West Bengal Board of Secondary Education and anr., Vs. Siliguri Hindi High School and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/878154
SubjectConstitution
CourtKolkata High Court
Decided OnNov-13-2003
Case NumberMAT No. 1497 of 1998, CAN No. 3327 of 1999 with MAT Nos. 1538 and 1552 of 1998, CAN No. 3202 of 2003
JudgeDilip Kumar Seth and ;Rajendra Nath Sinha, JJ.
Reported in2004(1)CHN571
ActsConstitution of India - Articles 15(4), 25, 26, 29, 29(1), 29(2), 30, 30(1) and 30(2); ;Evidence Act - Section 114; ;Societies Registration Act
AppellantWest Bengal Board of Secondary Education and anr., ;state of West Bengal and ors. and Kishore Kumar
RespondentSiliguri Hindi High School and ors.
Appellant AdvocateS.B. Bhunia, ;A.K. Roy, ;M. Bhattacharjee, ;Dilip Kumar Samanta, ;Mala Dutta and ;Kollol Basu, Advs.
Respondent AdvocateBikash Ranjan Bhattacharya and ;A. Roy, Advs.
DispositionAppeal dismissed
Cases ReferredDavis v. Sebastian
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d. k. seth, j.1. these three appeals by consent of the parties were taken up together for hearing in view of the fact that these appeals arise out of the one and the same judgment passed by the learned single judge in writ petition no. 2234 (w) of 1998 on 7th april, 1998. the respective appellants had challenged the order appealed against on various grounds founded upon the same set of facts involving identical question of jaw.1.1. the principal question that arises for our determination is as to whether the respondent siliguri hindi high school is a minority institution within the meaning of and protection guaranteed under article 30 of the constitution of india.facts :2. the siliguri hindi high school was established as an anglo hindi english medium school in 1935 by the hindi speaking.....
Judgment:

D. K. Seth, J.

1. These three appeals by consent of the parties were taken up together for hearing in view of the fact that these appeals arise out of the one and the same judgment passed by the learned Single Judge in Writ Petition No. 2234 (W) of 1998 on 7th April, 1998. The respective appellants had challenged the order appealed against on various grounds founded upon the same set of facts involving identical question of Jaw.

1.1. The principal question that arises for our determination is as to whether the respondent Siliguri Hindi High School is a minority institution within the meaning of and protection guaranteed under Article 30 of the Constitution of India.

Facts :

2. The Siliguri Hindi High School was established as an Anglo Hindi English Medium School in 1935 by the Hindi speaking Marwari business community of Siliguri after this community had felt in 1934 the need to establish an Anglo Hindi English Medium School. It also appears that local several merchants' association had fostered the school after having felt the necessity of starting a Hindi Medium School for education of the children of the Hindi speaking people. This school is alleged to Have come into existence in 1932. It seems that this school is the beginning or genre of the Siliguri Hindi High School with English as medium of instruction. The property of the school is now comprised of a huge area of land (28 Bighas) acquired by purchase as well as through donations mainly by the people of the Marwari community. However, 5 Bighas of the land appears to have been donated by two Bengalees in 1954 and 1955. The first land was purchased in 1939; then there was a donation in 1940 and purchase in 1954. Until 1966, the school was being managed all along by Marwari community of Siliguri, the community instrumental in the establishment of the school. This fact does not seem to be in dispute.

2.1. A society, namely, Siliguri Hindi High School was set up in 1981 and was registered under the Societies Registration Act. Until 1979 the management of the school was never interfered with. On 26th August, 1961 the Managing Committee was reconstituted strictly according to the Revised School Code. The School Committee wrote to the District Inspector of Schools, Darjeeling (DIOS) on 28th August, 1961 for placing departmental nominee in the Reconstituted Managing Committee. The DIOS regretted its inability on the ground that there was no provision for placing departmental nominee to an unaided school. Ultimately the school started receiving grant in the form of DA since 1966 and in the form of salary deficit from 1980. The school did not claim minority status until 1980. On 17th September, 1981, the society wrote to the Board for special constitution on the basis of the Memorandum of Association and Rules and Regulations of the society so formed. On 24th February, 1982, the society repeated its prayer. It does not seem to appear that any steps were taken with regard to the claim of linguistic minority status by the society or was replied to.

2.2. On the other hand, in 1983, the DIOS took steps under the Management of Recognised Non-Government Institution (Aided and Unaided) Rules, 1969 (1969 Rules) for appointment of Drawing and Disbursing Officer (DDO) for the administration of the school on the ground that there was no valid Managing Committee in terms of the 1969 Rules. But this step could not fructify on account of an interim order granted on 7th December, 1983 by this Court on a writ petition being C.O. No. 12145 (W) of 1983 filed by the school. This civil order was ultimately disposed of on 30th January, 1997 by directing the Board to consider the question of grant of special constitution and take a decision in accordance with law by passing a speaking order within the time stipulated therein or within such time as may be extended by the Board. It had also directed continuance of status quo as was prevailing on the date of the said order viz: 30th January, 1997. Aggrieved by the said order, the Siliguri Hindi High School preferred an appeal being MAT. No. 989 of 1997. On an application being CAN 2559 of 1997, the appeal was disposed of by the Division Bench on 12th November, 1997 holding inter alia that the State Government is the competent authority to consider and determine the status of the school. The Appeal Court had modified the order to that extent viz: by directing the State Government instead of the Board to consider the question of minority status of the school after giving opportunity of hearing to all concerned including the intervenor and the representative of the Board within the time stipulated in the said order. The Appeal Court had further directed that the administration of the school may be continued to be run by the existing society, but its affairs shall be overseen by the DIOS(SE).

