accordance with the provisions of Jharkhand State Unaided Education Institution (Grant) Act 2004 (hereinafter referred as the Act 2004).

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j. Counsel for the petitioners further submits that the petitioners are aggrieved by the impugned memo no. 3227 dated 23.10.2009 only by the last line of this notification wherein it has been mentioned that the petitioners will be entitled to aid in accordance with the provisions of Jharkhand State Unaided Education Institution (Grant ) Act 2004. He further submits that by this notification , the teachers and other employees whose services were taken over earlier were directed to be adjusted against vacant post in other schools and the petitioners have no grievance so far as this portion of the impugned notification is concerned.

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k. He further submits that as a matter of policy, the state government is making payment of salary to all the teaching and non-teaching employees of the minority institutions whose services have been approved by the State Government, but by the impugned notification the petitioners have been made entitled to grant in aid in the same manner as those general schools which are governed under the provisions of the

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aforesaid Act of 2004.

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l. He submits that a class has been created within the minority institutions and as a consequence of the impugned notification the petitioners will be treated differently from most of the minority institutions who are on the one hand receiving aid and grant in the form of salary teaching and non-teaching staff whose services has been sanctioned, and on the other hand the petitioners will be entitled to receive aid only as per the aid available to the general Educational Institutions which are governed by the aforesaid Act of 2004.

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m. He further submits that immediately prior to issuance of impugned notification dated 23.10.2009, a number of educational institutions were recognised by the government in the year 2007 and were recognised under Section 18(1) (2) of the aforesaid Act of 1981 and were entitled to aid in the form of salary of the teaching and non-teaching staff of such school whose services has been sanctioned by the state government. Counsel for the petitioners submits that it is not open to the respondents to discriminate amongst the minority institutions and treat the different minority schools differently in the matter of grant of aid. He further referred to Article 30(2) of the Constitution of India and submits that it is the mandate of the Constitution of India that the State shall not discriminate in granting aid to the any educational institution on the ground that it is under the management of minority whether based on religion or language. Accordingly, he submits that the petitioners are entitled to similar treatment as that of other minority schools and having not given such similar treatment, the action of the respondents is violative of Article 14 of the Constitution of India being an arbitrary and violative of Article 30 (2) of the Constitution of India. Counsel for the petitioners has also referred to a judgment passed by the Hon’ble Patna High Court in the case reported in 2013(4) PLJR 4 in the case of Parvati Kumari, wife of Ramakant Singh & Ors versus The State Government through the Secretary, Department of Higher Education, Bihar, Patna & Ors and has referred to

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paragraph no. 39 of the said judgment to buttress his aforesaid arguments.

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n. Counsel for the petitioners has also referred to various

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circulars issued by the erstwhile state of Bihar from time to time in connection with granting aid to minority institutions in the form of salary of teaching and non-teaching employees. Counsel submits that petitioners being a minority institution is also entitled to receive aid in the form of salary of the teaching and non-teaching staff.

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Counsel appearing on behalf of the respondents submits as under :-

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a) On the date of coming into force of Bihar Non-Government Secondary Schools (Taking Over of Management & Control) Act, 1981 , the petitioners were having permission for establishment of school issued by Bihar Education Board Patna.

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b) He further submits that merely because the schools were being run by the persons who are from minority community that by itself does not give the status of school as minority school unless there is a declaration/recognition to that effect.

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c) This school was taken over by the government by virtue of provisions of Section 3(3) of the aforesaid Act of 1981. As the school was already taken over, and there was no occasion to treat this school as minority school. The schools were not only taken over, but the treatment of the teachers and other staff was also granted in terms of the provisions of Section 3(3) of the aforesaid Act and liability of the teaching and non-teaching staff was taken over by the respondents. However, the status of the petitioners at the stage of taking over and till the stage of its declaration as minority institution continued to be as that of taken over school. The Arch Bishop had taken some objection and had claimed to declare the school as minority school and pay salary from grant in aid instead of Government Treasury. In the meantime the matter regarding validity of certain provisions of the Act of 1981 including section 18 thereof became sub-judice before the Hon’ble supreme court and the teaching and non-teaching staffs of the petitioner school whose services were taken over, were paid salary from the government treasury. Subsequently the petitioners pursued its matter

