Sri Dwarka Nath Tewari and Ors vs State Of Bihar and Ors

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Writ Petition (civil) 105 of 1958

Decision Date: 13 October 1958

Coram: N.H. Bhagwati, B.P. Sinha, K.N. Wanchoo, S.R. Das, K. Subbarao

In the matter of Sri Dwarka Nath Tewari and others versus State of Bihar and others, the Supreme Court of India rendered its judgment on 13 October 1958. The judgment was authored by Justice B. P. Sinha and was delivered before a bench consisting of Chief Justice S. R. Das, Justice N. H. Bhagwati, Justice B. P. Sinha, Justice K. Subbarao and Justice K. N. Wanchoo. The petition was filed under Article 32 of the Constitution and challenged certain orders issued by officers of the Bihar Government’s Education Department in relation to the Parsa High English School. The petition sought an appropriate writ, direction or order that would restrain the respondents from taking possession of the school or interfering in any manner with its internal management. The first petitioner, Shri Dwarka Nath Tewari, who was a Member of the Legislative Assembly, claimed to be the President of the school’s Managing Committee. The second petitioner, Shri Murlidhar Pandey, asserted that he was the Secretary of the Managing Committee. Petitioners numbered three to six identified themselves as members of the Managing Committee, while the seventh and final petitioner was the Parsa High English School itself, represented through its Secretary and Managing Committee. The State of Bihar was named as the first respondent and the Board of Education, Bihar, as the second respondent. Respondents three, four and five were government officers who had been appointed to an ad hoc Committee pending the constitution of the school’s Managing Committee, in accordance with the provisions laid down in the Education Code.

The petition was founded on a series of factual allegations. In 1931, following a unanimous resolution of the local public of Parsa, which is the headquarters of the Thana in the District of Saran, Bihar, a Managing Committee was constituted to raise subscriptions and to manage the proposed High English School at Parsa. The resolution appointed the first petitioner as its Secretary and named other individuals as members of the Committee. The school commenced operations in 1932, financed by subscriptions collected from residents of the villages surrounding the Parsa police station. The first petitioner asserted that he had made a substantial contribution to the school’s fund, remitting several instalments that together amounted to more than Rs 11,000. The day-to-day administration of the school was entrusted to a Managing Committee comprising eleven members, including representatives of the teachers, the then Head Master and representatives of the subscribers. The Committee purchased several plots of land in the name of the Secretary on behalf of the Committee and erected the school building on that land. Accordingly, the Managing Committee claimed ownership of the school as well as of the land and the structures situated thereon. The school was declared open to persons of all castes and creeds, and nominal tuition fees were charged at ten percent of

