Choudhary, J.

(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, 195

6. 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, 19

30. 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,

(4) In the meantime, the Samaj adopted a constitution for the Vidyalaya by a resolution dated the Toth of September, 194

4. A copy of the constitution is annexure D to the petition, and its provisions, as are relevant for the purposes ol the present case, are these :

"(1) The Balika Vidyalaya at Bankipore was founded on the 7th December, 1930, by the Bankipore Brahmo Samaj

. (2) The B. B. S. is a religious institution doing also educational, social and philanthropic work. The Balika Vidyalaya is an institution affiliated to the B. B. S. * * * (4) Subject to clauses 5 to 14 below, the entire management of the Vidyalaya, including the appointment, dismissal and salaries of assistant teachers and other employees, full control over its income and expenditure, and the exercise of all such powers as are ordinarily required by Managing Committees of schools, shall be in the hands of a Managing Committee consisting of not less than 7 and not more than 11 members to be appointed annually by the Executive Committee of the B. B. S. (5) The Managing Committee shall always include the Headmistress (ex-officio) an3 a representative of the staff (other than the Headmistress) to be elected by the teachers. (6) The appointment of the Managing Committee of the Balika Vidyalaya, of its President, Secretary and if necessary of a Treasurer, shall be made annually by the Executive Committee of the B. B. S. The appointment of other office-bearers shall be made by the Managing Committee, subject to the approval of the above Executive Committee. (7) The appointment of the Headmistress shall be in the hands of the Executive Committee of the B. B. S., subject to the approval of the Education Department of the Government. (8) The above Executive Committee shall stand in the position of Trustees to the Balika Vidyalaya. All properties received or acquired for and on behalf of the Vidyalaya shall be vested in the above Executive Committee. (9) The buildings and premises of the Vidyalaya may be utilised by the Managing Committee for other, than educational purposes only with the sanction of the above Executive Committee. Worship of idols and images shall, however, in no circumstances be permitted in the buildings or premises of the Balika Vidyalaya. * * . * (11) Details relating to school discipline and teaching, such as arrangement of classes, preparing the time table, selection of the candidates for the Matriculation Examination etc. shall be in charge of the Headmistress: acting under the guidance of the University and the Education Department. * * * (13) The Managing Committee shall be ap pointed for one year, viz., from the 1st April of one year to the 31st March of the next year. But it shall continue in office until the next Managing Committee has actually taken over charge. (14) Vacancies occurring in the Managing Committee during the year shall be filled up by the remaining members, subject to confirmation by the Executive Committee of the B. B. S. * * * (18) In all other matters the rules framed by the Government of Bihar for Managing Committees of aided schools in respect of quorum, notice, frequency of meetings, and the general, conduct of business shall be followed."

A copy of the above constitution was submitted to the Director of Public Instruction, Bihar, through the Inspectress of Schools, Bihar, along with a letter dated the 21st of March, 1945, a copy of which is annexure E to the petition. The Special Board, referred to above, inspected the Vidyalaya, and, after considering the constitution of the Vidyalaya, as well as other matters, submitted its report, a copy of which is annexure 4 to the third affidavit. In its report, it observed that the Vidyalaya in its initial stages was started and helped by the members of the Samaj, and, though individual members of the Samaj had been helpful in raising subscription, no financial help had at any time been given out of the Samaj funds. It disapproved the constitution of the Managing Committee of the Vidyalaya, and observed that the same should be constituted and should carry on its business in the manner laid down in the Education Code. It recommended for permission to the Vidyalaya to open class XI from January, 1945, subject to six conditions, namely,

"(i). Four more teachers should be appointed of whom at least one should be a graduate with Principal Bengali. (2). In order to teach through the medium of Hindusthani the teachers should qualify themselves by passing the matriculation examination in Hindi or Urdu. (3) The managing committee should be made representative by including at least 3 Biharis of whom one should be a moslem. (4) The managing committee should function in the manner prescribed in the Code. (5) Books worth Rs. 300/- be purchased. (6) Efforts should be made to raise subscription to meet the anticipated deficit."