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regarding declaration of status of the petitioner as minority school after creation of the state of Jharkhand and the petitioners were declared as a minority school by virtue of the impugned notification. Further by the same notification, the notification of the year 1981, by which the school was taken over by the government was withdrawn with immediate effect. In order to protect the interest of the staff whose services were taken over, they were transferred to other school, against which the petitioners have no grievance. He submits that by the impugned order dated 23.10.2009, on the one hand the State Government has given up its right which the State had acquired by virtue of Section 3(3) of the aforesaid Act of 1981 and has withdrawn the earlier notification and has simultaneously granted minority status to the writ petitioners and the respondents has also taken ample care to ensure that rights of the teaching and non-teaching staff is not affected and accordingly they have ensured that they are shifted to other school in connection with which the petitioner has no grievance. Accordingly he submits that the status of the petitioners school cannot be equated with that of other minority schools who were already recognised as minority school on the date of coming into force of the aforesaid Act of 1981. He submits that the school of the petitioners along with others who were not recognised as minority school on the date of coming into force of the aforesaid Act of 1981, as mentioned in the impugned order, were taken over by virtue of Section 3(3) of the aforesaid Act of 1981 and were conferred minority status in the year 2009 with immediate effect , constitute a different class in themselves and therefore the contention of the petitioner that the petitioner is being treated differently as compared to other minority institutions which are similarly situated is far from truth.

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d) Counsel for the respondent also submits that as per the mandate of Article 30(2) of the Constitution of India there cannot be any discrimination in the matter of grant to educational institution so as to discriminate any educational

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institution on the ground that it is being managed by minority whether based on religion or language. He submits that the impugned order is in consonance with the provisions of Article 30(2) of the Constitution of India in as much as by the impugned order the petitioner is sought to be treated similarly as compared to the schools which are governed by the provisions of aforesaid Act of 2004 namely Jharkhand State Unaided Education Institution (Grant) Act 2004. Therefore the action of the State is neither violative of Article 30(2) of the Constitution of India nor violative of Article 14 of the Constitution of India.

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e) He further submits that under the constitution of India, the petitioners do not have any right to receive grant in aid from the state, and the only right which is conferred is that they are entitled to equal treatment if other similarly situated persons are treated in a particular manner and there cannot be any discrimination in the matter of grant to educational institution so as to discriminate any educational institution on the ground that it is being managed by minority whether based on religion or language. He submits that as already indicated above the petitioners and other institution reported in the impugned order have constituted a class in themselves and by the impugned order the grant in aid to them has been directed to be granted as per the provisions of Jharkhand State NonGovernment Institution (Aid) Act 2004. He further submits that the petitioner has no right to receive grant in aid in any particular manner.

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After hearing counsel for the parties and after considering the materials on record this court does not find any merit in this writ petition on account of following facts and reasons:-

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A. Admittedly, on the date of coming into force of Bihar NonGovernment Secondary Schools (Taking Over of Management & Control) Act, 1981 the petitioners were having permission to establish the school as per the terms and conditions issued by Bihar Education Board, Patna . Admittedly, on this date, the petitioners school were not granted status of minority school.

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B. The petitioners school were not a recognised minority school on

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the date of coming into force of the aforesaid Act of 1981 and accordingly it was taken over in exercise of power under Section 3(3) of the aforesaid Act of 1981 and provisions of this Section also finds its mention in the notification by which the school was taken over. By virtue of this notification, on the one hand the petitioners school were taken over as non-government school, and on the other hand, it was also decided to take over the services of the teaching and non-teaching staff in terms of the said section itself.