2.3. In terms of the said order, the Secretary, Education Department (SE), Government of West Bengal, determined the question in the order dated 29th January, 1998 (Annexure 'D', MAT 1497 of 1998, p. 116). This order was challenged in Writ Petition No. 2234 (W) of 1998 upon which the order appealed against was passed.

Contention on behalf of the appellant-Board : MAT No. 1497 of 1998 :

3. Mr. Bikash Ranjan Bhattacharya, learned Senior Counsel, appearing on behalf of the appellant-Board in MAT No. 1497 of 1998, founded his contention on the ground that the school had never claimed minority status until 1980. A school established in the Thirties of the Twentieth Century never claiming to be a minority school, cannot acquire such status simply because the society formed in 1980 had claimed so. Secondly, he contended that though the Secretary in the impugned order dated 29th January, 1998 had held that the Marwaris in Siliguri are admittedly minorities, yet on facts the school having not been established to preserve the script and culture of the Marwaris, it cannot claim minority status envisaged under Articles 29 and 30 of the Constitution respectively. He thirdly contended that the medium of instruction of the school is English. It was alleged that the Hindi speaking Marwari community had established this school. Hindi being the majority language in India and Hindi not being the mother tongue of the Marwaris, the Marwaris could not claim as a linguistic minority in Siliguri by reason of adoption of Hindi as their language and establish and run a school with English as medium of instruction and then claim minority status. His fourth contention was that in the management of the school some persons other than Marwaris were also involved. A considerable quantum of land was donated by two Bengalees of the locality, eroding the claim of minority status. His fifth contention was that the school followed the Revised School Code in the constitution of its Managing Committee and required the Board for placing departmental nominee in the reconstituted Managing Committee as back as in 1961. Thereafter, it cannot now turn round and claim minority status on the basis of its prayer for grant of special constitution in 1981. His sixth contention was that the school started receiving grant in the form of DA since 1966 and in the form of salary deficit from 1980, and till then there was no existence of the alleged society, Until 1981, no claim for minority status was ever made by the school. A school, which was not a minority school, could not claim to be converted into a one such school at the whims of the society formed long after the school was established. He last contended that there was nothing to show that the school was established and run exclusively by the Marwaris. On the other hand, non-Marwaris had taken part in the management of the school. There is nothing to show that the Marwari script and language was one of the curriculums in the school. There is nothing to show that the Marwari culture, script and language was sought to be conserved and advanced by the establishment of the school. On the other hand, from the affidavit of the school, it is apparent that initially the school was sought to be established in 1932 as a Hindi Medium School and in 1935 as an Anglo Hindi English Medium School. Therefore, there is nothing to indicate its minority character right from the beginning and all through the history of the school.

3.1. He had relied on various decisions and other facts in support of his above contentions referring to Rule 8(3) of the Management of Recognized Non-Government Institution (Aided and Unaided) Rules, 1969 and Articles 29 and 30 of the Constitution of India. We would refer to the respective contentions and the decisions cited by him at appropriate stage.

Contention on behalf of the appellant-State: MAT No. 1538 of 1998 :

4. Mr. Dilip Kumar Samanta, learned Counsel, appearing on behalf of the appellant-State in MAT No. 1538 of 1998 had adopted the submission made by Mr. Bhattacharya and contended that having regard to the facts and circumstances of the case and materials in the form of papers and documents placed before the Secretary, School Education Department (SB) the competent authority had rightly held that the school is not entitled to minority status. According to him, the society was formed in 1981. It did not establish the institution. Therefore, the society cannot administer the school. According to him, proof of establishment is a condition precedent for claiming the right to administer the institution. In support, he referred to the decision in St Stephen's College v. University of Delhi, : AIR1992SC1630 . He contended further that the right under Article 30(1) of the Constitution is a necessary concomitant of the right conferred by Article 29 of the Constitution of India referring to Clause 13.4, page 940 of Constitutional Law of India, H.M. Seerbhai, 3rd Edition, Volume 1. Thus, he supported the order of the Government in declining minority status to the school and prayed for setting aside of the judgment and order appealed against.

Contention of the appellant-intervenor : MAT No. 1552 of 1998 :

5. Mr. A. Roy, learned Counsel for the appellant-intervenor in MAT No. 1552 of 1998 adopted the submissions made by Mr. Bhattacharya and Mr. Samanta and had claimed that the appeal preferred by his client be allowed by setting aside the judgment and order appealed against affirming the order of the Secretary, Education Department.

