Case: Rt. Rev. Bishop S. K. Patro &amp; Ors Vs. State Of Bihar &amp; Ors

1. A primary school started in 1854 at Bhagalpur was later converted into a Higher Secondary School.2. The Legislature of the State of Bihar enacted the Bihar High Schools (Control and Regulation of Administration) Act 13 of 1960 which by Section 8 invested the State Government with power to frame rules. Section 8 (1) providesState Government may, after previous publication and subject to the provisions of Articles 29, 30 and 337 of the Constitution of India, make rules not inconsistent with this Act for carrying out the purposes of this1964 rules were framed under the Act by the State Government of Bihar. Rule 41 providesrules shall not apply to the schools established and administered by the minorities whether based on religion or language.By order dated September 4, 1963, the President of the Board of Secondary Education approved the election of Bishop Parmar as President and Rev. Chest as Secretary of the Church Missionary Society Higher Secondary School. This order was set aside by the Secretary to the Government, Education Department, by order dated May 22, 1967. On June 21, 1967, the Regional Deputy Director of Education, Bhagalpur, addressed a letter to the Secretary, Church Missionary Society School, Bhagalpur, inviting his attention to the order dated May 22, 1967, and requested him to take steps to constitute a Managing Committee of the School "in accordance with that order".A petition was then filed in the High Court of Patna by four petitioners (who are appellants in Appeal No. 2346 of 1968) for a writ quashing the order dated May 22, 1967, and for an order restraining the respondents -- the State of Bihar, the Secretary to the Government of Bihar, Department of Education and the educational authorities of the State - from interfering with the right of the petitioners to control, administer and manage the affairs of the School. The High Court of Patna dismissed the petition. The High Court held that the primary School at Bhagalpur was established by the Church Missionary Society of London; that the School had developed into the present Church Missionary Society Higher Secondary School; and that the School was administered in recent times by the Church Missionary Society of the Bhagalpur Diocese; and that the School not being an educational institution established by a minority, protection was not afforded thereto by Article 30 of the Constitution. Against the order dismissing the petition, Civil Appeal No. 2346 of 1968 has been filed in this Court.Two other petitions are filed in this Court claiming relief on the footing that by the order dated May 22, 1967, of the Government of Bihar the fundamental right of the Christian minority to maintain an educational institution of its choice and guaranteed by Article 30 (1) is infringed. Writ Petition No. 430 of 1968 is filed by the Principal, Church Missionary Society Higher Secondary School, Bhagalpur, the Secretary, Bihar Christian Council, Gaya, the Secretary, Santhalia Christian Council, Bhagalpur, and the Secretary National Christian Council of India, Nagpur. Writ Petition No. 431 of 1968 has been filed by Rev. M. P. Hembrom, Parish Priest, Church Missionary Society, Bhagalpur, two of whose children are being educated at the School. These petitions are heard with Civil Appeal No. 2346 of 1968.

Reasoning: It appears from this correspondence and the resolutions and the discussions at the meetings that a permanent home for the Boys School was set up in 1854 on property acquired by local Christians and in buildings erected from funds collected by them. The institution along with the land on which it was built and the balance of money from the local fund were handed over to the Church Missionary Society in 1856. It is also true that substantial assistance was obtained from the Church Missionary Society, London. But on that account it cannot be said that the School was not established by the local Christians with their own efforts and was not an educational institution established by a minority.The Church Missionary Society Higher Secondary School is an educational institution administered by a minority; that was so found by the High Court and is not now in controversy.The High Court held that the primary school started in the year 1854 was started by the Church Missionary Society,London, and such a Society cannot be said to be a citizen of India and that in any event the persons who constituted the Society were aliens and on that account it cannot be said that the Church Missionary Society Higher Secondary School is an educational institution established by a minority. It is unnecessary to dilate upon these matters at length, for, in our judgement, the conclusion that the School was established not by the local Christians of Bhagalpur, but by the Church Missionary Society, London, is not justified on the evidence. The extracts from the Record Book clearly show that the local residents of Bhagalpur had taken a leading role in establishing and maintaining the school. Assistance was undoubtedly obtained from other bodies including the Church Missionary Society, London. But the School was set up by the Christian Missionaries and the local residents of Bhagalpur with the aid of funds part of which was contributed by them.It is unnecessary to enter upon an enquiry whether all the persons who took part in establishing the School in 1854 were "Indian Citizens". Prior to the enactment of the Constitution there was no settled concept of Indian citizenship; and it cannot be said that Christian Missionaries who had settled in India and the local Christian residents of Bhagalpur did not form a minority community. It is true that the minority competent to claim the protection of Article 30 (1) and on that account the privilege of establishing and maintaining educational institutions of its choice must be a minority of persons residing in India. It does not confer upon foreigners not resident in India the right to set up educational institutions of their choice. Persons setting up educational institutions must be resident in India and they must form a well-defined religious or linguistic minority. It is not however predicated that protection of the right guaranteed under Article 30 may be availed of only in respect of an institution established before the Constitution by persons born and resident in British India.It is necessary to bear in mind the difference in the phraseology used in Articles 29 and 30 of the Constitution. By Article 29 (1) 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 Cl. (2) guarantees 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.The protection of the rights under Article 29 may be claimed only be Indian citizens. Art. 30 guarantees the right of minorities to establish and administer educational institutions: the article does not expressly refer to citizenship as a qualification for the members of theare also unable to agree with the High Court that before any protection can be claimed under Article 30 (1) in respect of the Church Missionary Society Higher Secondary School it was required to be proved that all persons or a majority of them who established the institution were "Indian citizens" in the year 1854. There being no Indian citizenship in the year 1854 independently of the citizenship of the British Empire, to incorporate in the interpretation of Article 30 in respect of an institution established by a minority the condition that it must in addition be proved to have been established by persons who would, if the institution had been set up after the Constitution, have claimed Indian citizenship, is to whittle down the protection of Article 30 in a manner not warranted by the provisions of the Constitution.