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C. Section 3 and 18 of the aforesaid Act of 1981 was subject matter of challenge before the Hon’ble Supreme Court in the case of All Bihar Christian Schools Association and Another versus State of Bihar and others reported in 1988 (1) SCC 206 .The said provisions reads as under:-

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“ (3) The State Government may, by notification in the official gazette take over the management and control of such schools and on such terms and conditions as the government may deem proper which have already received permission of establishment from the Bihar Secondary Education Board or of such schools imparting secondary education which have applied for permission of establishment to the said Board immediately before the date of promulgation of this Act and the utility of such school is proved in the eye of the government and which fulfil within 3 years of the promulgation of the Ordinance, the conditions laid down by the State Government with regard to land, building, furniture, equipments and enrolment.

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The qualification and suitability of teachers working against 9 posts of the school, one clerk and two orderlies of such school before the promulgation of this Ordinance, shall be examined by a committee constituted by the State Government for the purpose and if found suitable for appointment in government service they shall be appointed in the government service along with taking over the management and control of the school.

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18. Recognition of minority secondary schools .—(1) The schools declared a minority school under the provisions of the Bihar Secondary Education Board Act, 1976 (Bihar Act 25 of 1976) and the Bihar Secondary Education Board (Second Amendment) Ordinance, 1980 (Bihar Ordinance 82 of 1980) shall be deemed to have been recognised under the provisions of this Act.

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(2) The State Government may, by notification, recognise as a minority secondary school, such secondary school which has been established by a minority community on the basis of religion or language for the purposes of meeting the educational requirement and for the protection of culture of their section and which fulfils the prescribed condition of recognition.

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(3) The minority secondary school accorded recognition under subsections (1) and (2) shall be managed and controlled under the following provisions:

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(a) Every minority secondary school shall have a managing committee registered under the Societies Registration Act, 1862 and shall have written by-laws regarding its constitution and function.

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(b) According to the prescribed qualification laid down by the State

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Government for the teachers of the nationalised secondary schools and within the number of sanctioned posts, the managing committee of the minority secondary schools shall appoint the teacher with the concurrence of the school service board constituted under Section 10 of this Act. Provided that while considering the question of giving approval to appointment of any teacher under this sub-section the board shall only scrutinise as to whether the proposed appointment is in accordance with the rules laying down the qualification and the manner of making appointment framed by the State Government has been followed or not, and no more.

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(c) There shall be rules regarding the service conditions of teachers of minority schools based on natural justice and the prevailing law, a copy of which shall be sent to the State Government.

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(d) The managing committee with the approval of the School Service Board shall have powers to remove a teacher, to terminate his services, to dismiss and to discharge him from service. Provided that for the purpose of approval any disciplinary action against the teacher by the managing committee, the Board shall scrutinise whether disciplinary proceedings have been in accordance with the rules and no more.

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(e) Mentally and physically incapacitated person shall not be appointed as teacher or non-teaching staff of the school.

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(f) No grant shall be admissible for payment of salary of a teacher or a non-teaching staff if appointed or retained beyond 58 years of age.

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(g) Only such fees shall be charged from the students as are prescribed by the State Government. Prior approval of the State Government shall be necessary to charge higher fees than what is prescribed.

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(h) The schools shall be open to inspection on any working day by the authorised inspecting officers of the Education Department, the civil authority and authorised officers of Health Department.

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(i) It shall be their duty to obey instructions regarding admission and transfer of the students, discipline and punishment, records and accounts, curricular and co-curricular activity, rules regarding health and cleanliness issued or made by the State Government.

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(j) The State Government shall have powers to issue instructions not inconsistent with the provisions of Articles 29 and 30 of the Constitution for efficient management and for improving the standard of teaching and it shall be obligatory for the recognised minority schools to comply with them.

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(k) In the event of violation of this section and the rules made thereunder and the instructions issued under it, the said managing committee may make an application within sixty days of the date of the order to the officer authorised by the State Government, against the withdrawal of recognition or withholding or stopping grants and the authorised officer shall, after hearing the case, take his decision and it shall be binding.”

