DIPENDRA NATH SARKAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application under Article 226 of the Constitution of India has been presented by the Honorary Joint Secretary of the Bankipore Brahmo Samaj (hereinafter to be referred to as the Samaj) as authorised by it by a resolution dated the ist of May, 1960, which is annexure 'X' to the petition. The petitioner has prayed for issue of a writ of mandamus commanding the respondents to cancel the order contained in their letter No. 7863-64, dated the 11th of April, 1960 and to forbear from giving any effect to the said order or to any other orders passed in pursuance of the Government Resolutions, dated the 28th of September, 1954 and the 7th of May, 1956. Rule was issued by this Court to the respondents to show cause as to why a writ of mandamus, as stated above, should not be issued against them. Respondent No. 1 is the State of Bihar through the Secretary, Education Department, Government of Bihar, and respondent No. 2 is the Secretary of the Board of Secondary Education, Bihar. Cause has been shown by respondent No. 2 through the 'Government Pleader by filing a counter-affidavit sworn in on the 9th of September, 1960 (hereinafter to be referred to as the 'first affidavit'). A reply to that counter-affidavit (hereinafter to be referred to as the 'first reply') was filed on the 15th of September, 1960; and, on the same day, a further affidavit was filed on behalf of respondent No. 2 through the Government Pleader (hereinafter to be referred to as the ('second affidavit'). The case was taken up for hearing on that very date, that is, the 15th of September 1960, when the Government Pleader drew our attention to a report of the Special Board and to a letter, dated the 7th of April, 1945, from the Secretary, Board of Secondary Education, Bihar to the Inspectress of Schools, Bihar. Since they were not on the records of the case, we adjourned the case for enabling the Government Pleader to put them on the records of the case with a proper affidavit. Consequently, those documents were put on record with an affidavit sworn in on the 16th of September, 1960 (hereinafter to be referred to as the 'third affidavit'). The petitioner, thereafter, filed an affidavit in reply (hereinafter to be referred to as the 'second reply'), and the further hearing of the case was concluded thereafter.

(2.) On a perusal of the petition, the different affidavits, counter-affidavits and the replies thereto, the facts of the case, stated briefly, appear to 'be as follows :

(3.) The Samaj is the Patna Branch of the Brahmo Samaj, which is a comparatively small but well-known religious community of persons professing the Brahmo faith. The Brahmo religion is distinct and separate from Hinduism and other religions with a separate church and with doctrines and tenets and rites and practices of its own. The Samaj has a place of worship known as "The Bankipore Brahmo Samaj Mandir", and the affairs and the properties of the Samaj have all along been managed by an Executive Committee elected from time to time by the General Committee, which consists of the entire congregation of the Brahmos at Patna. It is undisputedly a . minority, based on religion, within the meaning of Article 30 of the Constitution of India. In about 1930, the Samaj conceived the idea of starting a Girls' School, and formed a provisional committee for drawing up a scheme at a meeting of the Executive Committee of the Samaj, dated the 22nd of October, 1930. A scheme was drawn up by the said provisional committee, and it was approved at a General Meeting of the Samaj held on the 3oth of November, 1930, and it was resolved that a Girls' School be established to be named as the 'Bankipore Balika Vidyalaya' (hereinafter to be referred to as the 'Vidyalaya') and a Managing Committee was appointed by the Samaj for the year 1931. Accordingly, .the Vidyalaya was established, with subscriptions of the members of the Samaj, in a building situated at Khazanchi Road, and it was opened on the 7th of December, 1930, on the anniversary day of the death of late Prakash Chandra Roy, father of Dr. Bidlian Chandra Roy, the present Chief Minister of West Bengal, At its inception it was a primary School, but, as it grew and prospered, more and more classes were opened until 1944 when the Vidyalaya reached the High School standard, and the same was managed throughout by a Managing Committee chosen from time to time by the Executive Committee of the Samaj. In the year 1944, an application was made . for the affiliation of the Vidyalaya to the Board of Secondary Education as a High School, and a Special Board was appointed by the Board of Secondary Education to make an enquiry,