Contention on behalf of the school:

6. Mr. Bhunia, learned Senior Counsel appearing on behalf of the writ petitioner-respondent Siliguri Hindi High School in all the three appeals supported the judgment and order passed by the learned Single Judge and opposed the contentions raised by the respective learned Counsel for the appellants in all the three appeals. According to him, the Marwaris, admittedly, a linguistic minority viz: speaking Hindi in a Bengalee dominated area, had established the school of their choice in 1935 and continued to administer the same all through without any interruption until 1966. Reconstitution of the Managing Committee under the 1969 Rules would not take away the character or status of minority of the school, particularly, when the Government had never interfered with the administration and specifically refused to place its nominee in the Reconstituted Committee. Grant of aid in the form of DA and deficit salary also would not affect the minority status of the school. The donation of lands by persons not belonging to the minority community will also not change the minority character already in the school. There is nothing in law that prevents a minority school from receiving donation or aid from persons outside its community. In any event, these lands were donated to the school in 1954 and 1955 respectively. Whereas the school was established in 1935 and its land was first purchased in 1939 and then a donation was given by a member of the minority community in 1940 and then there was again purchase of land in 1954 after which the donations from two Bengalees were accepted. The test, according to him, is whether the institution was brought into existence and administered by the minority linguistic community. According to him, the Memorandum of Association cannot be interpreted to mean that the minority status was waived. The Memorandum of Association incorporated in 1980 cannot relate back to 1934-35 and be construed as an intent to abandon or barter away or surrender or waive the linguistic minority character of the school and the right accrued to the community as a whole, by a few signatories to the Memorandum for the purpose of affiliation. He relied on the decisions in Ahmedabad St. Xavier's College Society and Anr. v. State of Gujarat and Anr., : [1975]1SCR173 ; Ref. on Kerala Education Bill, AIR 1958 SC 956 (para-26); P.P. Deshpande v. Maruti Balaram Haibatti, : [1998]3SCR1079 ; Martin & Harris Ltd. v. VIth Additional District Judge and Ors., : AIR1998SC492 ; Provash Chandra Dalui and Anr. v. Biswanath Banerjee and Anr., : [1989]2SCR401 ; and State of Kerala v. Very Rev. Mother Provincial, : [1971]1SCR734 .

6.1. According to him, it is not necessary that the Marwari script and culture should be included in the curriculum in order to establish the minority status of the school. Admittedly, the Marwaris, speaking in Hindi in a Bengalee dominated area, are linguistic minorities as was rightly held by the Secretary, Education Department (SE) in the impugned order dated 29th January, 1998. Article 30 does not require that a school established by a linguistic minority, in order to attract Article 30, must adopt the language of the minority as medium of instruction. Article 30 grants the right to establish a school of their choice to the minority. It does not restrict its right to impart education in such school in any manner whatsoever. The right to establish school of their choice, extends to the right to establish the school and choose the curriculum of the school. There is no restriction on the choice of the minority in this respect. Therefore, adoption of English as medium of instruction will not stand in the way of claiming minority status of the school. Neither would it affect its minority character. The adoption of Hindi as a language by the minority community in a Bengalee speaking area will not erode the minority status of the community. Then again the language of the Marwaris is 'Muria' a dialect of Hindi language spoken in Rajasthan. The word 'choice' permits this Hindi speaking community to adopt English as the medium of instruction of school and include Hindi as a curriculum in the school of their choice. He referred to the decision in D. A. V. College Jullundhar v. State of Punjab, : AIR1971SC1737 . He contended further that nothing can be added to and subtracted from Article 30. This 'minority' includes people speaking a language different from those of the rest of the dominant population. He refers to T. M. A. Pai Foundation and Ors. v. State of Karnataka and Ors., 2002 (8) SCC 481 (paras-75, 76 and 79). He had distinguished the decisions cited by the respective Counsel for the appellants. He had also made various other submissions, which in our view, would not be necessary for our present purpose.

Reply by Mr. Bhattacharya for Board :

7. Mr. Bhattacharya in reply referred to St. Stephen's College v. University of Delhi, : AIR1992SC1630 , to support his contention that the minority under Article 30 must necessarily mean those who formed a distinct and identifiable group of citizens in India. According to him, the proof of establishment of the school as a linguistic minority institution is a condition precedent for claiming linguistic minority status within the meaning of Article 30. The declaration of the school as a linguistic minority institution by the Government is only an open acceptance of a legal character, which should necessarily have existed antecedent to such declaration. There must exist some positive indication to enable the educational institution for being identified with the linguistic minorities. It must be established for the preservation of any culture or literature of the linguistic minority. These ingredients do not seem to be satisfied in the present case as the facts reveal. To support his above contention, he relied on Shiva Nand Pandey v. Bhagwan Das Harlalka and Ors., 1999 (2) CHN 414; N. Ammad v. Manager, Emjay High School and Ors., : AIR1999SC50 ; and A.P. Christians Medical Educational Society v. Government of Andhra Pradesh and Anr., : [1986]2SCR749 . He also cited an unreported decision of the Division Bench of this Court in Matter 706 of 1979, Appeal No. 482 of 1987, West Bengal Board of Secondary Education and Ors. v. Gyan Bharti and Ors. A society cannot claim linguistic status as was held in Azeez Basha and Anr. v. Union of India, : [1968]1SCR833 . The preservation and maintenance of language, script and culture is an ingredient necessary for claiming minority status. Article 30(1) is a necessary concomitant of the right guaranteed under Article 29 of the Constitution of India. Articles 29 and 30 are independent of each other. But the interplay between Articles 29 and 30 is the basic element for the proof of establishment of a school as linguistic minority institution. In support of this contention, he relied upon Shiva Nand Pandey v. Bhagwan Das Harlalka and Ors., 1999 (2) CHN 414; and T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors., 2002(8) SCC 481. According to him, the finding by the authority is a finding of fact based on materials placed before it, which cannot be interfered with in exercise of writ jurisdiction. To support this contention, he relied upon A.P. Christians Medical Educational Society v. Government of Andhra Pradesh and Anr., : [1986]2SCR749 .