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D. While interpreting Section 3 of the aforesaid Act of 1981 it has been held as under:-

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“Section 3 of the impugned Act provides for compulsory acquisition or taking over of the administration or assets of non-government secondary schools. Section 3(1) lays down that all government secondary schools other than minority secondary schools shall be deemed to have been taken over by the State Government with effect from 2-10-1980. There were five categories of secondary schools functioning in the State of Bihar, and out of them, the management and control of only non-government secondary schools have been taken over by the State. The minority secondary schools, proprietary secondary schools, centrally sponsored schools and autonomous secondary schools have not been taken over by Section 3(1) of the Act. It does not affect a minority secondary school at all. As regards Section 3(2) it confers power on

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the State Government to take over the management and control of recognised minority schools, proprietary or autonomous secondary schools by issuing a notification in the Official Gazette provided the managing committee, trust, association or the corporate body which may have been maintaining such schools makes an unconditional offer to the State Government to make over the school with all assets and properties. If the State Government accepts the offer and considers it necessary to take over the management of such a school it may lay down terms and conditions for the take over of the management and control of the school. Section 3(2) does not confer any power on the State to compulsorily acquire or take over the management of a minority school; instead the management is free to maintain and carry on the administration of its school and the State has no power to interfere with its administration. The State is entitled to take over the school only if an unconditional offer is made by the management of the school. There is, however, no compulsion on the management of a minority school to make over the school to the government. If the management of a minority school finds it difficult to maintain its school, instead of closing down, it may, in the larger interest of the educational need of the area, hand over the control and management of the institution to the State. Section 3(2) does not interfere with minority’s rights to maintain or administer its school, it merely enables the State to take over the control and management of a minority institution only when an unconditional offer is made to it by the management of the minority institution. There is, therefore, no question of Section 3(2) infringing the rights of minority institutions.

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11. Section 3(3) confers power on the State Government to take over the management and control of the secondary schools which may not have been recognised on the date of the enforcement of the Ordinance or the Act. It provides that the State Government may take over the management and control of such schools on terms and conditions which the government may deem proper. These schools include those which may have received permission for establishment of the school from the Bihar Secondary Education Board of schools which may have applied for permission of establishment immediately before the date of the promulgation of the Ordinance provided the State Government is satisfied with regard to the utility of such schools. Section 3(3) relates to the taking over of management and control of unrecognised schools other than minority schools. These provisions do not affect the fundamental right of minority institutions. In this view Section 3 which provides for taking over of management and control of non-government secondary schools does not in any manner encroach upon the fundamental right of a minority institution.”

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E. This court finds that the aforesaid Act of 1981 has treated the schools which were granted minority recognition on the cut-off date differently from those who were not granted such status on the date of coming into force of the aforesaid Act of 1981 even if the school was set up by persons belonging to minority community.

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F. This court is of the considered view that merely because the school has been established by a person who belongs to linguistic or religious minority, that by itself does not confer the minority status to the school and for that purpose specific declaration is required to be made. Accordingly the schools of the petitioners were having the status of non-government school

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on the date of taking over in absence of any declaration of minority status on that date. This court finds that on the date of taking over of the schools which was done by virtue of a separate notification, all the assets etc. stood vested in the government by virtue of notification issued under Section 3(3) of the Act of 1981 including the liability in connection with teaching and non-teaching staff.

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G. It is the specific case of the petitioners that they had raised objection to the taking over and had insisted that the payment to the teaching and non- teaching staff of the school be made from the grant in aid treating the school as a minority school and not from the government treasury and they were contesting the case before the Hon’ble supreme court being a part of All Bihar Christian Association. Moreover the petitioners were also enjoying the interim order granted by the Hon’ble Supreme Court in the aforesaid case filed by All Bihar Christian Association.

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During pendency of the said case before the Hon’ble Supreme Court, interim orders were passed by the Hon’ble Supreme Court and was also enjoyed by the petitioners, which is quoted herein below for ready reference.

