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SUIT SLAPPED ON BISHOP WRIT

BY MADHUSHREE C. BHOWMIK

Calcutta, March. 3:

The Church of North India’s (CNI) move to impose its writ on the admission process in Anglo-Indian schools has hit a legal hurdle.

A public interest litigation has been filed in Calcutta High Court by the Association of Anglo-Indians in Eastern India and a Kalyani-based social worker, seeking “protection of the rights of Anglo-Indian students” in 36 city schools and 33 elsewhere in Bengal. The petition, filed against the Bishop of Calcutta, the state education department and St Thomas’ Boys School, Kidderpore, alleged violation of the code of regulations for Anglo-Indian schools and safeguards of minority rights under Articles 14 and 30 (Clause 1) of the Constitution. The case has been listed for hearing on Tuesday.

On December 12, 2001, the Diocese of Calcutta, controlled by the CNI, issued a circular to the heads of all Anglo-Indian schools, specifying a uniform admission policy. The circular, signed by Bishop P.S.P. Raju, directed the “chairman of the board of governors of the schools” to nominate three members to serve on the interview panel. As head of the Diocese, the Bishop is chairman of the governing bodies of all Anglo-Indian schools.

The petitioners alleged that his fiat to have “three of his own men” on the schools’ interview panels was an unfair “attempt to control the admission process”. According to them, the Bishop’s “uniform admission code” had given a complete “go-by to the issue of reservation for Anglo-Indian students”. They alleged that the Bishop had ignored the statutory five per cent reservation for Anglo Indian students, as guaranteed under the Code of Regulations for Anglo-Indian and Listed Schools, 1993.

“This is a serious allegation. Anglo-Indian students must get top priority in Anglo-Indian schools,” said MP Beatrix D’ Souza. “Anglo-Indian students must be given priority in Anglo-Indian schools. If  the applicants fulfil all the criteria, especially at the nursery and the lower nursery levels, the school has to take them in. It is a statutory right,’’ elaborated Anglo-Indian MLA Gillian D’Costa Hart.

Marc Antony of Destiny, the Kolkata Association of Anglo-Indians, said: “St Thomas Kidderpore refused admission to a six-year-old upper nursery applicant, Joshua Hayes from Kidderpore, on the grounds that his parents could not afford the fees, though everything else was in order.” The Hayes petitioned D’Costa Hart seeking redress. Max Gaulstaun, one of the petitioners, is upset that the Bishop’s writ gives “more weightage” to Bengali-speaking students under the general category and those from the family income brackets of Rs 2-Rs 3 lakh. “The Supreme Court verdict of 1832 decreed that the Bishop was an ex-officio governor. But in his individual capacity, he is not empowered to take any decision on the management of the schools,’’ says Anthony Seyers, president of the Association for Anglo-Indians in eastern India.

BY MADHUSHREE C. BHOWMIK  

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W. P. NO. OF 2002

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

ORIGINAL SIDE

--------

IN THE MATTER OF :

An application under Article 226 of the Constitution of India;

And

IN THE MATTER OF :

Issuance of appropriate writs and/or orders and/or directions thereunder;

And

IN THE MATTER OF :

The Code of Regulations for Anglo-Indian and Other Listed Schools, 1993;

And

IN THE MATTER OF :

Failure on the part of the respondent authorities to act in due discharge of

their duties and obligations in terms of the said Code;

And

IN THE MATTER OF :

Violation of Articles 14 and 30(1) of the Constitution of India;

And

IN THE MATTER OF :

1. Max Galstaun,

A-11/9, Kalyani, Nadia – 741 235

2.PATRICK NORMAN REDDEN, residing at 117, Lower Circular Road, Kolkata – 700

014.

