JUDGMENT
V. Ramaswami, C.J.
1. In this case the petitioners have obtained a rule from the High Court asking the respondents to show cause why a writ in the nature of mandamus under Article 226 of the Constitution should not be issued commanding the respondents not to give effect to the orders contained in Annexures A and A1, dated the 23rd March, 1957, and also not to withhold the grants-in-aid to the Dayanand Kanya Vidyalaya located at Mithapur.
2. Cause has been shown by the Advocate-General on behalf of the State of Bihar and other respondents to whom notice of the rule was ordered to be given.
3. Petitioner No. 1 is the Arya Pratinidhi Sabha, a registered organisation of persons professing the Arya Samaj faith. Petitioner No. 2 is the Vice President of the Sabha, and petitioner No. 3 is the President of the Mithapur branch of the Sabha. It is alleged fay the petitionars that the Arya Pratinidhi Sabha has established several schools at Patna, including a school for boys and another for girls at Mithapur. These schools are administered and managed by persons of the Arya Samaj faith, and Sri Brajnandan Singh, who was the President of the Arya Pratinidhi Sabha, was also the President of the Managing Committee of Dayanand Kanya Vidyalaya. After the death of Sri Brajnandan Singh, Dr. Dukhan Ram became the President both of the Arya Pratinidhi Sabha and also of Dayanand Kanya Vidyalaya.
It is further stated by the petitioners that the funds required for the buildings and maintenance of the school were raised by the members of the Arya Pratinidhi Sabha by subscriptions and donations from amongst themselves as well as from the general public. The schools also receive grants-in-aid from the State Government, and, as regards the buildings, grants-in-aid were also made by the Patna Administration Committee. The petitioners further allege that the property of the school vests in the Arya Pratinidhi Sabha, and the administration and management of the school always vested in a Managing Committee constituted by the President of the Sabha with some representatives of the guardians of the students of the school and of teachers.
It is said that the members of the Managing Committee are all Hindus and the special features of the school education are that teaching for conservation of Vedic culture is imparted to the students and Vedic prayers are offered by the students of the schools and Vedic Havan is done once a week by the students and teachers of the school in the school premises as part of the school curriculum. It was suggested by the Director of Public Instruction that the Managing Committee should be reconstituted according to the resolution of the Government of Bihar, dated the 7th, May, 1956, with regard to High Schools run by missionaries and other societies or trustees.
According to this resolution, the Managing Committee should consist ordinarily of eleven members, out of which (a) two seats should go to the missionaries or society or trust, (b) two seats to subscribers, (c) three seats to the nominees of the Education Department, and (d) two seats to the representatives of guardians. It was suggested by the Director of Public Instruction in his “findings”, dated the 28th July, 1956, that the Arya Samaj would nominate two members and thereafter two subscribers would be elected and the Education Department would nominate three members.
The Managing Committee of Dayanand Kanya Vidyalaya was accordingly reconstituted in the manner suggested by the Director of Public Instruction, and on the 13th November, 1956, the newly constituted Committee met and elected Dr. Dukhan Ram as the President and Sri Murli Manohar Jayaswal as Secretary of the Committee. On the 23rd of March, 1957, the Director of Public Instruction, respondent No. 2, wrote the letter, annexure A1, to Dr. Dukhan Ram that the Arya Samaj could not be represented in the Managing Committee, and “as the present management has persisted in not complying with the orders of the Department, it has been decided to constitute an ad hoc committee consisting of Government nominees only, i.e. the S.D.O., Patna, District Inspectress of School, Patna, and the Lady Principal, Bankipore Girls High School, Patna”.
Annexure A is the letter of the District Inspectress of Schools, dated the 23rd March, 1957, to Dr. Dukhan Ram, saying that the management and charge of the school should be handed to the ad hoc Committee immediately. The case of the petitioners is that the order of the Director of Public Instruction constituting an ad hoc Committee for taking over the management of the school is unconstitutional, illegal and ultra vires. The petitioners accordingly pray that a Writ in the nature of mandamus should be issued against the respondents commanding them not to give effect to the orders contained in annexures A and A1, and also further commanding them to pay the grants-in-aid to Dayanand Kanya vidyalaya.