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“ That the institutions represented by the petitioners will continue to get aid which some other institutions were getting in respect of the teachers and the non-teaching staff of schools. The petitioners will within 2 weeks from today submit a list of teachers and the nonteaching staff of recognised school against the sanctioned post and the State Government will within 3 weeks verify the correctness of such list including the question whether the teachers and the non-teaching staff are properly appointed against such sanction posts and have requisite qualification and within a further period of 2 weeks hereafter the State Government will make payment to such teachers and nonteaching staff of their salary and arrears. The matter is disposed of according.”

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H. However, the Hon’ble Supreme Court decided the aforesaid case vide judgment dated 27.11.1987 and ultimately, no relief was granted by the Hon’ble Supreme Court.

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I. However, it appears that in spite of dismissal of aforesaid

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case by the Hon’ble Supreme Court, teaching and non-teaching staff of the petitioners school continued to get salary from the State and subsequently the District Education Officer made a query from higher authority as to whether salary is to be disbursed or not. In the meantime the petitioners were throughout pursuing its matter in connection with getting status of minority school. However, as the school of the petitioners were already taken over by the government pursuant to exercise of power under Section 3(3) of the aforesaid Act of 1981, there was no question of it having a minority status.

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J. Further, as per the provisions of section 19 of the aforesaid Act of 1981, the state government has the power to grant permanent recognition to Proprietary Secondary Schools inter alia, subject to the condition that no grant shall be admissible to such schools from the government. The term Proprietary Secondary Schools has also been defined under the Act of 1981. Section 2(d) and section 19 (a) of the aforesaid Act of 1981 are quoted herein below for ready reference :-

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“ Section (2) Definitions- In this Ordinance, unless there is anything repugnant in the subject or context-

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(c) … … …

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(d) “Proprietary Secondary School” means a Secondary School the entire financial burden of which is borne by a Trust, Association or a Corporate body and which is recognised and declared a proprietary school on such terms and conditions as laid down by the State Government from time to time

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19. Proprietary Secondary School- If any Trust, Association or any Corporate body submits a written application for the establishment of a secondary school and undertakes to bear the entire financial burden of the institution, then on permission being accorded for its establishment as a proprietary school and on fulfilling the conditions of the permanent recognition as laid down by the State Government, the State Government shall have power to accord permanent recognition subject to the following conditions:

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(a) No grant recurring, non-recurring or compensatory shall be admissible to a proprietary school by the State Government

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(b) …….”

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K. Vide aforesaid Jharkhand State Unaided Education Institution (Grant ) Act 2004 said section 19 (a) of the aforesaid Act of 1981 has been deleted and provisions for grant of aid to the Proprietary Secondary Schools have been made by virtue of the aforesaid Act of 1981 read with the aforesaid Act of 2004. The said Act of 2004 makes no distinction between a minority school and other schools.

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L. In the meantime, taking into consideration the enquiry report and the fact that the schools were established by minority community, the government took a decision vide the impugned order, by which the aforesaid notification issued under Section 3(3) of the aforesaid Act of 1981 was withdrawn with immediate effect and the petitioners were granted the status of minority school. Said withdrawal was with the condition that government would continue to take the liability in connection with teaching and non-teaching staff whose services were already taken over under section 3(3) of the Act of 1981 and such persons were required to be shifted to another school against the sanctioned post. Thus the government adequately protected the interest of teaching and non-teaching staffs whose services were already taken over by the government. The petitioners have admittedly no grievance with the decision of shifting of the staff whose services were already taken over by the government. Further, the government took a decision that the school has to be treated at par with other non-government school in the matter of grant of aid which was now governed by the aforesaid Act of 1981 read with aforesaid amendment Act of 2004. This court finds that by virtue of this amendment of 2004, the bar regarding grant of aid to the proprietor secondary school was done away with and it was made possible to give aid to such school also. This court find that by the impugned order, when the state agreed to withdraw the notification of taking over of the petitioner school and grant minority status to the petitioner school with immediate effect, it also made provision for grant in aid to the petitioner school in similar manner as being granted to other non-governmental school under the provisions of Act of