Accordingly, the Board of Secondary Education, at its meeting held on the 27th of March, 1945 resolved that recognition of class XI would be granted to the Vidyalaya from the 1st of January, 1945 on those six conditions, and a letter, dated the 7th of April, 1945, a copy of which is annexure 5 to the third affidavit, was sent, by the Secretary of the Board of Secondary Education, Bihar to the Inspectress of Schools, Bihar, and a copy of the same was forwarded to the Secretary of the Vidyalaya for information and necessary action. The Managing Committee of the Vidyalaya, thereafter, by a resolution at a meeting held on the 22nd of April, 1945, agreed to the conditions referred to above, and a letter, dated the 27th of April, 1945, a copy of which is annexure to the first affidavit, was sent by the Secretary of the Vidyalaya to the inspectress of Schools, Bihar for information. The Vidyalaya was given recognition thereafter to open class XI, and it obtained grant from the Government from the year 194

5. It is stated on behalf of the petitioner that since then the affairs of the Vidyalaya were managed by the Managing Committee as controlled by the Samaj.

(5) It appears that by a resolution, dated the 28th of September, 1954, the State Government in the Education Department purported to lay down a constitution for private High Schools, whereby the Managing Committee of a school was to be constituted in accordance with the rules laid down therein on the principle of representation of certain classes, e.g., donors, subscribers, guardians, etc., with stringent control by the Director of Public Instruction in the matter of appointment and removal of the members of the Committee. A copy of the said resolution is annexure F to the petition. By another resolution, dated the 7th of May, 1956, a copy of which is annexure G to the petition, the State of Bihar in the Education Department framed certain new rules for High Schools run by missionaries and other societies or trusts substantially on the same terms as were contained in the previous resolution, dated the 28th of September, 195

4. Since after the above resolutions, it is stated on behalf of the petitioner, the Education Department, through the Inspectress of Schools and the District Inspectress of. Schools, began interfering with the constitution of the Managing Committee of the Vidyalaya and passed orders from time to time demanding re-constitution of the Managing Committee in accordance with the aforesaid Government resolurtions. Representations made in this regard by the Managing Committee of the Vidyalaya, Copies of which are annexures H and H (1) to the petition proved fruitless. In the meantime, the Samaj, on the 18th of March, 1958, reconstituted the Managing Committee of the Vidyalaya for the year 1958-59 by a resolution, a copy of which is annexure I to the petition, and then again, on the 7th of April, 1959, appointed another Managing Committee of the Vidyalaya for the year 1959-60 by a resolution, a copy of which is annexure J to the petition. Then again, on the 27th of March, 1960 and the 6th of April, 1960, the Samaj, by resolutions, copies of which are annexures K and K (1) to the petition, reconstituted the Managing Committee for the year 1960-

61. On the 11th of April, 1960, the Board of Secondary Education, by an order contained in its letter No. 7863-64, addressed to the Inspectress of Schools, Bihar, a copy of which was forwarded to the petitioner as Joint Secretary of the Samaj, directed that, pending the reconstitution of the Managing Committee in accordance with the Government resolutions, referred to above, the existing committee shall continue to function, and asserted that the Samaj had no authority to constitute the Managing Committee of the Vidyalaya. A copy of the said order is annexure L to the petition, and it is this order which has given rise to the present application.

(6) The first question raised in the case is, whether the Vidyalaya was established by the Samaj and it administered the same through a Managing Committee appointed and controlled by it in accordance with the constitution of the Vidyalaya, referred to above. The contention of the petitioner is that it was the Samaj which established the Vidyalaya and framed the constitution thereof, and that the Managing Committee, which administered the Vidvalaya, had all along been appointed and controlled by the Samaj. On behalf of the respondent, however, the above contention is not accepted, and it is not admitted that the Vidyalaya was established and administered by the Samaj. It is contended on behalf of the respondent that the Samaj never gave financial help to the Vidyalaya out of its funds, and, in support of this, reliance is placed on the audit report, a copy of which is annexure 3 to the second affidavit, in which Sri Girish Chandra Sinha, the Senior Auditor, reported that there was no contribution in cash and kind by the Samaj to the Vidyalaya. On behalf of the petitioner, it has been conceded that no such contribution had been made out oi the funds of the Samaj, but it was contended that the Vidyalaya was established with subscriptions mostly raised by the members of the Samaj and also from other members of the public. It is submitted that the claim of the Samaj that the Vidyalaya was established and administered by it cannot be negatived on the ground that the Samaj did not make any contribution to the Vidyalaya out of its own funds. This argument put forward is that the events starting from the inception of the Vidyalaya till the impugned order was passed clearly show that actually it was established and administered by the Samaj. In my opinion, there are enough materials on record to support the contention raised on behall of the petitioner, and the denial by the respondent of the assertion made on behalf of the petitioner in this regard cannot be given effect to as being unjustified and without any merit.