4. The application is opposed by the State of Bihar and other respondents. It is stated in, the counter-affidavit that the property of the school is not vested in the Arya Pratinidhi Sabha and that the administration and management of the school is not vested in or controlled by the Arya Pratinidhi Sabha. It is further stated that the petitioners were not carrying out the orders of the Director of Public Instruction and so the ad hoc Committee was properly constituted for taking over the administration of the school by the Director of Public Instruction. It was also submitted in this connection that the amended Article 182 of the Education Code empowers the Board of Secondary Education to make such arrangement for the management of the school as it considered necessary, pending the reconstitution of the Managing Committee, in the circumstances mentioned in that Article,
5. It is necessary at this stage to reproduce in full the provisions of Article 182 of the Education Code as subsequently amended :
“182. Withdrawal or withholding of recognition.—Recognition shall only be withdrawn or withheld for reasons to be recorded in writing and on one of the following grounds:
(a) that the school does not follow the course of study prescribed or approved by the department;
(b) that it has committed a wilful breach of the transfer rules;
(c) that it has not attained or does not attain to a reasonable standard of efficiency;
(d) that it does not maintain a satisfactory standard of discipline, or employs any teacher who takes part in political agitation directed against the authority of Government or who endeavours to inculcate opinions tending, to excite feelings of political disloyalty or disaffection among the pupils, or to create hatred between, the different classes of his Majesty’s subjects;
(e) that the managing committee of the school is not functioning in a way conducive to the proper maintenance of discipline among the teachers and pupils and is not carrying out the directions of the Board or administering the finances of the school property;
(f) that it appears to the authority empowered to grant recognition for any other reason to be injurious to the interest of education.
For reasons specified in Clause (e) the Board instead of withdrawing or withholding recognition may withdraw its approval of the constitution of the Managing Committee and make such arrangement for management of the school as it considers suitable pending re constitution of the Managing Committee.”
6. Reference was also made in the course of argument to two resolutions of the Government of Bihar in the Education Department, the first resolution being No. 17714, dated the 28th September, 1954, and the second resolution being No. II/R4-08/55E-2561, dated the 7th May, 1956. Paragraphs 3, 4 and 9 of the first resolution are to the following effect:
“3. The President and the Secretary of the Committee shall be selected from amongst the members of the Managing Committee and the election shall be subject to the approval of the Director of Public Instruction. If the Headmaster is elected as the Secretary he shall not attend the meeting of the Managing Committee at the time that his personal case is under consideration.
4. The Director of Public Instruction shall have the power to remove the Secretary or any member of the Managing Committee of the school after giving him a reasonable opportunity to explain his position. The Director will be the sole Judge to decide if the opportunity given is reasonable. Any vacancy may be filled temporarily by nomination by the Director pending its being filled up in the prescribed manner.
X X X X X
9. All High Schools to be newly recognised or of which the recognition is to be renewed, should have Managing Committee formed in accordance with these rules. Managing Committees of the existing recognised High Schools also tee re-organised on these lines within such time and in such stages as may be laid down by the Director. Even where the Managing Committees, are not recognised immediately, the Director of. Public Instruction shall be competent, with immediate effect, to exercise the powers mentioned under Rule 4.”
The second resolution relates to the constitution of the Managing Committee of High Schools run by missionaries and other societies or trustees. It is necessary to reproduce this resolution in full.
“1. Read Government Resolution No. 17714, dated the 28-9-54 on the constitution of the Managing Committees of non-Government High Schools.
2. The following order will govern the constitution of Managing Committees of High Schools run by missionaries and other societies or trustees –
The Managing Committee shall ordinarily consist of 11 members as follows –(a) Not more than two seats will go to the missionary or any other society or trust, which is responsible for establishing the school and maintaining it.