Additional submissions and reply by Mr. Bhunia :

8. Mr. Bhunia had prayed for an opportunity to make additional submissions on the basis of the points raised, in reply by Mr. Bhattacharya and the decisions cited by him to support the same. Leave was granted. Mr. Bhunia had made his submissions repudiating the contention raised by Mr. Bhattacharya, in detail. These are, in fact, repetition of his submission made earlier with reference to the decisions already cited by him. Mr. Bhattacharya, however, had summarized his reply repeating his earlier contentions after Mr. Bhunia had concluded. The respective counsel had also placed their respective written submissions, which were taken on record.

Whether the Marwaris are linguistic minority :

9. 'Lingua' in Latin means tongue. 'Langua' in French means tongue. It also connotes language. The word 'language' in English has been derived langue (tongue) speech. It is a method of expression, spoken or written, a mode of communication, creating images of various things expressed by acoustic variation of the speech produced by the tongue. It is reproduction of particular notation that reflects an image or sign through sounds or writings meant in a particular mode of communication through a kind of language spoken by a particular group of people. Little variation of dialect will not make the language different. We may refer to the Cultural History of India edited by A.L. Basham, pages 166-67, 3rd impression 1985.

9.1. The modern Indo-Aryan languages dates from the period after 1000 A.D., when already the division of regional languages was assuming the shape that is familiar today. The main block of Indo-Aryan stretches as a solid mass across north and central India. In addition there are certain minor and eccentric languages outside the main block. The modern languages of the main block developed very much on parallel lines, since there were no major geographical obstacles inhibiting mutual contact. Eventually, the following literary languages emerged :

south-west : Gujarati and Marathiwest : Sindhi and Panjabinorth-west : Kashmirinorth-east : Nepalieast : Assamese, Bengali, Oriyacentral : Hindi, Western and Eastern, with which we mayenumerate Rajasthan to the west, and Bihar to theeast.

9.2. Linguistic difference was often associated with differences of alphabet, but not always. Inasmuch as, Hindi, Marathi and Sanskrit use Devnagari script of alphabets. Introduction of the Arabic script by the Muslims for certain languages led to the development of two different literary languages, Urdu and Hindi, based originally on the same spoken dialect. Among the modern Indo-Aryan languages, the position of Hindi is of outstanding importance. It has been officially accepted as the national language. Its history is more complicated than that of others. Taking western and eastern Hindi together, along with, their various dialects, Hindi occupies the most central position and also covers a much larger area than any other language. The modern form of literary Hindi was developed very late, in fact, not until the end of eighteenth century. The reason was that earlier writers used other dialects of Hindi (e.g. Braj Bhasha or the eastern Hindi of Tulsi Das), whereas the Khari boli, originally the dialect of the Delhi-Meerut area, on which both Hindi and Urdu was based, was developed in the first place under the influence of the Muslims. The first literary language to emerge from it was Urdu, written in the Arabic script, borrowing an extensive vocabulary from Arabic and Persian. At the same time, in a somewhat simplified form, it gained extensive currency as a non-literally colloquial and this is still very widely used. On the other hand, literary Hindi written in the Devnagari alphabet and drawing for vocabulary on Sanskrit, hardly appears at all until the beginning of the nineteenth century. This Hindi in different dialects is prevalent in the entire stretch of the main block expanded from Bihar in the east and Rajasthan in the west. There seems to be no separate language apart from the respective dialects of Hindi in Rajasthan, which includes Marwar, from where the Marwaris have originated/ migrated to Bengal.

9.3. The Marwaris have a culture different from those of the missionaries. Majority of them were well to do. They could afford to send their children to various missionary schools in Kalimpong or Darjeeling not very far off for getting their children educated through English medium. They could send their children to any Bengali medium school if they were averse to the thought that their children would grow up in an atmosphere adverse to their particular culture. Their apprehension in getting their children educated in English medium school run by the Missionaries could be well justified and well founded, particularly, in the early part of the twentieth century. But they have their own language, which was Hindi, may be a Rajasthanis' dialect, Muria having a distinct script Devnagari. Before Hindi was adopted as a national language after the constitution in States outside the Hindi speaking belt, Hindi was not a normal curriculum in the general schools. In the thirties of the twentieth century, admittedly, Hindi could not be found to be a curriculum in general schools in Bengal. Therefore, endeavour to establish an Anglo-Hindi Middle School or a Hindi High School definitely was aimed at imparting Hindi as a part of educational curriculum for preserving their language and the script and the culture.

9.4. Mr. Bhattacharya had disowned the right of the society to claim minority status on behalf of the school. Though at one point of time, he had pointed to the Memorandum of Association of the society to draw the Court's attention that the said Memorandum did not speak anything about the preservation of script, language and culture of the particular community. He had also pointed out that the Marwaris could not claim Hindi as their language. But, at the same time, he could not point out that the Marwaris have a different script or language other than 'Muria'. The entire northern belt of India right from Bihar, Uttar Pradesh and Madhya Pradesh extending to Rajasthan in the west is Hindi-speaking belt. The Rajasthanis use the same Devnagari script. The language spoken in Rajasthan is also an extended or modified form of Hindi. The language 'Muria' is one of the dialects of Hindi language. One language may have several dialects spoken in different parts of the land over which the language spread or used by the people as medium of expression. A language differs in dialect almost over 100 miles of area apart. The dialectical changes of the language spoken by people spread over a wide area do not confer the status of a different language to a different dialect. It is the same language though dialectically spoken differently. That apart, despite speaking different dialect of the same language, the people follow same official language, which is used in official purpose or as a language of literature. Thus Hindi speaking Marwaris are definitely a linguistic minority in an area dominated by Bengali speaking population. Therefore, the finding of the Secretary, Department of Education (SE) in the impugned order dated 29th January, 1998 that the Marwaris are linguistic minorities in Siliguri, is correct and justified.