PETITIONERS

-Versus-

1. State of West Bengal, through the Secretary, Department of Education,

having his office at Writers’ Buildings, Kolkata – 700 001, within the

aforesaid jurisdiction;

2. Deputy Director, Secondary Education, Anglo-Indian Schools, having his

office at Bikash Bhavan, Salt Lake, Kolkata – 700 091, outside the aforesaid

jurisdiction;

3. Loreto Convent, G.T. Road, Asansol – 713 301;

4. St. Vincent’s High & Technical School, Hill View Park, Asansol – 713 301; 5. St. Patricks’ Higher Secondary School, Asansol -713 301; 6. St. Xavier’s School, Durgapur, Burdwan – 713 103; 7. Auxilium Convent School, District:Hooghly, P.O.:Bandel PIN – 712 103; 8. Assembly of God Church School, 128, Park Street, Kolkata – 700 017; 9. Auxilium Convent School, 10, P. K. Guha Road, Dum Dum, Kolkata – 700 028; 10. Calcutta Boys’ School, 72, Surendra Nath Banerjee Road, Kolkata – 700

014;

11. Calcutta Girls’ High School, 118, Princep Street, Kolkata – 700 072; 12. Our Lady Queen of the Mission School, 34, Syed Amir Ali Avenue, Park

Circus, Kolkata – 700 017;

13. Don Bosco School, 23, Darga Road, Park Circus, Kolkata – 700 017; 14. Elias Mayer Free School and Talmud Torah, 50, Bepin Bihary Ganguly

Street, Kolkata – 700 012;

15. St. Joseph’s School, 16, B.B. Gangully Street, Kolkata 12; 16. La Martiniere for Boys, 11, Loudon Street, Kolkata – 700 017; 17. La Martiniere for Girls, 14, Rowdon Street, Kolkata – 700 017; 18. Loreto Day School, Dharamtala, 169, Lenin Sarani, Kolkata – 700 013; 19. Loreto Convent, Entally, P.O.: Tangra, Kolkata–700 015; 20. Loreto House, 7, Middleton Row,Kolkata–700 071; 21. Loreto Day School, 9, Elliot Road, Kolkata – 700 014; 22. Pratt Memorial School, 168, Acharya Jagadish Chandra Bose Road, Kolkata

– 700 014;

23. St. James’ School,

165, Acharya Jagadish Chandra Bose Road, Kolkata – 700 014;

24. Jewish Girls’ School, 63, Park Street, Kolkata 16;

25. St. Mary’s Orphanage and Day School, 103, Dum Dum Road, Kolkata – 700

030;

26. St. Mary’s School, 91/1B, Muzaffar Ahmed Street, (92, Ripon Street),

Kolkata – 700 016;

27. St. Paul’s Mission School, 5, Scott Lane, Kolkata – 700 009; 28. St. Thomas’ Boys’ School, 4, Diamond Harbour Road, Kidderpore, Kolkata –

700 023;

29. St. Thomas’ Girls’ School, 4, Diamond Harbour Road, Kidderpore, Kolkata

– 700 023;

30. St. Teresa’s Secondary School, 72, Diamond Harbour Road, Kidderpore,

Kolkata – 700 023;

31. St. Thomas’ Day School, 9, Mirza Ghalib Street, Kolkata – 700 087; 32. St. Xavier’s Collegiate School, 30, Park Street, Kolkata – 700 016; 33. Welland Gouldsmith School, 288, Bepin Behari Ganguly Street, Kolkata –

700 012;

34. St. Paul’s Boarding and Day School, 68, Diamond Harbour Road,

Kidderpore, Kolkata – 700 023;

35. Loreto Day School, 63, Bowbazar Street, Kolkata 12

36. Loreto Day School- Sealdah, 122, Lower Circular Road, Kolkata; 37. Armenian College and Philanthropic Academy, 56-B, Mirza Ghalib Street, Kolkata – 700 016; 38. St. Augustine’s Day School, 47-B, Ripon Street, Kolkata – 700 016; 39. Albany Hall Public School, 47, Gorachand Road, Kolkata – 700 014; 40. St. George’s School, 69, B.B.Ganguly Street, Kolkata 12; 41. Loreto Free School, 65, Bowbazar Street, Kolkata 12; 42.St. John Berchman’s School, 92, Lower Circular Road, Kolkata – 700 014; 43. Loreto House T.T. Department, Middleton Row Kolkata – 700 016; 44. Bethany School, Darjeeling 45. Salt Lake School, CA-221, Salt Lake City, Kolkata – 700 064; 46. Loyola High School, 54/3, Diamond Harbour Road, Kolkata – 700 027; 47. St. Joseph’s Convent, Strand Road, District: Hooghly; Chandannagar – 712