(b) Not more than two seats will go to the subscribers, if subscription is raised from the public generally,
(c) If no subscribers are forthcoming, the two seats will be filled in the following manner-
In Schools where no subscription is raised from the public generally, only one of the two seats meant for subscribers will go to the mission, society or trust and the other seat to an additional representative of guardians mentioned in sub-rule.
(d) Subject to Sub-rule (b) above, not more than two seats will go to the guardians of the pupils reading in the school. The guardian members will be selected by the rest of the Managing Committee.
(e) Not more than three nominees of the Director of Public Instructions.
(f) The Headmaster (ex-officio).
(g) A representative of the teachers.
3. Orders contained in paras 2-9 and 11 of the Government resolution No. cited above shall apply to the Managing Committees of High Schools run by missionaries and other societies or trust.”
7. It is submitted by the Advocate-General on behalf of the respondents that the Director of Public Instruction has the power to impose an ad hoc Committee under the provisions of Article 182, clause (e), of the Education Code. It was argued that the petitioners were not carrying out the directions of the Board of Secondary Education, made through its President, namely, the Director of Public Instruction, Reference was made to Article 780 of the Education Code, which provides that on urgent matters the President of the Secondary Board of Education has power to give directions, provided he reports the case at the next meeting of the Board. Article 780 (d) is in the following terms :
“780 (d). Should urgency require that any matter should be disposed of before the Board can next meet, the President may dispose of it, consulting the other members by correspondence if time permits; but he shall report any such case at the next meeting of the Board.”
The submission of the Advocate-General was that the petitioners have failed to carry out the orders of the Board of Secondary Education and so there was a justification for imposing an ad hoc Committee. In reply to this argument learned Counsel for the petitioners submitted that there was no failure to comply with the orders of the Director of Public Instruction. Reference was made in this connection to a letter of the Deputy Directress of Education, dated the 6th of August, 1956, which is to the following effect:
“Dear Dr. Ram,
Please recall your discussion with the Director of Public Instruction, Bihar, on 21st July, 1956, regarding the affairs in Dayanand Kanya Vidyalaya, Mithapur, Patna and kindly find enclosed herewith the findings, of Director of Public Instruction, Bihar in this case.
Further I have to say that the Director of Public Instruction, Bihar, has been pleased to decide that the old Secretary, Dr. A. R. Prasad and the Headmistress, under suspension, Mrs. S. Lall, should be immediately restored to their offices pending reconstitution of the Managing Committee of the Vidyalaya on the new lines and approval of the election of office bearers and drawing up fresh proceedings against the Headmistress.
Immediate effect to the decision of the Director of Public Instruction, Bihar, in this case may be given.
The receipt of this letter may be acknowledged.
Yours sincerely,
Sd.. D. H. Acharjee,
6-8.”
Reference was also made to another letter of the Deputy Directress of Girls’ Education, dated the 21st of September, 1956, which is reproduced below:
”Dear Dr. Ram,
Please recall our talk held on the 25th August, 1956, at the residence of D. P. I. regarding the affairs in Dayanand Kanya Vidyalaya, Mithapore, Patna.
It has not yet been reported to me whether the decision of D.P.I, regarding restoring Dr. A. R. Prasad and Mrs. S. Lal to their respective offices has been implemented.
You are, therefore, requested kindly to let me know by the return of the post as to how the matter stands.
Yours sincerely,
Sd. B. P. Sinha,
(for D. H. Acharjee)
21-9-56″.
In reply Dr. Dukhan Ram sent the following letter to the Deputy Directress of Girls’ Education :
“Dear Miss Acharjee.
With reference to your D. O. No. 4829, dated the 21st instant, I am to state that the President of the Board of Secondary Education, Bihar, has been pleased to nominate three Government nominees on the Managing Committee of this Vidyalaya, which makes up the strength of nine members as noted hereunder, on the newly reconstituted Committee. Now we are arranging to call the preliminary meeting of this Committee to elect two guardians’ representatives to complete the Committee. Soon after that, the election of the Secretary and the President shall take place. In view of this there is no point in handing over the charge to Shri A. R. Prasad for such a short period.