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1981 read with aforesaid Act of 2004 by which 1981 Act was also amended. This court is of the considered view that such action of the respondent state is in consonance with the provision of Article 30(2) of the Constitution of India, as the State is under an obligation under Article 30(2) of the Constitution of India not to discriminate amongst the educational institution in the matter of grant of aid on account of it being a minority institution. Therefore, the contention of the petitioners that the action of the respondent state by the impugned order is violative of Article 30(2) of the Constitution of India is hereby rejected.

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M. Another point raised by the petitioners is that the petitioners being minority schools have to be treated at par with other minority schools in the matter of grant of aid who are receiving grant in aid for the purposes of paying salary to the teaching and non -teaching staffs. The petitioners have also submitted that the petitioners are required to be treated at par with those schools who were enjoying minority status at the time of coming into force of the aforesaid act of 1981 and were getting aid for the purposes of payment of salary to the teaching and nonteaching staffs.

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This court find that schools like that of the petitioners which were taken over by the State by virtue of Section 3(3) of the Aforesaid Act of 1981 as non- governmental school on account of absence of grant of minority status on the date of taking over in the year 1981 have been treated differently under the act of 1981 itself from those who were already having the minority status on the date of coming into force of the act of 1981. It is by the impugned order the petitioners have been granted the minority status and the notification for taking over of the petitioners school has been withdrawn with immediate effect and no retrospective effect has been given to such decision as the rights and interest of the teaching and non-teaching staff whose services were taken over in the year 1981 has also been protected. Moreover on the date of the impugned decision the aforesaid act of 2004 which amended the act of 1981 had already come into force which enabled the state to give grant in aid to

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the proprietary schools other than minority schools and now the government thought it proper to give the minority school of the petitioners along with others similar treatment in the matter of grant as was being made available to non-minority schools. In such circumstance the schools like the petitioners constituted a separate class by itself being totally different from those minority schools who had the minority status at the time of coming into force of the act of 1981. Thus the plea of the petitioner that the action of the respondents in connection with the petitioner is discriminatory vis-a-vis other minority institutions and hence violative of article 14 of the constitution of India, is hereby rejected. Accordingly the petitioners cannot claim any parity with respect to those schools who were already granted minority status prior to coming into force of the Act of 1981 or even those school who were subsequently established and granted minority status by virtue of power under Section 18(2) of the aforesaid Act of 1981. This court find that the petitioners with others constitute a class in themselves as the government has taken a decision to de-notify the taking over of the petitioner school which was taken over as back as in the year 1981.

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N. Another plea has been taken by the petitioners regarding discrimination of the petitioners vis-à-vis some of the schools which were also taken over by the state and subsequently granted the minority status but the state has taken a decision to give salary to teaching and non-teaching staff of such schools. This has been responded to by the respondent in the counter affidavit dated 16.07.18 {filed in W.P.(C) No.3073 of 2010} and in para 15 of the said affidavit it has been stated that in such schools the same set of teaching and non-teaching staff were continued whose services were already taken over by the government and the government was under a legal obligation to pay the salary to such staffs. The counter affidavit has been relied upon by the counsel for the respondent in both the writ petitions and he submits that identical statements have been made in both the writ petitions which are being heard

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analogously. This court finds that the facts of the instant case is totally different. In the instant case the teaching and nonteaching staff whose services were taken over have been shifted to another school and the government would continue to pay their salary in the school where they have been shifted. The petitioners have no grievance with regards to such shifting of staffs to other schools. Accordingly , the allegation of the petitioner regarding discrimination vis -a vis the aforesaid schools is also devoid of any merits and is hereby rejected as they stand on a different footing as explained above.