In that year the school granted free scholarships to a proportion of its pupils amounting to ten per cent of the total enrolment. Two years later, in 1935, the institution obtained formal recognition from the Government of Bihar. In 1950 the government directed the managing committee not to charge any fees to Harijan pupils and to increase the share of free scholarships from ten per cent to fifteen per cent of the total strength of the school. The same direction also required that no fees be levied on children studying in the fourth and fifth standard, which are the primary classes. The government further provided the school with an annual grant that varied between two thousand and three thousand rupees. In 1952 the government made an additional request that the school raise teachers’ salaries and undertook to bear the extra expense that would arise from that increase. Until June 1954 the managing committee of the school contained no government nominees. After June 1954 the Bihar Government Education Code was amended so that the managing committee had to include government nominees, representatives of guardians, representatives of subscribers and representatives of donors. Around the same time the conditions of service of teachers in such schools were altered to permit a teacher who had been punished by the managing committee to appeal to the Education Department. This amendment was effected without any prior consultation with the school authorities, who were not informed of the changed rules. When the then headmaster, Sheo Kumar Mishra Sharma, learned of the new service-condition rules, he began to show disrespect toward the members of the managing committee, neglected his duties and mismanaged the affairs of the school. After several warnings urging him to improve his conduct, the managing committee suspended him towards the end of December 1955 because he failed to comply. The committee framed charges against him, heard his explanation and, after due consideration, found him guilty of the charges and ordered his discharge. On 2 January 1956 the managing committee appointed a new headmaster in his place. The discharged headmaster challenged his removal before the Inspector of Schools for the Tirhut Division. Acting on instructions of the Director of Public Instruction, who also served as President of the Board of Secondary Education, an inquiry was conducted by the Acting Secretary of the Board, who submitted a report, but no further orders were issued on that report. The Director then ordered a fresh joint inquiry to be carried out by the Secretary of the Board together with a Deputy Director of Public Instruction. That joint inquiry heard the President and the Secretary of the school as well as the former headmaster, after which it submitted its own report. Upon reviewing the second report, the Board of Education concluded that the discharge of the former headmaster was not justified and directed that he be reinstated. Accordingly, on 12 December 1957 the Board of Education sent a letter, through the Inspector of Schools, to the school’s secretary ordering that Shri Sheo Kumar Mishra Sharma should resume his duties as headmaster of the High School, Parsa, by 16 December 1957 without fail. The same letter also contained consequential orders regarding his salary during the period of suspension, his increment and his contribution to the provident fund, and it required the speedy re-constitution of the managing committee. The letter concluded by stating that if the school authorities failed to comply with the government orders, an ad-hoc committee would be appointed to take over the management of the school and the existing managing committee would be dissolved.

The Board of Education sent a letter to the school secretary directing that Shri Sheo Kumar Mishra Sharma must resume his duties as Head Master of the High School, Parsa, by 16 December 1957 without fail. The communication also stipulated that his salary, any pending increments, and his contribution to the provident fund should be paid for the period of his suspension. Furthermore, the letter ordered the rapid re-constitution of the school’s Managing Committee. The epistle concluded with a warning that if the school authorities ignored the Government’s directions, an ad hoc committee would be appointed to take over the management of the school and the existing Managing Committee would be dissolved. Acting on the Government’s order, the discharged Head Master appeared at the school to take charge. However, the President of the school informed him that a Managing Committee meeting had been scheduled for 31 December 1957 to consider the aforementioned letter, and consequently the Head Master was not permitted to assume his position. On 22 December 1957, the District Inspector of Schools, Saran, wrote to the Inspector of Schools, Tirahut Division, reporting that the school authorities had failed to implement the Government’s orders contained in the letter and suggested that an ad hoc committee comprising respondents 3 to 5 be formed to manage the school. A copy of this letter was forwarded to the school authorities. On 31 December 1957, the Deputy Inspector of Schools, one of the three officials designated to constitute the ad hoc committee, visited the school and demanded that charge be handed over to him. The school officials responded that the Government’s order was illegal and that the Managing Committee’s decision, which was to be made that very day, would be communicated to the authorities in due course.

The Court noted that it was unnecessary to recount in detail the futile proceedings initiated in the High Court under Article 226 of the Constitution, nor 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. These attempts were made through interlocutory petitions in the suit filed by the second petitioner before the Subordinate Judge of Chapra, the headquarters of District Saran. The High Court upheld the lower court’s refusal to grant such a temporary injunction, issuing its order on 13 May 1958. After the petitioners were unable to secure any relief from those courts, they approached officials of the Government of Bihar to explain their position regarding the school’s management and the legal standing of the Managing Committee. Ultimately, on 31 July 1958, the first petitioner received a letter dated 28 July 1958 from the third respondent.