Regarding restoration of Mrs. S. Lall to the post of Headmistress, we are informing her to join her post immediately.
1.
Dr. D. Ram
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}
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Nominted by the Arya Samaj.
2.
Shree Jiwan Datt
3.
Shree Brahmadeo Narayan
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}
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Duly elected by subscribers.
4.
Shree Murli Manohar Jaiswal.
5.
Sub-Divisional officer, Sadar Patna
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}
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Government nominees
6.
District Inspectress of Schools Patna
7.
Lady Principal Bankipore Girls High School
8.
Shrimati Shanti Devi
Teachers’ representative.
9.
Headmistress.
Yours sincerely,
Sd. D. Ram.
24-9-56″
On the 12th of February, 1957, the Director of, Public Instruction wrote as follows to Dr. Dukhan Ram :
“Dear Ram,
Your D. O. letter No. 10, dated the 25th January, 1957, regarding the constitution of the Managing Committee of Dayanand Kanya Vidyalaya, Mithapore.
The affairs of the school were personally enquired into by me. I had also discussed with you on the 21st July, 1956, and copy of my findings was communicated to you along with the letter No. 4027, dated the 6th August, 1956, from the Deputy Directress of Girls’ Education: in which you were requested to re-instate the Headmistress Mrs. S. Lall and the Secretary Dr. A. R. Prasad pending the reconstitution of the Managing Committee of the Vidyalaya along new lines. You were reminded to give effect to the decisions in Deputy Directress’s letter No. 3829 dated the 21st September, 1956, and No. 480, dated the 2nd February, 1957. I have noted with regret that the decisions have not been implemented yet. I have, therefore, to request you that the irregularities committed may be regularised at a very early date by restoring the old Secretary who should be asked to take steps to reconstitute the Managing Committee on new lines.
In regard to the withholding of the grant-in-aid being withheld the department itself is very anxious to release the obvious financial hardship to the teachers who are the main sufferers. But as you know, this can only be done through the approved Secretary of the School. The matter, therefore, rests in your hand to expedite release of the grant.
With regard to your letter dated the 25th January, 1957, I shall be glad to meet you on the 15th February at 3-30 P-M. in my office in the Secretariat. A deputation is hardly necessary, You and I should discuss.
Yours sincerely,
Sd. K. P. Sinha.”
On the 19th February, 1957, Dr. Dukhan Ram replied to the Director of Public Instruction as follows :
“Dear Mr. Sinha,
I am in receipt of your D. O. No. VI/G8-02/ 56-E/611, dated the 12th instant.
It pains me to find from your letter that instead of appreciating the zeal with which I and my colleagues have reconstituted the Managing Committee of the School on new lines in so short a time, (as desired by you during my last discussions with you), you feel that your instructions have not been implemented as yet. I would like to tell you that it was simply because of your suggestion that Mrs. S. Lall was reinstated as Headmistress immediately by me. It is true that the Deputy Directress of Education (Girls) had asked to restore Dr. A. R. Prasad also as Secretary, but when he could not be elected even as a member (subscriber or guardian), it was not possible for me to take him as Secretary. If your department was so very keen to thrust him on the Committee of the Vidyalaya, the best course would have been to include him among the three departmental representatives nominated by you.
It would not be out of place to mention here that the old Managing Committee was dissolved, on 5-8-56 in accordance with letter No. 42, dated 21-5-56 from the Inspector of Schools. After that I met you on 21st July, 1956, and according to your instructions, two subscriber members out of nine were duly elected on 22-8-1956. Then the two guardians’ representatives were also elected on 7-10-56, under the presidentship of Mrs. H. Rizvi, the District Inspectress of Schools. Thereafter on 13-11-1956, a meeting of the newly constituted Committee including the three Government nominees was held under the Presidentship of Sri J. N. Mishra, the S.D.O., Sadar, Patna, in which the President and Secretary were unanimously elected.