Scope of Article 30 : Establish and administer :

10. Article 29 protects the right of citizens having a distinct language, script or culture of its own to conserve the same. Whereas Clause (2) prohibits denial of admission into any educational institution receiving aid out of State funds on grounds of religion, race, caste, language or any of them. The two clauses in Article 29, if read together, implies that Clause (1) permitting conservation of language, script and culture of citizens conceives of establishment of educational institution for conserving their language, script and culture in which, if aid out of State funds is provided, admission cannot be denied on the ground of religion, race, caste, language or any of them. Article 29 does not speak of religious minority, but speaks of language, script or culture i.e., linguistic minority. By reason of religion, a particular community may have its own particular culture or may follow a particular language or script, which they are entitled to conserve. The concept of Article 29 percolates to Article 30. Article 29 entitles minority community to conserve its language, script and culture, whereas the religious right flows from Articles 25 and 26. But, however, Articles 29 and 30 are independent of those rights provided under Articles 25 and 26 and are completely distinct therefrom. Articles 29 and 30 confer four distinct rights [St. Xavier's College v. State of Gujarat, : [1975]1SCR173 1. These are rights (i) to conserve language, script and culture [Article 29], (ii) to establish and administer educational institutions of their choice [Article 30], (iii) not to be discriminated against in the matter of State aid [Article 30] and (iv) not to be denied admission into State maintained or State aided educational institutions on the ground of religion, race, castes or language [Article 29]. Article 29, however, is subject to Article 15(4), curbing out an exception. Though Article 30 may be concomitant to Article 29, yet one does not overlap the other, nor Article 29 is implicit in Article 30, The two rights conferred in Articles 29 and 30 are distinct, separate and independent of each other.

10.1. The width of Article 30 cannot be cut down by introducing in it considerations on which Article 29 is based. Article 29 is a general protection given to any Section of citizens having a distinct language, script and culture of their own to conserve the same. Whereas Article 30 gives a special right to minorities to establish educational institutions of their choice. This choice is not limited to the institution seeking to conserve language, script or culture and the choice is not taken away if the minority community having established an educational institution of its choice, admits members of other communities. No limitation is expressed in Article 30(1) and none can be implied. The two Articles create two separate rights although it is possible they may meet in a given case (Rev. Father W. Proost v. State of Bihar, AIR 1969 SC 465).

10.2. Article 30(1) contemplates two rights, which are separated in point of time. The right is the initial right to establish institutions of minorities' choice. It is irrelevant that in addition to the minority community others from other community or even from major community can take advantage of these institutions. The next part of the right relates to the administration of such institutions, which means management of the affairs of the institutions. This management must be free of control so that the founders or their nominees can mould the institution as they think fit and in accordance with their ideals i.e., how the interest of the community in general and the institution in particular will be best served (State of Kerala v. Very Rev. Mother Provincial, 0065/1970 : [1971]1SCR734 ).

10.3. The word 'establish' in the context means to bring into existence an educational institution [Azeez (supra)]. The word 'administer' means the right to manage and conduct the affairs of the institution (State of Kerala v. Mother Provincial, 0065/1970 : [1971]1SCR734 ; [StXavier's College (para-74) (supra)]. The right to administer may be said to consist of the following rights to (a) choose its managing or governing body; (b) to choose its teachers; (c) not to be compelled to refuse admission to students; (d) to use its properties and assets for the benefit of the institution; (e) to select its own medium of instruction [Azeez (supra); D.A.V. College (II) (supra)].

10.4. It should be borne in mind that the words 'establish' and 'administer' used in Article 30(1) are to be read conjunctively. The right claimed by a minority community to administer the educational institutions depends upon the proof of establishment of the institution. The proof of establishment of the institution is thus a condition precedent for claiming the right to administer the institution. Prior to the commencement of the Constitution of India, there was no settled concept of Indian citizenship. The Apex Court, however, did reiterate that the minority competent to claim the protection of Article 30(1) and on that account the privilege of establishing and maintaining educational institution of its choice, must be a minority of persons residing in India. They must have formed a well-defined religious or linguistic minority.

10.5. Article 30, Clause (1) implies right to a minority community to impart education to the children of its own community in institutions run by it. (State of Bombay v. Education Society, : [1955]1SCR568 ). Article 30 confers two rights : (a) right to establish an institution, and (b) right to administer it (Ref, on Kerala Education Bill, AIR 1958 SC 956; Rev. Father v. State of Bihar, : [1969]2SCR73 .

10.6. In order to claim the benefit of Article 30(1), the community must show (a) that it is a religious or linguistic minority [D.A, V. College v. State of Punjab (I), : AIR1971SC1731 ] and (b) that the institution was established by it (Azeez Basha v. Union of India, : [1968]1SCR833 ). Without satisfying these two conditions, it cannot claim the guaranteed right to administer it [Azeez (supra); D.A.V. College v. State of Punjab (II), : AIR1971SC1737 ]. If these two conditions are satisfied, the right extends to the institutions established prior to the Constitution as well as to those established after the commencement [Kerala Education Bill (supra)]. If the educational institution has not been established by a minority, later it cannot claim the right to administer it even though by some process it had been administering the institution before the Constitution [Azeez (supra)]. The words 'established' and 'administered' have to be read conjunctively and if both conditions are not present, this test would not be satisfied [Azeez (supra)]. But, at the same time, for claiming the benefit of Article 30(1), it is not necessary that the institution must seek to conserve the language, script or culture of the minority community; what is necessary is its establishment by the minority community, it may impart either religious or secular or both education wholly unconnected with language, script or culture [Rev. Father (supra); St Xavier's College (para-6) (Nine Judge) (supra)].