In response to the High Court’s refusal to grant an injunction against the ad hoc committee, the President of that committee wrote to the first petitioner stating that he intended to assume control of the school on 14 August 1958 and requested that the complete charge of the school be handed over to the committee. Because of that letter, the petitioners approached this Court under Article 32 of the Constitution, alleging that their fundamental right to property might be violated. They feared that, if the requested hand-over did not occur, the school could be seized by force with the assistance of police and local executive authorities. The petitioners therefore sought an ex parte order to restrain the respondents from taking possession of the school and its assets. By an order dated 11 August 1958, this Court granted a temporary ex parte stay pending the hearing of the notice of motion. In reply, the fourth respondent filed an affidavit asserting that the purpose of the proposed action was not to disturb the school’s property but to intervene in its management for the public interest, that the order of 28 July 1953 was issued pursuant to the Bihar Education Code which possessed the force of law, that the petitioners had been unable to secure an injunction or similar order in the pending suit where identical questions arose, and that the government’s intention was merely to reconstitute an efficient management committee rather than to assume control of the school’s property. After hearing both sides, this Court issued an order on 8 September 1958 in the stay matter, declaring the interim order to be absolute until the final disposal of the Article 32 petition, which was scheduled for 23 September 1958, subject to a partial hearing.

Subsequent to that order, numerous affidavits were filed by both parties. The fourth respondent, who holds the position of Deputy Inspector of Schools in Chapra, submitted an affidavit contesting the petitioners’ claims made in their various affidavits. The Court did not find it necessary to recite the respondents’ statements concerning the first petitioner’s role in establishing and operating the school, the proceedings against the Head Master, or the alleged mismanagement by the Managing Committee, many members of which are petitioners, because the merits of those disputes are beyond the scope of this proceeding. The sole issue before this Court is whether the petitioners have demonstrated the existence of any fundamental right that has been infringed or is threatened to be infringed by the respondents or any of them. At the outset, the Court clarified that it intends to limit its discussion to the narrow question of whether a protectable fundamental right exists in the present writ petition, avoiding unnecessary elaboration on matters that lie outside the limited jurisdiction of this writ proceeding.

The Court observed that it had not been furnished with the complete set of facts relating to the case, nor with the specific rules and regulations that govern the constitution, duties and powers of the Managing Committee in relation to the Education Department of the Government. Although the arguments presented by counsel covered a broad spectrum of issues, many of which did not properly arise in the present writ proceeding, the Court limited its consideration to the central issue: whether the petitioners had established the existence of any fundamental right and any actual or threatened infringement of that right that would justify the issuance of a writ under Article 32 of the Constitution. The petitioners’ counsel relied upon the allegations set out in paragraph 4 of the petition, asserting that the petitioners possessed a property right in the school premises, which consisted of land purchased in the name of the Secretary of the Managing Committee. The petition stated that the Managing Committee had acquired several plots of land, that the conveyances were executed in the Secretary’s name on behalf of the Committee, that the Committee subsequently constructed the school building on that land, and that the Committee was the owner of both the school and the land and buildings, thereby entitled to possession. The petition comprised thirty-eight paragraphs, most of which had been addressed in the affidavits filed by the respondents, either by admission, denial, or partial admission. However, the Court noted with surprise that the crucial paragraph 4, quoted above, had not been specifically addressed or denied by the respondents in their affidavits. Since the respondents’ counsel could not identify any affidavit denial of those allegations, the Court treated the statements in paragraph 4 as admitted for the purposes of the present case. Accordingly, the Court concluded that it could be taken as a fact that the Managing Committee purchased the land, erected the school building upon that land, and that the Committee was the proprietor of the building and the land on which it stood. The Court found it difficult to ascertain how the Committee could claim to be the “owner of the School” apart from ownership of the land and the building, and therefore proceeded on the assumption that the petitioners held the land and the building as trustees for the school’s purposes, rather than as beneficial owners in the ordinary sense of property ownership, a claim that the petitioners themselves had not expressly made. On that basis, the petitioners were deemed to be entitled, as trustees, to hold the land and the building of the school. The affidavits also made it clear that the Education Department of the Bihar Government purported to interfere with the petitioners’ status as trustees concerning the land and the building.