(7) It is not disputed that the Vidyalaya at its inception, while it was only a primary school, was established by the Samaj. It is also not disputed that the said primary school later on grew and prospered so as to open more and more classes till it reached the standard of a High School. It is also apparent that up to the stage of the Vidyalaya reaching the standard of a High School it was managed by a Managing Committee chosen from time to time by the Executive Com- . mittee of the Samaj. It is also clear that, even after the recognition of the Vidyalaya as a High School, it was managed and controlled by the Samaj through a Managing Com mittee appointed by it. The materials on record, as I, will presently show, amply support the above view,, (After discussing the aspect in Paras 8 to 12, His Lordship concluded). My concluded opinion, therefore, is that the Vidyalaya was established and administered by the Samaj.

(8) It has been contended on behalf of the respondent that the resolutions of the State Government, referred to above, formed part of the Bihar Education Code, and they are, therefore, binding on the Vidyalaya. But undisputedly, the provisions contained in the Bihar Education Code, as held by the Supreme Court, are mere executive instructions and have got no legal force. It was, therefore, that the Bihar High Schools (Control and Regulation of Administration) Act, 1960 (Bihar Act XIII of 1960) was enacted to legalise the above provisions. Sub-section (i) of Section 8 of this Act empowers the State Government to make rules for carrying out the purposes of this Act, subject to the provisions of Articles 29, 30, and 337 of the Constitution of India. Sub-section (2) of that section states that until the State Government makes rules under this section, the provisions contained in the Bihar Education Code, 7th Edition, as amended from time to time, and all resolutions and orders of the State Government or of the Director of Public Instruction Bihar, a collection of which was published in the extraordinary issue of the Bihar Gazette of the 23rd March, 1959 and which are in force on the date of commencement of this Act, shall, in so far as they are not inconsistent with the provisions of this Act and the provisions of the Constitution of India relating to schools established and administered by Anglo-Indians and minorities based on religion or language, be deemed to be the rules made under this Act for the purposes of this Act. It is, therefore, clear that the provisions of the Bihar Education Code apply to Schools which are not established and administered by, Anglo-Indians and minorities based on religion of language. In this case, from the assertions made by the petitioner in his writ application and the absence of denial of the same in the various affidavits filed on behalf of the respondent, it is an undisputed fact that the Samaj is a minority based on religion, and, that being so, is entitled to the protection afforded by Article 30 of the Constitution, This article runs as follows : "(i). 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". It has, therefore, been contended by Mr. Das, on behalf of the petitioner, that the impugned order infringed the right of the Samaj to establish and administer the Vidyalaya guaranteed to it under the above article of the Constitution, and in that view of the matter, the order in question is illegal and ultra vires. In my opinion, the contention is well founded, and must prevail. 1

4. Article 26 of the Constitution affords freedom to manage religious affairs, and states that :

"Subject to public order, morality and health, every religious denomination or any section thereof shall have the right- (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law."

Article 29 protects the interest of the minorities, and provides that 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; and that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. As pointed out by the Supreme Court, In Re, Kerala Education Bill, 1957, 1959 SCR 995 [LQ/SC/1958/83] : (AIR 1958 SC 956 [LQ/SC/1958/83] ), the distinct language, script or culture of a minority community can best be conserved by and through educational institutions, for it is by education that their culture can be inculcated into the impressionable minds of the children of their community. It is through educational institutions that the language and script of the minority community can be preserved, improved and strengthened. It is, therefore, that Article 30 (1) confers on all minorities, whether based on religion or language, the right to establish and administer educational institutions of their choice. Article 30 of the Constitution, as observed in that Supreme Court case, leaves it to the choice of the minority to establish such educational institutions as will serve both purposes, namely, the purpose of conserving their religion, language or culture, and also the purpose of giving a thorough, good general education to their children. Under the above article, it is the fundamental right of the minority to establish and administer educational institutions of their choice, and, in that view of the matter, the Samaj, in the present case, which established and administered the Vidyalaya had the right to administer the same according to its choice, and the respondents could not legally interfere with such administration.