10.7. In A.P. Christians Medical Educational Society v. Government of Andhra Pradesh and Anr., : [1986]2SCR749 , the Apex Court had occasion to observe that a Court has undoubtedly a right to pierce the minority veil. Article 30(1), which was never object of Article 30 to allow bogies to be raised by pretenders but to give minorities a sense of security and a feeling of confidence not merely by guaranteeing the right to conserve their language, script and culture of the linguistic minorities but also to enable all minorities, religious or linguistic, to establish and administer educational institutions of their own choice. These institutions must be educational institutions of the minorities in truth and reality and not a mere masked phantoms. The institution may be intended to give the children of the minorities the best general and professional education to make them complete men and women of the country and to enable them to go out in the world fully prepared and equipped. They may be institutions where the parents of the children of the minority may expect that education in accordance with the basic terms of their culture would be imparted by or under the guidance of teachers learned and steeped in the faith. They may be institutions where the parents expect their children to grow in a pervasive atmosphere which is in harmony with their culture or conducive to the pursuit of it. What is important and what is imperative is that there must exists some real positive index to the institutions to be identified as educational institutions of the minorities.

Of their own choice :

11. The key to understand the meaning of Clause (1) is the expression 'of their own choice' and the content of the clause is as wide as choice of the particular community may make it [Kerala Education Bill (supra)]. This right will follow as soon as it is shown that the institution was established by a minority community [Azeez (supra)]. In order to claim the right conferred by the clause, it is not necessary that the curriculum of the institution must be confined to the teaching of religion only or of the language of the minority community only. There is no limitation on the subject to be taught in such institution and they are not debarred from giving general education as well in such institution [Kerala Education Bill (supra)]. Neither it is a condition that the majority people belonging to the institution must belong to the minority community [Rev. Father (supra)]; nor it is necessary that the institution should be established for the benefit of the particular minority community [Kerala Education Bill (supra)].

11.1. The rights in Article 30(1) are of wider amplitude. The width of Article 30(1) cannot be cut down by consideration on which Article 29 is based. The words 'of their choice' in Article 30(1) leaves the vast options to the minorities in selecting the type of educational institutions which they wish to establish. They can establish institutions to conserve their distinct language, script or culture or for imparting general secular education or for both purposes [St. Stephen's College v. University of Delhi, : AIR1992SC1630 ; Rev. Father (supra); St. Xavier's College (supra); Kerala Education Bill (supra)].

Minority : What is :

12. The word 'minority' is not defined in the Constitution. It should refer to any community numerically less than 50 per cent of the population of the State even though it may not constitute a minority in relation to the whole of India [D.A. V. College (II), (paras-6, 9, 10 and 11) (supra)]. The minority referred to in Article 30 must be a minority based either on religion or on language [St. Xavier's College (para-74) (supra)]. A community may constitute a minority based on language even though they may not have a separate script; it would be enough if they have a separate spoken language [D.A. V. College (II) (supra)].

12.1. The right to establish and administer as expressed in Article 30 is to be interpreted in harmony with the substance of the right conferred by the Article. While Article 29 gives a cultural or linguistic minority community the right to conserve its language, script or culture. Article 30 confers on religious or linguistic minorities the right to establish educational institution of their own choice. But the scope and object of Article 30(1) is wider than mere conservation of the culture, script, etc. This is so indicated by the use of the word 'choice'. The right is to establish institutions, which will effectively serve the needs of the community and the scholars who resort to such institutions. The right would be nugatory if the scholars of such institutions are debarred from the opportunities for higher education or for a useful career in life [Kerala Education Bill (supra)].

Whether the school was established and administered by the minority community :

13. Now it is to be examined as to whether the school was established by the minority community. The facts are not much in dispute. We are to apply the legal tests as has been laid down by the Apex Court, as discussed above, in the facts and circumstances of the case. The position in law is well settled. We have already seen that the Marwari community in Siliguri is a minority community as was rightly held by the Secretary, Education Department (SE) in the impugned order dated 29th January, 1998. Mr. Bhattacharya had disputed that the school was established by the minority community. The facts as recorded by the Secretary, Education Department in the order dated 29th January, 1998 are not in dispute. It appears that the school was alleged to have been established in 1932 by the merchants' association. It is also alleged that the school was established in 1935 by the Marwari community in Siliguri. Originally it was Siliguri Hindi-English Middle School. The School Committee purchased land for the school in 1939. In 1940, one Bhagabati Lal Agarwalla gifted land for the Anglo Hindi Middle English School to be established at Siliguri. In 1954, some land was purchased for Siliguri Hindi High School. The relevant facts have since been disclosed in the earlier writ petition with regard to the establishment of the school. The Marwari community, a linguistic minority speaking Hindi established the school with the name 'Hindi School', though the medium of instruction was English, indicates establishment of a school for the community. It appears that the initial fund came from that particular community. There is nothing to suggest to the contrary. Subsequent gift by two persons from outside the community will not change the character. A minority institution is not prevented from accepting donations or assistance from the members outside the community. It is the question of establishment by minority community, which is relevant. There is nothing to show that it was established by people other than the Hindi speaking community at Siliguri. The establishment of the school in 1935 by the people speaking Hindi, forming a minority community, goes to show that the school was established by the minority community. Subsequent acceptance of gift of land from members outside community will not change the character of the school so established by the minority community.