136,

48. St. Joseph’s Convent High School, 27, Asoke Avenue, P.O. Chittaranjan –

713 331, District Burdwan;

49. St. Xavier’s High School, Bardhaman;

50. Carmel Convent High School, M.A.H.C., Durgapur – 713 210; 51. Mount Hermon School, Darjeeling – 734 104; 52. Loreto Convent School, Darjeeling – 734 101; 53. St. Joseph’s College (School Department) North Point, P.O., Darjeeling –

734 104;

54. St. Paul’s School, P.O. Jalapahar, Darjeeling – 734 103; 55. Don Bosco School, Liluah, Howrah – 711 904; 56. St. Agnes’ Convent School, 1, King’s Road, Howrah – 711 101; 57. St. Thomas’ Church School, 3, Church Road, Howrah – 711 101;; 58. St. Aloysius Orphanage and Day School, 2, Mukhram Kanoria Road, Howrah

– 711 101;

59. Don Bosco School, District & P.O. Hooghly; Bandel – 712 103, 60. St. James’ High School, P.O. Binnaguri, District Jalpaiguri – 735 203; 61. St. Augustine’s School, District: Darjeeling, P.O. Kalimpong – 734 301,; 62. St. Joseph’s Convent, District: Darjeeling, Kalimpong – 734 301; 63. Dow Hill School, P.O. Dow Hill – 734 204, Kurseong, District Darjeeling; 64. Victoria Boys’ School, P.O. Dow Hill – 734 204, Kurseong, District:

Darjeeling;

65. Goethals Memorial School, P.O. Kurseong – 734203, District: Darjeeling; 66. St. Helen’s Secondary School, P.O. Kurseong- 734 203, District

:Darjeeling;

67. St. Agnes’ School, S. E. Rly, Kharagpur – 721 301;

68. Sacred Heart School, 6th Avenue, Kharagpur – 721 301;

69. St. Joseph’s High School, P.O. Matigara – 734 428, District: Darjeeling; 70. Don Bosco School, Sevak Road, Siliguri–734 401; 71. Dr. Graham’s Homes,

Kalimpong, Darjeeling.

RESPONDENTS

To

The Hon’ble Ashok Kumar Mathur, Chief Justice and His Companion Justices of

the said Hon’ble Court.

The humble petition of the petitioner abovenamed, most respectfully –S H E W E T H :

1. The petitioners are citizens of India and membersa of the Anglo-Indian community of Calcutta, inter alia, interested in upholding the rights of the members of the said community. The respondent Nos. 1 and 2 are authorities, inter alia, entrusted with the duty and obligation of ensuring that at all material times all recognised Anglo-Indian Schools fulfil the conditions of

recognition as laid down in the Code of Regulations for Anglo-Indian and Other Listed Schools and in the event of non-fulfillment of the said conditions to withdraw the recognition granted to the defaulting schools. The respondent Nos. 3 to 71 are schools recognised as Anglo-Indian schools in the State of West Bengal by the respondent Nos. 1 and 2.

2. In the year 1929 the Government of West Bengal framed the Code of  Regulations for European (now Anglo-Indian) Schools in Bengal (now West Bengal), 1929 for regulation of recognised Anglo-Indian Schools in the State. The provisions of Chapter I, Chapter – II and Chapter – III of the said Code of Regulations were subsequently modified by the Government of  West Bengal on 21st January, 1994 by the Code of Regulations for Anglo-Indian and Other Listed Schools, 1993. Your petitioner crave leave to refer to copies of the said Codes of regulations at the time of hearing, if necessary.