It is worth nothing that we have been informing your Department about all these in due course and your Department had been good enough to respond to it from time to time by sending the Government nominations, asking the President to call the meeting of the reconstituted Committee and so on. You will agree with me that now when everything has been finalised, it does not look fair to raise the objection just to provide a particular person (Dr. A. R. Prasad) as Secretary, although he had not a single supporter in the old Managing Committee.
I am glad to learn that your Department is realising the financial hardship to the teachers and is very anxious to release the grant-in-aid. If it is really so, would it not be possible to get the money distributed through the Government nominee, one of whom is an officer (District Inspectress of School), of your own department. Please excuse me, I could not follow you exactly, when you say that the matter rests in my hand to expedite release of the grant dO you want me to take Dr. A. R. Prasad, as the Secretary over and above the eleven members Committee making it twelve?
I thank you for your kindly giving time on 15th instant at 3-30 P.M. in your office to discuss the matter, although, I could not avail of it, due to my absence from this place on that date. However, I shall put up the matter before the Managing Committee for their consideration. In the meantime, could you kindly save the Institution from ruins by paying the salary and Government p. A. to the staff of the school through the District Inspectress of Schools direct, as it has nothing to do with the Committee.
Thanking you once again,
I remain,
Yours sincerely,
Sd. D. Ram. 20-2-57.”
In my opinion, the submission of learned Counsel for the petitioners is right and there has been no refusal on the part of the petitioners to comply with the directions of the Director of Public Instruction. It appears from the letters of Dr. Dukhan Ram, that Mrs. Lall was reinstated as Head Mistress, and with regard to Dr. A. R. Prasad, it was not possible to comply with the order of the Director of Public Instruction since Dr. A.D. Prasad could not be appointed as Secretary because he was not elected as a member of the Managing Committee either on behalf of the subscribers or on behalf of the guardians. Dr. Dukhan Ram, rightly points out that Dr. Prasad was not even nominated by the State Government as one of the nominees of the Managing Committee; and if Dr. Prasad was not nominated or elected as a member of the Managing Committee, it was not possible to appoint him as Secretary of that Committee;
No reply was sent by the Director of Public Instruction to Dr. Dukhan Ram on the point raised in the latter’s letter, but on 23-3-1957, the Director of Public Instruction wrote to Dr. Dukhan Ram the letter, annexure A1, wherein he stated that the Arya Samaj had no right to be represented in the Managing Committee and an Ad hoc Committee was being appointed to take charge of the school because “the management has persisted in not complying with the order of the Department.” In my opinion, there is no failure on the part of the petitioners in the circumstances to carry out the directions of the Director of Public Instruction, and so the order of the Director of Public Instruction constituting an ad hoc Committee in annexure A1 is illegal and ultra vires. In other words, the Director of Public Instruction has no authority to impose an ad hoc Committee under the provisions contained in Article 182 of the Education Code, and the orders of the Director of Public Instruction contained in annexures A and A (1) of the application are illegal and ultra vires.
8. I shall, however, assume in favour of the respondents that there has been a failure on the part of the Managing Committee to comply with the directions given by the Director of Public Instruction within the meaning of Article 182 of the Education Code. Even upon this assumption the orders contained in annexures A and A1 must be held to be unconstitutional since there is a violation of the guarantees contained in Articles 29 (1) and 30 of the Constitution. Article 29 (1) is in the following terms :–
“29. (1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.”
Article 39 states :–
“30. (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
(2) The State shall not, in granting aid to educational institutions, discriminate against
any educational institution on the ground that it is under the management of a minority, whether based on religion or language.”
The argument addressed on behalf of the petitioners is that Dayanand Kanya Vidyalaya, is a denominational school established by the Arya Pratinidhi Sabha and administered and managed by persons belonging to that denomination. It was alleged in the application that the funds of the buildings and maintenance of the school had been raised by the Arya Samajists and the members of the Arya Pratinidhi Sabha. It was also asserted on behalf of the petitioners that the properties of the school vests in the Arya Pratinidhi Sabha and the administration of the school also vested in it.