13.1. The Memorandum of Association of the society registered subsequently will also not take away the minority character of the school. Once a school is established by the minority community, the same cannot be waived or abandoned. Neither a school not established by minority community can claim minority status by reason of subsequent formation of a society claiming minority status. At the same time, Mr. Bhattacharya had disputed the right of a society for claiming minority status for the school. Therefore, we may not give much importance to the Memorandum of Association of the society. The Committee of Management that administered in the school showed that until 1966 all along it were drawn from the people of the Marwari community in Siliguri. Thus, from the facts, it appears that there is nothing to dispute the claim of the respondent that the school was established by the minority community and was being so administered. Inasmuch as it remained an unaided school until 1966. The DIOS declined to place a nominee in the Managing Committee. Until 1980, there was no dispute with regard to the administration of the school. It further appears that the members of the Marwari community or Hindi-speaking people of Siliguri had been taking interest and actively participated in the administration of the school. No material has been placed before the Secretary, Education Department (SE) or before us to show that members outside the community had participated in the administration of the school. Accordingly, we hold that the school was being administered by the minority community.

Minorities : Hindi: Whether the refusal is justified? :

14. Admittedly, Hindi was not the national language until the Constitution. Admittedly, before independence in undivided Bengal, people speaking Hindi were linguistic minority. And a school established prior to the Constitution and administered by Hindi speaking people in Bengal would definitely satisfy the test of establishment and administration of the school by minorities. Even after the Constitution until 1966 the School continued as such. The claim for special constitution, though made late in 1980, through the society will not affect the minority status of the school. The ground of special constitution is only a recognition or acceptance of the status of the school already established. By grant of special constitution, the character or status is neither changed nor added to the school. It is only an acceptance or recognition of the existing status and character of the school. If a school, which is otherwise a minority school, would continue to be so whether the Government declares it as such or not. Declaration by the Government is at best only a recognition of the existing fact, When the Government declares a school as a minority school, it recognizes a factual position that the school was established and is being administered by a minority community. The declaration is only an open acceptance of a legal character, which should necessarily have existed independent of such declaration [N. Ammad v. Manager, Emjay High School and Ors., 1998 (6) SCC 6741.

14.1. The reasons for refusal of minority status given in the impugned order do not seem to be justified. The first reason was that there was no definite proof that the school was established by the Marwari community and that non-Marwari people took part to establish the said school. The absence of definite proof will not justify holding otherwise. On the other hand, the fact refers that it was established by a group of people speaking Hindi and the medium of instruction though was English but the school was named as a Hindi School which itself goes to show establishment of a school for the linguistic minorities. Inasmuch as in those days, admittedly, Hindi was not included in the curriculum of schools in Bengal. The subsequent donation of land will not, as already observed, change the character already existing. It is the establishment, which is material not the subsequent donation from outside and aid from the State.

14.2. The second ground was that non-Marwaris had participated in the administration of the school and that the Committee was reconstituted according to the 1969 Rules and that the school had never claimed to be a linguistic minority school. So far as the last part is concerned, until the management is interfered with, there is nothing for the school to claim minority status. Therefore, omission to claim minority status earlier will not debar the school from claiming minority status, if it had been established and was being administered by the minority community. The fact that the Committee was reconstituted under the 1969 Rules will also not stand in the way if the school was already established by the minority and was being administered by the minority community. The choice contemplated in Article 30(1) is a free choice. The minority community is free to adapt the rules for reconstitution of the Committee guided by 1969 Rules. The acceptance of guidance of 1969 Rules for reconstitution of the Committee will not destroy the minority status or character of the school. If a particular community in oblivion of its right takes certain steps, the same would not take away or destroy its established character. The right conferred under Article 30(1) is unqualified. But that does not mean that the right under Article 30(1) is an absolute one or above other provisions of the law. There is no reason why regulations or conditions concerning the welfare of students and teachers generally should not be made applicable. The adoption of 1969 Regulation would, therefore, is not inconsistent with the right, if the minority community entitled to administer the institution intends to follow the 1969 Rules. This adoption of 1969 Rules will not affect the minority character of the institution, particularly, when it is being done by a group of members managing the Committee, which has no right to barter away the right of the community otherwise guaranteed to the community but not to its individual members [T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors., : AIR2003SC355 ]. The status of established character of the school can never be bartered with or waived [Ahmedabad St. Xavier's College Society and Anr. v. State of Gujarat and Anr., : [1975]1SCR173 ].

14.3. A right personal to a person can be waived, but a right fundamental to a group of citizens or a community cannot be waived by a few of them, though engaged in the management of the institution on their behalf. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a known right or such conduct as warrants the inference of the relinquishment of such right. It means forsaking the assertion of a right at the proper opportunity (Provash Chandra Dalui and Anr. v. Biswanath Banerjee and Anr., : [1989]2SCR401 ), It is now trite that the principle of estoppel has no application when statutory rights or liabilities are involved. It cannot impede right of an appeal, particularly, the Constitutional remedy [P.R. Deshpande v. Maruti Balaram Haibatti, : [1998]3SCR1079 ]. Waiver is distinct from estoppel. In waiver the essential element is actual intent to abandon or surrender the right; while in estoppel such intent is immaterial. An estoppel may result though the party estopped did not intend to loose any existing right. Thus, voluntary choice is the essence of waiver for which there must exist an opportunity for a choice between the relinquishment and the conferment of the right in question [Provash Chandra Dalui (supra)].