(9) The above view gains support from a Bench decision of this Court in Arya Pratinidhi Sabha v. State of Bihar, ILR 37 Pat 207 : (AIR 1958 Pat 359 [LQ/PatHC/1958/2] ). In that case, the Arya Pratinidhi Sabha had established a Girls School, named Dayanand Kanya Vidyalaya which was managed and administered by persons of the Arya Samaj faith, and the President of the Arya Pratinidhi Sabha was also the President of the Managing Committee of the Kanya Vidyalaya. It was suggested by the Director of Public Instruction that the Managing Committee of this Vidyalaya 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 trusts, a reference to which has already been made in this judgment. The Managing Committee of the Kanya Vidyalaya was, accordingly, reconstituted in the manner suggested by the Director of Public Instruction, and the newly constituted Committee, at a meeting, elected Dr. Dukhan Ram as the President and Sri Murli Manohar Jayaswal as the Secretary of the Committee. Later on, the Director of Public Instruction wrote a letter to Dr. Dukhan Ram that the Arya Samaj could not be represented in the Managing Committee, and, as the present management had persisted in not complying with the orders of the Department, it had been decided to constitute an ad hoc committee consisting of Government nominees only. A letter was also written by the District Inspect-ress of schools to Dr. Dukhan Ram requiring him to hand over the management and charge of the Dayanand Kanya Vidyalaya to the ad hoc Committee. It was held by this Court that the letter of the Director of Public Instruction intimating to Dr. Dukhan Ram that the Arya Samaj could not be represented in the Managing Committee and also the letter of the District Inspectress of Schools requiring Dr. Dukhan Ram to hand over the management and charge of the Dayanand Kanya Vidyalaya to the ad hoc Committee were unconstitutional since there was a violation of the guarantee contained in Articles 29 (1) and 30 of the Constitution. It was pointed out in that case that, though it was open to the State Government to impose regulations with regard to maintenance of discipline or standard of efficiency or 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, and in that respect the constitutional protection under Articles 29 (1) and 30 of the Constitution is not absolute, the action of the Government in imposing the ad hoc Committee and threatening to withdraw grant-in-aid transcended these limitations and Infringed the constitutional protection guaranteed under Articles 29 and 30 of the Constitution.

(10) The above view gains further support from the decision of the Supreme Court in 1959 SCR 995 [LQ/SC/1958/83] : (AIR 1958 SC 956 [LQ/SC/1958/83] ), referred to above. In that case, a reference under Article 143 (1) of the Constitution was made by the President of India for obtaining the opinion of the Supreme Court upon certain questions relating to the constitutional validity of some of the provisions of the Kerala Education Bill, 1957, which had been passed by the Kerala "Legislative Assembly, but was reserved by the Governor for consideration of the President. The second question referred was whether Sub-clause (5) of Clause 3, sub-clause (3) of Clause 8 and Clauses 9 to 13 of the Kerala Education Bill, or any provisions thereof, offended Clause (1) of Article 30 of the Constitution in any particulars or to any extent. In determining that question, Clause 14 of that Bill came up for consideration, which as, conceded by Counsel for the State of Kerala, could annihilate the minor communities right to manage educational institutions of their choice. That Clause provided that the Government, whenever it appears to it that the manager of any aided school has neglected to perform any of the duties imposed by or under the Bill or the rules made thereunder, and that in the public interest it is necessary so to do, may, after giving a reasonable opportunity to the manager of the Educational agency for showing cause against the proposed action, take over the management for a period not exceeding five years, and, in cases of emergency, the Government may take over the management after the publication of notification to that effect in the Gazette without giving any notice to the Educational agency or the manager. Under Sub-clause (8) of that Clause , a provision was made for the Government to acquire the school so taken over if the Government was satisfied that it was necessary so to do in the public interest. It was held by the Supreme Court that the provisions of this Clause as well as of Sub-clause (5) of Clause (3) of the Bill, which makes Clause 14 applicable to aided educational institutions, are totally destructive to the rights of the minorities to establish and administer such institutions of their choice guaranteed to them under Article 30 (1) of the Constitution, and are, therefore, void and unconstitutional.

(11) For the reasons given above, it is manifest that the Vidyalaya was established and administered by the Samaj, which, being a minority, based on religion, has a fundamental right to administer and manage the same as guaranteed to it under Article 30 of the Constitution, and that the resolutions of the State Government, dated the 28th of September, 1954 arid the 7thof May, 1956, referred to above, so far as they infringe the right of the Samaj to administer the Vidyalaya, are unconstitutional, void and inoperative. Consequently, the order contained in letter No 7863-64, dated the nth of April, 1960, of the Board of Secondary Education, which is annexure L to the petition, is illegal and ultra vires, and thus not binding on the Vidyalaya. The petitioner is, therefore, entitled to the grant of a writ in the nature of mandamus commanding the respondents not to give effect to the said order.

(12) I would, accordingly, allow this application with costs. Hearing fee Rs. 100/- only.