In paragraph 11 of the application there is a distinct allegation that “special teachings for conservation of Vedic culture are imparted to and Vedic prayers are offered by the students of the school and Vedic Havan is done once a week by the Students and Teachers of the school in the school premises as part of the school curriculum.” In the counter-affidavit there is no proper denial of paragraph 11 of the application. In paragraph 14 of the counter-affidavit it is only said that ”there is nothing to show that any special teaching for conservation of the Vedic culture is imparted and that Havan is done regularly once a week in the school premises since the establishment of the Vidyalaya.” The denial in paragraph 14 is, therefore, not an effective denial and it must be taken that the allegation made in paragraph 11 of the application stands uncontroverted.
It is true that in the counter-affidavit the respondents have denied that the Arya Pratinidhi Sabha has contributed funds to the school as a body and have stated that the amount never passed through the cash-book of the Arya Samaj. It is also denied that the property of the school and the administration and management of the school are vested in the Arya Pratinidhi Sabha. It is, however, not possible, to accept the correctness of these statements in the counter-affidavit, because there is an admission by the Director of Public Instruction that Dayanand Kanya Vidyalaya is a denominational school and the Arya Samaj has the right to nominate two members in the Managing Committee. Paragraph 3 of the “findings” of Mr. K. P. Sinha, Director of Public Instruction, dated 28-7-1956, is to the following effect :–
“3. From a letter dated 16-7-56, received from Sri B. D. Narayan it would appear that at a meeting held on 5-7-1956, Dr. D. Ram and Sri B. D. Narayan were elected President and Secretary, respectively, of the Managing Committee of the school and formal approval of the D. P. I. was sought to this election. I personally explained to Dr. Ram and Sri B. D. Narayan, who saw me on 21-7-1956, that even this election held on 5-7-1956, was irregular as it was not made by properly and fully-reconstituted Managing Committee.
The procedure of the reconstitution of the Managing Committee was explained to Dr. Ram and Sri B. D. Narayan. After the Arya Samaj nominated two of its members, two subscribers had to be elected after a date was fixed for enrolment of subscribers. The Department had to nominate three members and the preliminary committee of nine members had to elect two guardians. It was only the fully reconstituted Managing Committee consisting of the 11 members which was competent to elect its President and Secretary. Dr. D. Ram and Sri B. D. Narayan agreed to abide by the new rules and reconstitute the management as personally explained to them.”
This finding was given by the Director of Public Instruction after personally enquiring into the matter. The findings of the Director of Public Instruction and the recommendations contained in paragraph 3 of the findings must be read in the context of the resolution of the State Government, dated 7-5-1956, with regard to the constitution of the Managing Committees of High Schools run by missionaries and other societies or trustees. If the finding of the Director of Public Instruction is read in this context, it is clear that there is an admission of the case of the petitioners, namely, that the school was founded by the Arya Pratinidhi Sabha and that the management and control of the school are vested in the Arya Pratinidhi Sabha. In this connection it is also necessary to refer to the application of Sri Dhrubnarain Gupta and three others for being added as parties to this Case.
In this application Dhrubnarain Gupta and others have claimed that they are donors and successors of donors for the building and expenses of Dayanand Kanya Vidyalaya, as an Arya Samaj school and for promoting Arya Samaj principles. In these circumstances I am satisfied that the case of the petitioners must be accepted as correct and it must be held that Dayanaud Kanya Vidyalaya was established by the Arya Pratinidhi Sabha and the control and administration of the school is vested in the Arya Pratinidhi Sabha and that the title to the property of the School also vests in the Arya Pratinidhi Sabha. It follows, therefore, that the school has been established and is administered by a religious minority, namely, the Arya Pratinidhi Sabha, within the meaning of Articles 29 and 30 of the Constitution, and the case of the respondents to the contrary must be rejected as incorrect.