In this case the Court examined whether the respondents were able to dispossess the petitioners of their proprietary rights over the land and the building of the school, and whether the respondents had attempted to do so by any procedure recognized by law. The respondents asserted that the Managing Committee had failed to follow the directions issued by the Board of Secondary Education and the Government. On that basis, the respondents claimed that the Board had appointed an ad-hoc Committee to assume management of the school, and that this action was taken by the Government pursuant to the amended Article 182 of the Code. Article 182, titled “withdrawal or withholding of recognition,” provides that recognition may be withdrawn or withheld only for reasons recorded in writing and falling under one of the following categories: (a) the school does not follow the course of study prescribed or approved by the department; (b) the school has committed a willful breach of the transfer rules; (c) the school has not attained or does not attain a reasonable standard of efficiency; (d) the school does not maintain a satisfactory standard of discipline, or employs any teacher who participates in political agitation against the authority of the Government or who attempts to inculcate opinions that may excite political disloyalty, disaffection among pupils, or create hatred between different classes of His Majesty’s subjects; or (e) the authority empowered to grant recognition considers any other reason that appears injurious to the interest of education. The provision includes a note stating that these rules apply to middle and primary schools, including primary Sanskrit and Urdu schools that are not under district-board control, the district committee in the Santal Parganas, and special schools such as Sanskrit schools and madrasas. If recognition is refused to a school under municipal control, a copy of the order must be sent to the municipal chairman. Recognition of schools under the control of district boards or the district committee in the Santal Parganas is governed by the statutory rules framed for those bodies. The Government relied on an amendment set out in Annexure “B”. That amendment stipulated that clause (e) would be renumbered as clause (f) and that the following text would replace the original clause (e): “The Managing Committee of the school is not functioning in a manner conducive to proper maintenance or discipline among the teachers and the public, is not carrying out the directions of the Board, and is not administering the finances of the school properly.” The amendment further provided that a new clause could be inserted after rule (f), stating that 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 arrangements for the management of the school as it considers suitable pending the reconstitution of the Managing Committee.

The Court observed that the provision allowing the withdrawal of approval of the constitution of a managing committee and the making of a suitable arrangement for the management of a school, as set out in the amended rule, did not require any further elaboration on the dispute raised by the petitioners concerning the original Article 182. The petitioners had argued that the rules contained in that article were inapplicable to high English schools such as the one involved in the present case. The Court chose to proceed on the assumption that the amended Article 182 of the Education Code applied to the school in question. Moreover, the Court found it unnecessary to refer in detail to the Division Bench decision of the Patna High Court in Bhim Chandra Mahto v. Deputy Director of Education (Secondary), Bihar (1956 AIR (PAT) 81), because the judgment was based on admissions made either in the pleadings or at the bar, and those admissions sufficed for the purposes of the analysis.

Having adopted that assumption, the Court then examined whether the petitioners, as the managing committee, had been divested of their rights to the land and building of the school by authority of law under Article 31(1) of the Constitution. The Court noted that if the amended Article 182 of the Education Code constituted a valid law within the meaning of Article 13 of the Constitution, the petitioners could not claim any grievance for being deprived of the said properties, because their holding of the premises was not as absolute individual owners but merely as trustees for the school, a status conferred upon them by virtue of their role as managing committee. Consequently, a lawful divestment under the amended Article 182 would render the petition under Article 32 of the Constitution untenable and would necessitate its dismissal. Conversely, if the amended Article 182 were not a law within the meaning of Article 13, the petitioners could not be stripped of their trustee rights by a mere administrative fiat of the Bihar Government. The Court observed that, although the respondents’ affidavits alleged that the provisions of the Bihar Education Code possessed the force of law, the Solicitor-General, appearing for the respondents, conceded that he could not substantiate that claim. The preface to the seventh edition of the Bihar Education Code, published in 1957, contained a statement from the then Director of Public Instruction, Bihar, indicating that the Code was compiled in his office and issued under his authority, and that articles without a reference to a higher authority carried the same weight as circulars and other orders of the Director. From this passage, the Court inferred that Article 182 of the Code possessed no greater sanction than an administrative order or rule and was not based on any statutory or other authority capable of giving it the force of law.