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O. The counsel for the petitioners has relied upon a judgement passed by Patna High Court reported in 2013(4) PLJR 4 and has referred to paragraph no. 39 of the said judgment to buttress his aforesaid arguments on the point of discrimination. Paragraph 39 of the aforesaid judgement indicates that the said judgement was passed in the peculiar facts of the said case where the institution had received grant in aid for over a decade and thereafter the same was sought to be withdrawn and while doing so the state had discriminated against the said institution vis -a vis similarly situated institutions. Thus, the said judgement relied upon by the petitioners does not apply to the facts and circumstances of this case.

¶131

P. So far as circulars which has been relied upon by the writ petitioners issued by the State of Bihar are concerned, it is apparent from these circulars that it was only grant in aid which was given to the existing minority institution by way of salary of teaching and non- teaching staff and at that point of time there was no such enactment as the said Act of 2004 which has come up in the State of Jharkhand after creation of the State of Jharkhand and has also amended the Act of 1981. Accordingly this court is of the considered view that the respondent State is within its right to treat the petitioners at par with other educational institution of non-minority character in the matter of receiving aid from the government.

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Q. This court further finds that grant in aid has not been denied to the petitioners, rather the form of grant in aid has been directed

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to be as per the act of 2004 which amended the act of 1981 also. In the case of T.M.A. Pai Foundation vs. State of Karnataka reported in (2002) 8 SCC 481 it has been held that there is no right conferred upon a minority educational institution to receive grant in aid and Article 30(2) only means what it states viz. that a minority institution shall not be discriminated against where aid to educational institutions is granted. Paragraph nos. 141, 142, 143, 144 of the aforesaid judgement is quoted as under.-

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“141. The grant of aid is not a constitutional imperative. Article 337 only gives the right to assistance by way of grant to the Anglo-Indian community for a specified period of time. If no aid is granted to anyone, Article 30(1) would not justify a demand for aid, and it cannot be said that the absence of aid makes the right under Article 30(1) illusory. The founding fathers have not incorporated the right to grants in Article 30, whereas they have done so under Article 337; what, then, is the meaning, scope and effect of Article 30(2)? Article 30(2) only means what it states viz. that a minority institution shall not be discriminated against where aid to educational institutions is granted. In other words the State cannot, when it chooses to grant aid to educational institutions, deny aid to a religious or linguistic minority institution only on the ground that the management of that institution is with the minority. We would, however, like to clarify that if an abject surrender of the right to management is made a condition of aid, the denial of aid would be violative of Article 30(2). However, conditions of aid that do not involve a surrender of the substantial right of management would not be inconsistent with constitutional guarantees, even if they indirectly impinge upon some facet of administration. If, however, aid were denied on the ground that the educational institution is under the management of a minority, then such a denial would be completely invalid.

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142. The implication of Article 30(2) is also that it recognizes that the minority nature of the institution should continue, notwithstanding the grant of aid. In other words, when a grant is given to all institutions for imparting secular education, a minority institution is also entitled to receive it, subject to the fulfilment of the requisite criteria, and the State gives the grant knowing that a linguistic or minority educational institution will also receive the same. Of course, the State cannot be compelled to grant aid, but the receipt of aid cannot be a reason for altering the nature or character of the recipient educational institution.

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143. This means that the right under Article 30(1) implies that any grant that is given by the State to the minority institution cannot have such conditions attached to it, which will in any way dilute or abridge the rights of the minority institution to establish and administer that institution. The conditions that can normally be permitted to be imposed, on the educational institutions receiving the grant, must be related to the proper utilization of the grant and fulfilment of the objectives of the grant. Any such secular conditions so laid, such as a proper audit with regard to the utilization of the funds and the manner in which the funds are to be utilized, will be applicable and would not dilute the minority status of the educational institutions. Such conditions would be valid if they are also imposed on other educational institutions receiving the grant.