9. It is not necessary in this case to express any opinion on the constitutional validity of the Government circular (No. II/R4-08/55E-2561, dated 7-5-1956, regarding the constitution of the Managing Committees of High Schools run by missionaries and other societies and trustees. The effect of the circular is that paragraphs 3, 4 and 9 of the Government circular No. 1771.4, dated 28-9-1954, also applies to High Schools run by missioneries and other societies and trustees. It is necessary in this connection to say that paragraph 4 of the Government circular dated 28-9-1954, states that “the Director of Public Instruction shall have the power to remove the Secretary or any member of the Managing Committee of the School after giving him a reasonable opportunity to explain his position” and that “the Director will be the sole judge to decide if the opportunity given is reasonable.”
Paragraph 3 of the Government circular also states that “the President and the Secretary of the Committee shall be selected from amongst the members of the Managing Committee and the election shall be subject to the approval of the Director of Public Instruction.” As I have said, these provisions apply to the Management of High Schools run by missionaries and other societies and trustees. It is not necessary for me to express an opinion in this case as to whether these provisions are unconstitutional, but I am definitely of opinion that the orders of the Director of Public Instruction contained in Annexures A and A (1) are unconstitutional in this case, and the provisions 9f Article 182 (e) and the last clause of that Article must be held to violate Articles 29 and 30 of the Constitution so far as it authorises the Board of Secondary Education or its President to make orders for imposing an ad hoc Committee, as contained in annexures A and A (1) with regard to the denominational school of which the petitioners are trustees and in whom the control and administration of the school are vested.
10. It is contended on behalf of the respondents that the constitutional right guaranteed in Articles 29 and 30 are not absolute. It was submitted that the State Government may always withdraw recognition from schools which do not maintain a satisfactory standard of discipline or where there is no proper administration of finances. That is no doubt a correct proposition to state. I think it is open to the State Government to impose regulations with regard to maintenance of discipline or standard of efficiency even as regards schools run by religious minorities. It is also open to the State Government to say that recognition would be withdrawn or the grant-in-aid would not be given if teachers take part in seditious agitation or if there is danger to public order or morality or health.
The constitutional protection under Articles 29 and 30 is, therefore, not absolute and it does not involve dispensation from obedience to general regulations made by the State for promoting the common good of the community. But in the present case the action of the Government in imposing the ad hoc committee and threatening to withdraw grant-in-aid as ordered by the respondents in Annexures A and A 1 transcends these limitations, and I think it infringes the constitutional protection guaranteed under Articles 29 and 30 of the Constitution. It is manifest that the ad hoc Committee imposed by annexures A and A (1) consists of three officials and that complete power of control and management has been vested in the ad hoc Committee and the petitioners who are trustees of the institution, have been divested of the control and management.
The power given to the ad hoc Committee is absolute and unfettered and there is not even a direction given by the Director of Public Instruction that in exercising their powers the ad hoc Committee should respect the aims and objects of the trust or the endowment. In my opinion the action of the respondents in imposing the ad hoc Committee on the Dayanand Kanya Vidyalaya, therefore, transcends the constitutional limitation on their power and invades the sphere of intellect and spirit which it is the purpose of Articles 29 and 30 to preserve and to protect. The matter is very clearly put by Mr. Justice Jackson, of the American Supreme Court in a somewhat similar case in West Virginia State Board of Education v. Walter Barnette (1943) 319 U. S. 624 at p. C41 (A) as follows :
“Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unilattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great . But freedcm to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”
11. My concluded opinion, therefore, is that the order of the Director of Public Instruction imposing the ad hoc Committee on the Dayanand Kanya Vidyalaya contained in annexures A and A1 of the application is unconstitutional, void and inoperative. I am also of the opinion that all taken by the ad hoc Committee subsequent to its formation, including the formation of the new Managing Committee on 21-7-1957, is illegal and ultra vires. In my opinion, the petitioners should be granted a writ in the nature of mandamus commending the respondents not to give effect to the orders of the Director of Public Instruction contained in annexures A and A (1) of the application and also not to withhold the grants-in-aid payable to the Dayanand Kanya Vidyalaya. I would accordingly allow this application with costs. Hearing fee Rs. 100/-
R.K. Choudhary, J.
12. I agree.