- (1.) THIS is an application under Article 226 of the Constitution by Daughters of the cross, a society registered under the west Bengal Societies Registration Act 1961 and 9 others claiming to be President and members of the Managing committee of St. Agnes Convent school. They challenge the action of the State Government and the Assist that Inspector of Anglo Indian Schools, west Bengal. One Mrs. Augustine who was an erstwhile teacher in the said school has also been made respondent as respondent no. 6 to this application. The main challenge in this application centre round the order dated 17th of march, 1978. The said order reads as follows : "1. Whereas it appears that St. Agnes's Convent School, situated at 1, king's Road, Howrah, has no governing Body duly constituted in conformity with provisions of Ch. II of the Code of Regulations for european (now Anglo Indian)Schools in Bengal (now West bengal), 1929. And Whereas the said school has failed to maintain proper records, to maintain the desired standard of discipline and to appoint adequate number of properly qualified teachers. Now, therefore, the Government in the Education Dept. is pleased to appoint, in the public interest, Shri k. M. Parvat Asst. Inspector in anglo Indian Schools as the administrator of the said school to exercise the powers and to perform the duties and functions of the governing body and do all such things as may be considered necessary for proper functioning of the said school till such time as a governing Body is duly constituted. By Order of the Governor Sr. K. P. Banerjee dy. Secretary to the 17. 3. 78. Govt. of W. B. " The other challenge relates to the order of stoppage of payment of dearness allowances and the order of reinstatement of Mrs. Augustine as a teacher of the said school.
(2.) IN order to appreciate the contentions and the challenge it is necessary to refer to certain backgrounds. It is stated that as early as August, 1880 daughters of the Cross St. Agnes's Con vent School, popularly known as St. Agnes's Convent School, was established at no. 1, King's Road Howard, by the congregation of the Daughters of the Cross which was a religious organisation, composed of members professing the Catholic faith. One Sister maria, Superiors of St. Vincent's home, it is stated on behalf of the petitioners, took the initiative in establishing the School and the sisters during the initial days of the school according to the narration of the petitioners, had to attend the school by crossing the river highly by boat. The management of the school was entrusted with a Managing committee nominated by and formed under the guidance of the Provincial superior of the Calcutta Province of the Daughters of the Cross. It is. the case of the petitioners that all the religious congregations including Daughters of the Cross professing the Roman Catholic faith are constituted and function according to Canon Law i. e. laws of the Roman Catholic Church. The authority over the members of a religious congregation and its various institutions of any particular territory, according to the Canon Law, is exercised, according to the petitioners, for the said territory by a superior appointed by the superior General of the whole Congregation. In case of religious congregation of the Daughters of the Cross, all the members of the Congregation, and all its institutions in West Bengal were directly under the jurisdiction of the sister Provincial of Calcutta, who used to be appointed for a fixed period by the Superior General of the whole congregation. St. Agnes's School, Howrah, being one of the educational institutions constituted and run by he daughters of the Cross and situated within the jurisdiction of the Sister Provincial of Calcutta, the ultimate power of administration of the said school was, according to the petitioner vested in the said Sister Provincial. The said sister Provincial in exercise of power and authority vested in her constituted the Managing Committee of the school by nominating its members and filled up vacancies as might occur due to death or otherwise by nominating new members. The said Managing Committee, was according to the petitioners, entitled to establish and administer the school in accordance with the direction and supervision of the said Sister Provincial. In this connection the petitioners have relied upon in this application on an affidavit of Lawrence Cardinal piracy S. J. Roman Catholic Archbishop of Calcutta. I shall have occasion to refer to the said affidavit later. The school is affiliated to the Council of Indian School certificates. The said council issues rules and circulars regarding syllabus and examination. There are, issues rules and circulars regarding syllabus and examination. There are, however, according to the petitioners, no rules framed by the Council for the administration of the school. The school was recognised by the then Provincial Government of Bengal and is still recognised by the Government of west Bengal. The Government of Bengal in or about 1929 had framed a cede known as the Code of Regulation for european Schools in Bengal which is now known as the "code of Regulation for European" (now Anglo Indian)Schools in Bengal (now West Bengal)1929. The petitioners state that the St. Agnes's School is an Anglo Indian School within the meaning of the said Code i would have occasion to refer to the said Code later. It does not appear, however, that the said Code was framed by the Government in exercise of any legislative power. According to the petitioners the said Code contains only administrative instructions. It is also necessary to note that the Government of west Bengal has from time to time issue 1 various notifications and orders grant-in-aid to the high schools in West Bengal members of the teaching staff of the school like all other recognised school used to get Rs. 162/- per month, Clerical staffs used to get Rs. 139. 50 per month and Class IV staffs used to get rs. 138. 50 per month as deranges allowances.
(3.) THE genesis of trouble leading to the present application according to the petitioners is the action taken against one Mrs. Augustine a member of the teaching staff of the school. It is stated that on or about 1st of January, 1970 a letter was issued appointing Mr. Augustine as a member of the teaching staff of the school on probation for on year. The letter of appointment, it stated, stipulated that probates might be extended for another year doing which time the agreement might be terminated with one month's notice on either side, in default of which on month's salary must be remitted. It further provided that at the end of the said 1 period the drawing up of a formal agreement between the teacher of the management would be taken up. According to Mr. Augustine in her affidavit in this rule no formal agreement was. in fact drawn up. It is stated that Daughters of the Cross was registered as society under the West Bengal Societies registration Act, 1961 interalia, with the object to perform, do all such things may be deemed necessary or expediter for the education of youth, pursuit of science and general diffusion of sociamoral religious and secular knowledge in accordance with the charitable, dedicational, moral and religious principles of the Daughters of the Cross, hereinafter known as the Congregation. This is the first object of the society. There were, seven members of the Governing Body and rules, and regulations have been provided as required under the Societies Registration Act, 1961. Only members of the Congregation are eligible to be members of the society. 'provincial' has been defined to mean the member of the congregation appointed Head of the province of Calcutta. It is further provided in the rules of the said registered society that the Provincial for the time being shall be President of the Society and during her absence through illness or otherwise such member of the Governing Body as shall be nominated by the president shall act as the President of the Society. The rules provided for membership and other ancillary matters. The rules also provided for convening of general Meetings which are described as Annual General Meetings and Extraordinary General Meetings. The businesses to be conducted at the Anural General Meeting are also provided and how the proceedings at the General meetings will be conducted have been stipulated. The rules and regulations further stipulate that the Governing body shall consist of the President and not less than six other members of the society who' shall be appointed to the governing Body and may be removed there from at any time by the President at her discretion. The members of the first Governing Body are stipulated and it is further provided that any casual vacancy which may occur in the Governing Body by reason of resignation or otherwise may be filled up by the President. The rules also stipulate the procedure to be followed by the Governing body. The rules and regulation prescribe that the management and control of the Society shall be vested in the governing Body who shall be entitled to exercise all such powers and do all such acts and things as the Society is authorised to do under the Act. The rules and regulations also provide for other ancillary matters like accounts, appointment of auditor etc.;