The Court identified one remaining issue for determination: whether the petitioners had established sufficient grounds for the Court to interfere with the orders issued by the respondents and challenged in this proceeding. The petition, in paragraph 34, expressed the petitioners’ apprehension that, if the requested charge was not transferred as stipulated in their letter, possession of the school would be taken by force with the assistance of police and local executive authorities. The Court noted that this fear was not a mere figment of imagination, as evidenced by an endorsement dated 25 December 1957, which corroborated the petitioners’ concern.

It was observed that the Code did not possess any greater authority than an administrative order or rule, and it was not founded upon any statutory or other authority that could give it the force of law. Consequently, the learned Solicitor General, acting with his customary fairness, admitted that the article relied upon by the respondents as having the force of law actually lacked such force and therefore could not be used to deprive the petitioners of their rights in the mentioned properties. The Court then noted that the only remaining issue was whether the petitioners had established any grounds for this Court to interfere with the orders issued by the respondents and challenged in the present proceedings. In paragraph thirty-four of the petition, it was asserted that the petitioners feared that if the requested transfer of charge was not given in the referenced letter, possession of the school would be taken by force with the assistance of the police and local executive authorities. The Court found that this apprehension was not a mere imagination, as demonstrated by an endorsement dated 25 December 1957 attached to the same letter. The endorsement, issued by the Inspector of Schools, Tirahut Division, to the Secretary, Board of Secondary Education, Bihar, reads in full: “From The Inspector of Schools, Tirahut Division. To The Secretary, Board of Secondary Education Bihar, Patna. Muzaffarpur, the 25th December, 1957. Sub: Appeal case of Shri Sheo Kumar Mishra Sharma. Sir, I am to refer you to letter No. 1245 dated the 22nd December 1957 from the District Inspector of Schools, Saran, regarding flouting of the Government orders by the authorities of the Parsa High School. Consequent upon this action of the Committee, it is dissolved and an ad hoc committee consisting of the following persons [formed] to look after the management of the school: 1. Circle Officer, Parsa – President; 2. Deputy Inspector of Schools, Sadar Chapra – Secretary; 3. District Superintendent of Education, Saran – Member. May it be approved. Yours faithfully, Sd./. H. N. Chaudhary, Inspector of Schools, Tirahut Division. Memo. No. 4965 Muzaffarpur, the 25th December, 1957. Copy forwarded to the District Inspector of Schools, Saran, District Superintendent of Education, Saran, Deputy Inspector of Schools, Sadar, Chapra and Circle Officer, Parsa, for information and guidance. They are requested to see that the Government order is implemented. The District Inspector of Schools, Saran will please take the help of local Executive, in case of necessity. Sd./- Illegible. 25. 12 Inspector of Schools, Tirhut Divn.”

The Court concluded that the above endorsement, addressed to the District Inspector of Schools and other officials, demonstrated that those officers were authorized by the Inspector of Schools to seek assistance from local executive authorities if the Managing Committee failed to transfer full charge of the school, which, in this context, encompassed the school buildings as well. Because no legal justification had been presented by the respondents for depriving the petitioners of any rights they might have in those properties, the Court held that the petition must be allowed and that the respondents were prohibited from interfering with the petitioners’ properties except pursuant to a valid authority of law. The Court also ordered that the respondents pay the costs of the petition.

In the final direction, the Court ordered that the relief sought by the petitioners must be granted. The Court further directed that the respondents were to be restrained from any interference with the properties of the petitioners that had been described earlier in the proceedings. Such restraint was to apply unless the respondents acted under a valid legal authority expressly permitting them to intervene. The judgment also imposed a monetary obligation on the respondents, requiring them to pay the costs incurred by the petitioners in bringing forward this petition. The order noted that the certification of the senior counsel confirming the cost award had been attached to the judgment.