14.4. It appears that affidavits of people aged about 77 to 92 years showing that the institution was brought into existence by the linguistic minority community and that the school was established by Hindi speaking Marwari community to educate their children, as pleaded in page 102 of the writ petition, has not been traversed or countered by other evidence. Therefore, the learned Single Judge wag right in relying upon the principle of non-traverse as propounded in Allahabad Bank and Ors. v. All India Allahabad Bank Officers' Association and Ors., 1995 (1) CLJ 335 at p. 343 (paras-19-20) and Controller of Court of Ward, Kolhapur and Anr. v. G.N. Ghorpade and Ors., : AIR1973SC627 . Therefore, the learned Single Judge, was right in drawing inference on the principles of Section 114 of the Evidence Act from facts remaining unchallenged, as was held in R. Puthunainar Alhithan v. P.H. Pandian and Ors., : [1996]3SCR932 ; Karnal Singh Uttam Singh v. State of Maharashtra, : 1976CriLJ842 . The minority character of the institution cannot be interfered with or destroyed because Government aid is made available to the institution [T.M.A. Pai Foundation (supra) (para-79); In Re: Kerala Education Bill (supra)].

14.5. Thus, we do not find that the Secretary, Education Department could rightly pass the order on the basis of the materials available before him. It appears that he had proceeded on surmises and conjectures in the absence of any materials to support anything contrary to the establishment and administration of the school by the minority community. The finding that one Mr. Bains was elected President of the reconstituted Managing Committee is not indicative that the school was not a school administered by linguistic minority. Admittedly, Mr. Bains was not a Bengalee. Even if it is assumed that he does not belong to the Marwari community, still then there is nothing to show that he is not a Hindi-speaking gentleman. If people belonging to different community speaking same language joins in the administration of a school serving common purpose at one or other instance, the same would not erode the minority status of the school or take away the character already established. One single or sporadic action or interference will not affect the minority status or character of the school.

14.6. It is well-settled principle of interpretation that words in a statute shall be given their natural ordinary meaning; nothing should be added to them nor should any word be treated as otiose if the expression appears to be of wide amplitude and there is nothing in the provision which restricts import of the expression. The Court has to find out the intention of the legislature without the restriction, which the Court might think of putting in it. The Court cannot impose any restriction when the legislature had left the expression without the restriction [Davis v. Sebastian, 1996(6) SCC 604 (para-8)]. Conversely, if on facts, there appears nothing to show that the management of the institution was administered in a manner other than the intendment of the founder contrary to the interest of the community in a manner affecting the interest of the minority, the inclusion of a person other than from its own community would not jeopardize minority character of the institution. That apart, Mr. Bains being a Hindi speaking person, having a culture not much different than that of Rajasthan and when the State from which he hails is bordering Rajasthan, particularly, when there is nothing to establish that Mr. Bains's culture did not conform to the culture which the minority community wanted to conserve. The authority cannot discover something and simply because of Mr. Bain's inclusion in the Committee of Management could not destroy the minority character of the institution.

Conclusion :

15. In these circumstances, we have reasons to hold on the basis of the materials placed before us that the school was established by a minority community and was being so administered all along. Assuming that some members outside the community had contributed for the property of the school, it cannot be presumed that the school was not established by a minority community. The participation of a member outside the community professing similar culture in the administration of the school sporadically will not affect the character of the school, particularly, when such person also speaks Hindi when it is linguistically based.

15.1. For the reasons aforesaid, we affirm the order appealed against and dismiss the appeal. The order dated 29th January, 1998 passed by the Secretary, Education Department (SE) is hereby set aside. The Secretary, Education Department is hereby directed to grant special constitution to the school within a period of six months from the date of communication of this order. It will be open to the school to reconstitute its Managing Committee, if not already reconstituted, within a period of six months and the particulars of the Committee of Management or reconstituted Committee of the Management, as the case may be, be furnished to the DIOS as well as to the Secretary, Education Department and the Board. With the grant of the special constitution, the administration of the school shall be handed over to such committee intimated to the Board and the DIOS in terms of this order. The committee entrusted upon with the administration of the school shall hold fresh election after grant of special constitution. Such re-constitution of the committee under the special constitution shall be intimated to the DIOS and to the Board as well as the Secretary, Education Department (SE) within a month from its reconstitution and shall take over the management and the administration of the school. The committee that would take over the administration of the school shall be free to deal with the affairs of the school as it deem fit and proper including any arrangement that might have been made by the administrator in the meantime. All arrangements made by the administrator shall be subject to the decision of the Managing Committee in terms of this order and shall not be binding upon such Managing Committee. The Managing Committee would be free to reverse any decision of the administrator if so required and if they are so advised in the interest of the school. With the grant of special constitution, the administrator shall be removed by the Board and the management shall be handed over to the committee then existing.

Order :

16. In the result, all these three appeals fail and are hereby dismissed subject to the orders and observations passed and made above.

17. There will, however, be no order as to costs.

18. Urgent xerox certified copy, if applied for, be supplied to the parties within seven days from the date of application.

R.N. Sinha, J.

17. I agree.