DWARKA NATH TEWARI Vs. STATE OF BIHAR

JUDGEMENT

(1.) This petition under Art. 32 of the Constitution is directed against certain orders passed by officers of the Bihar Government in the Education Department, in respect of the Parsa High English School, and prays for an appropriate writ, direction or order restraining them from taking possession of the school, or in any way, interfering with the internal management of the said school. The first petitioner, Shri Dwarka Nath Tewari, M. P., claims to be the President of the Managing Committee of the school, the second petitioner, Shri Murlidhar Pandey, to be the Secretary, and the petitioners 3 to 6 to be members of the Managing Committee of the school. The 7th and the last petitioner is the Parsa High English School through the Secretary, Managing Committee. The State of Bihar is the first respondent, and the Board of Education, Bihar, is the second respondent. Respondents 3, 4 and 5 are officers of the Government, who have been constituted an ad hoc Committee pending the constitution of the Managing Committee of the school, according to the rules laid down in the Education Code.

(2.) The application is founded on the following allegations : In 1931, in pursuance of a unanimous resolution of the local public of Parsa, Thana head-quarters in the District of Saran in Bihar, a Managing Committee was formed with the first petitioner as its Secretary and other persons as members of the Committee, to raise subscriptions for, and to manage, the proposed High English School at Parsa. The school was started in 1932, by subscriptions raised from amongst the residents of villages round about the Parsa police station. The first petitioner claims to have made a substantial contribution to the funds of the school, in several instalments totalling over Rs.11,000. The day-to-day management of the school was entrusted to a Managing Committee consisting of 11 members, including teachers' representatives, the Head Master for the time being, and subscribers' representatives. The Managing Committee purchased several plots of land in the name of the Secretary on behalf of the Managing Committee, and constructed the school building on the said land. Thus, the Managing Committee claim to be the owners of the school and of the land and buildings. The school is open to persons of all castes and creeds, and nominal tuition fees were charged, 10 per cent., of the total strength of the students, were granted free student ships. In 1935, the school was given recognition by the Bihar Government. In 1950, the Managing Committee of the school was asked by the Government not to charge any fees from Harijan students, and to raise the percentage of free studentships from 10 to 15 per cent, of the total strength of the school. The Government also requested the school not to charge any fees from students in the 4th and 5th classes (Primary classes). The Government gave an annual grant to the school, amounting to between two and three thousand rupees. In 1952, the Government also requested the school authorities that higher salary should be paid to the teachers, the Government undertaking to meet the extra cost thus to be incurred. Prior to June 1954 the Managing Committee of the school did not contain any nominees. After June 1954, the Bihar Government Education Code was amended so as to require the inclusion of Government nominees, guardians' representatives, subscribers' representatives and donors in the Managing Committee of the school. About the same time, changes were made in the service conditions of teachers in the schools, enabling a teacher, who is punished by a Managing Committee, to prefer an appeal to the Education Department. The said change was made without any consultation with the school authorities who were not apprised of the changed rules. The then Head Master of the school, named Sheo Kumar Misra Sharma, on coming to know of the new changed rules about the service conditions of teachers, "began to show discourtesy to the members of the Managing Committee and began to neglect his duties and mismanage the School affairs. After several warnings to the Head Master to be of good behaviour and on his failure to do so, he was suspended by the Managing Committee towards the end of December 1955. After framing charges against him, and after receiving his explanation and hearing him, the Managing Committee found him guilty of the charges, and ordered his discharge. Soon after, on 2nd January 1956, the Managing Committee duly appointed another Head Master in his place. The discharged Head Master moved the Inspector of Schools, Tirahut Division, against the order of discharge. Under orders of the Director of Public Instruction, who is the President of the Board of Secondary Education, an inquiry was held by the Acting Secretary of the Board, who submitted his report, but no orders appear to have been passed thereon. The Director of Public Instruction ordered a fresh joint inquiry by the Secretary of the Board and a Deputy Director of Public Instruction. They heard the President and the Secretary of the school and the Head Master, and submitted a report. On a consideration of the second report, the Board of Education held that the discharge of the former Head Master was not justified, and ordered his reinstatement. About 12th December 1957, the Board of Education addressed a letter through the Inspector of Schools, to the Secretary of the school, ordering that "Shri Sheo Kumar Mishra Sharma should take charge of his duties as Head Master of the High School, Parsa by 16th December 1957 without fail." It also contained consequential orders as regards his salary during his period of suspension, his increment and provident fund contribution. It also required the re-constitution of the Managing Committee of the school with all possible speed. The letter ended with the following paragraph :

(3.) It is not necessary for the purposes of this case to refer in detail to the infructuous proceedings taken in the High Court under Art. 226 of the Constitution, and to the attempts by the school authorities to obtain a temporary injunction against the members of the ad hoc committee and the discharged Head Master who had been ordered to be reinstated, by way of interlocutory petitions in the suit instituted by the second petitioner in the Court of the Subordinate Judge of Chapra (headquarters of District Saran). The Court's order refusing such a temporary injunction restraining the defendants from taking charge of the school, was upheld by the High Court in its revisional jurisdiction, by its order dated May 13, 1958. After the petitioners had failed to get any relief from the Courts aforesaid in those proceedings, they got into touch with the officials of the Government of Bihar, for explaining their position vis-a-vis the management of the school, and the legal position of the Managing Committee of the school. Ultimately, on July 31, 1958, the first petitioner received a letter dated July 28,1958, from the third respondent to the effect that in view of the Court's refusal to issue any injunction against the ad hoc committee, he, as the President of that committee, proposed to take charge of the school on August 14, 1958, and he requested him to hand over complete charge of the school to the ad hoc committee. In view of the letter aforesaid, the petitioners moved this Court under Art. 32 of the Constitution, for the protection of their alleged fundamental rights to property. They alleged that they apprehended "that if charge is not given over as requested in the said letter. possession will be taken by force with the aid of the police and local executive authorities." They also moved this Court for an ex parte order staying the handing over of the school and its property to the respondents. By its order dated August 11, 1958, this Court granted ex parte stay till the hearing of the Notice of Motion. In answer to the Notice of Motion, the 4th respondent swore an affidavit to the effect that it was not sought to interfere with the property, of the school, but with the management thereof, in the interest of the public; that the order dated July 28, 1953, was in accordance with the provisions of the Bihar Education Code which had the force of law; that the petitioners had failed to obtain an injunction or order from the Courts below in a pending suit in which identical questions has been raised; that by the order aforesaid of the Government, it was not intended to take over the management of the school, but to re-constitute an efficient Committee of management. After hearing the parties, this Court made the following order on September 8, 1958, in the stay matter :