3. Regulation 5(2) of the said Code of Regulations for Anglo-Indian and Other Listed Schools, 1993 provides as follows :-

“Anglo-Indian School” means an institution, including all standards and divisions thereof, established under the said Code of Regulations for European (now Anglo-Indian) Schools in Bengal (now West Bengal), 1929 (hereinafter referred to in this Code as the existing Code) and continuing as such on the date of coming into force of this Code, provided that such institution continues to fulfil the conditions for recognition laid down in this Code, and particularly in regulation 8.”

4. Regulation 8 of the said Code provides that “A list of recognised schools shall be maintained by the Department of Education. No school shall be recognised as an Anglo-Indian School or Listed School unless it satisfies the State Board and the Department of Education that -a) its financial stability is assured; b) its Managing Body is properly constituted by the Founder;

c) it is not run for personal profit; d) it has suitable and adequate accommodation and sanitary arrangements having regard to the number, age and sex of the pupils attending it; e) for the purpose of public examinations, it prepares and presents pupils for one or more of the examinations, conducted by the Council, or a similar and equivalent examination approved by the State Board; f) it provides for such courses of study and instructions through the medium of English as approved by the Council or the Board; g) it has adequate number of teachers having prescribed qualifications; h) it has proper facilities for physical education, library services, laboratory work, craft work and co-curricular activities; i) it will make available upto 50% annual admissions to eligible Anglo-Indian pupils whose parents/guardians are prepared to pay full fees; j) it will offer free studentship or part free studentship to indigent Anglo-Indian pupils numbering not less than 5% of the total enrolment of the school.

5. It is as such incumbent on all Anglo-Indian Schools to expressly declare that 50% of their annual admissions will be reserved at the first instance for eligible Anglo-Indian pupils whose parents/guardians are prepared to pay full fees and that it will offer free studentship or part free studentship to indigent Anglo-Indian pupils numbering not less than 5% of the total strength of Anglo-Indian Schools and to give effect to and act on such declaration.

6. Regulation 7 of the said Code provides that the Deputy Director of  School Education (Anglo-Indian Schools) West Bengal will be the officer responsible to the Department of Education in respect of all Anglo-Indian Schools, listed schools, under-graduate training colleges and other institutions to which the provisions of the Code apply. 7. Regulation 13 of the said Code provides as follows :-

a) If, at any time, the D. D. S. E.(Anglo-Indian Schools, West Bengal considers on account of any deficiencies or defects that any school no longer fulfils the conditions for recognition laid down in this Code, he may, after giving an opportunity to the school to offer its explanation or defence, if any, recommend to the State Board the withdrawal of recognition of the school, giving reasons of such withdrawal of recognition. Provided that if the deficiencies or defects of the school are capable of immediate or early removal, the State Board may recommend suspension of recognition for such period as it may think fit, to enable the Managing Committee of the school to remedy the deficiencies or defects to the satisfaction of the State Board;b) Notice of withdrawal of recognition together with the reasons thereof  shall be communicated to the Managing Committee of the school concerned, fourteen clear days before imposition of the penalty to enable it to examine the charges and correct the irregularities;c) Any Managing Committee aggrieved by withdrawal of recognition of the school managed by it, may, within 30 days from the date of communication to it of the withdrawal, prefer an appeal against such withdrawal to the Secretary of the Department of Education (School Education), Government of  West Bengal.”

8. For the purpose of the aforesaid, Regulation 14 of the said Code provides that “the school shall be open for inspection in all its departments by the Deputy Director at all reasonable times with or without notice.”

9. It is as such duty incumbent on the D. D. S. E. to make necessary inspection of all Anglo-Indian Schools for the purpose of ensuring that they fulfill the conditions for recognition as laid down by the said Code and in the event of there being any deficiency or defect in the matter of  fulfillment of the same, to take steps against the concerned school in accordance with the Regulation 13 of the same.