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144. It cannot be argued that no conditions can be imposed while giving aid to a minority institution. Whether it is an institution run by the majority or the minority, all conditions that have relevance to the proper utilization of the grant-in-aid by an educational institution can be imposed. All that Article 30(2) states is that on the ground that an

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institution is under the management of a minority, whether based on religion or language, grant of aid to that educational institution cannot be discriminated against, if other educational institutions are entitled to receive aid. The conditions for grant or non-grant of aid to educational institutions have to be uniformly applied, whether it is a majority-run institution or a minority-run institution. As in the case of a majority-run institution, the moment a minority institution obtains a grant of aid, Article 28 of the Constitution comes into play. When an educational institution is maintained out of State funds, no religious instruction can be provided therein. Article 28(1) does not state that it applies only to educational institutions that are not established or maintained by religious or linguistic minorities. Furthermore, upon the receipt of aid, the provisions of Article 28(3) would apply to all educational institutions whether run by the minorities or the non-minorities. Article 28(3) is the right of a person studying in a State-recognized institution or in an educational institution receiving aid from State funds, not to take part in any religious instruction, if imparted by such institution, without his/her consent (or his/her guardian’s consent if such a person is a minor). Just as Articles 28(1) and (3) become applicable the moment any educational institution takes aid, likewise, Article 29(2) would also be attracted and become applicable to an educational institution maintained by the State or receiving aid out of State funds. It was strenuously contended that the right to give admission is one of the essential ingredients of the right to administer conferred on the religious or linguistic minority, and that this right should not be curtailed in any manner. It is difficult to accept this contention. If Articles 28(1) and (3) apply to a minority institution that receives aid out of State funds, there is nothing in the language of Article 30 that would make the provisions of Article 29(2) inapplicable. Like Article 28(1) and Article 28(3), Article 29(2) refers to “any educational institution maintained by the State or receiving aid out of State funds”. A minority institution would fall within the ambit of Article 29(2) in the same manner in which Article 28(1) and Article 28(3) would be applicable to an aided minority institution. It is true that one of the rights to administer an educational institution is to grant admission to the students. As long as an educational institution, whether belonging to the minority or the majority community, does not receive aid, it would, in our opinion, be its right and discretion to grant admission to such students as it chooses or selects subject to what has been clarified before. Out of the various rights that the minority institution has in the administration of the institution, Article 29(2) curtails the right to grant admission to a certain extent. By virtue of Article 29(2), no citizen can be denied admission by an aided minority institution on the grounds only of religion, race, caste, language or any of them. It is no doubt true that Article 29(2) does curtail one of the powers of the minority institution, but on receiving aid, some of the rights that an unaided minority institution has, are also curtailed by Articles 28(1) and 28(3). A minority educational institution has a right to impart religious instruction — this right is taken away by Article 28(1), if that minority institution is maintained wholly out of State funds. Similarly on receiving aid out of State funds or on being recognized by the State, the absolute right of a minority institution requiring a student to attend religious instruction is curtailed by Article 28(3). If the curtailment of the right to administer a minority institution on receiving aid or being wholly maintained out of State funds as provided by Article 28 is valid, there is no reason why Article 29(2) should not be held to be applicable. There is nothing in the language of Articles 28(1) and (3), Article 29(2) and Article 30 to suggest that, on receiving aid, Articles 28(1) and (3) will apply, but Article 29(2) will not. Therefore, the contention that the institutions covered by Article 30 are outside the injunction of Article 29(2) cannot be accepted.”

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R. In the instant case the petitioners school has been treated at par with other non-governmental educational institutions in the matter of grant of aid. Accordingly, this court does not find any illegality or perversity in the impugned decision and this court also does not find the impugned decision being violative of Article 14 or Article 30(2) of the Constitution of India.

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As a cumulative effect of the aforesaid findings, these writ petitions are hereby dismissed.

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(Anubha Rawat Choudhary, J.)

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Jharkhand High court Ranchi Binit/A.F.R. Dated 20/07/2018

St. Marks High School,Banabira v. State of Jharkhand And Ors.

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St. Marks High School,Banabira v. State of Jharkhand And Ors.

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