10. While the Managing Committee of the Anglo-Indian Schools have the power to make rules, such powers do not extend to making rules in consistent with the provisions of the said Code. Anglo-Indian Schools being minority institutions are entitled to and receive the protection of Article 30(1) of  the Constitution of India which provides that all minorities, whether based on religion or language shall have the right to establish and administer any educational institution of their choice. In view of the provisions of the Codes referred to hereinabove and particularly of the Code of Regulation for Anglo-Indian and Other Listed Schools, 1993, such protection is available to Anglo-Indian schools only so long as they conform to and fulfill the requirements of recognition as Anglo-Indian schools. As such, it is only so long that a school is recognised as an Anglo-Indian School it is entitled to the protection of Article 30(1) of the Constitution of India with regard to its administration.

11. As schools presently recognised to be Anglo-Indian schools by the Government of West Bengal, the respondent Nos. 3 to 71 are governed by the provisions of the said Code of Regulations for European (now Anglo-Indian) Schools in Bengal (now West Bengal), 1929 as modified by the Code of  Regulations for Anglo-Indian and Other Listed Schools, 1993. Consequently,

each of them are obliged to expressly declare that they will make available upto 50% annual admissions to eligible Anglo-Indian pupils whose parents/guardians are prepared to pay full fees and further make available free studentship or part free studentship to indigent Anglo-Indian pupils numbering not less than 5% of the total enrolment of the school, and to give effect to and to act in terms of such declaration.

12. It is common knowledge that although obliged to do so, none of the respondent Nos.3 to 71 have any declared policy of making available upto 50% annual admissions to eligible Anglo-Indian pupils whose parents/guardians are prepared to pay full fees or any declared policy of making available free studentship or part free studentship to indigent Anglo-Indian pupils numbering not less than 5% of the total enrolment of the school; but the respondents failed to give effect to or act in terms thereof, as a result of  which, a large numbers of Anglo-Indian students and indigent Anglo-Indian students are being deprived of free, subsidised or proper education. This in turn is adversely affecting both the fabric and the future of the Anglo-Indian community of West Bengal in general and Calcutta in particular.

13. Although obliged to ensure that the conditions for recognition as Anglo-Indian schools are at all material times complied with by the respondent Nos. 3 to 71 and to take steps in accordance with the provisions of Regulation 13 in the event of their failure to do so, the respondent Nos. 1 and 2 have repeatedly failed and/or neglected to do so. This despite the fact that repeated representations have been made by members of the Anglo-Indian community of Calcutta to the respondent Nos. 1 and 2 from to time to the effect that the provisions of the Code and particularly those relating to admission of Anglo-Indian students are being flouted with impunity by the respondent Nos. 3 to 71.

14. As a consequence thereof, without conforming to the conditions for  recognition as Anglo-Indian schools, the respondent Nos. 3 to 71 are continuing to be recognised as Anglo-Indian schools and to receive the protection of Article 30(1) of the Constitution of India.

15. The respondent Nos. 1 and 2 are both State and statutory authorities vested with the duty and obligation of ensuring that the provisions of the Code of Regulations for European (now Anglo-Indian) Schools in Bengal (now West Bengal), 1929 as modified by the Code of Regulations for Anglo-Indian and Other Listed Schools, 1993 are duly complied with. Despite being repeatedly called upon to do so, the said respondents have, however, failed to act in discharge of such duty and obligation causing great sufferance to the members of the Anglo-Indian community of the State.

16. The acts and omissions of the respondent Nos. 1 and 2 are per se arbitrary and violative of Article 14 of the Constitution of India. Consequently the same are required to be remedied by this Hon’ble Court in exercise of its high prerogative writ jurisdiction on the grounds stated hereinabove, which are for the sake of convenience summarised hereunder as follows.

G R O U N D S

I. For that the respondent Nos. 1 and 2 are authorities, inter alia, entrusted with the duty and obligation of ensuring that at all material times all recognised Anglo-Indian Schools fulfil the conditions of  recognition as laid down in the Code of Regulations for Anglo-Indian and Other Listed Schools and in the event of non-fulfillment of the said conditions to withdraw the recognition granted to the defaulting schools.

II. For that in the year 1929 the Government of West Bengal framed the Code

of Regulations for European (now Anglo-Indian) Schools in Bengal (now West Bengal), 1929 for regulation of recognised Anglo-Indian Schools in the State.

III. For that the provisions of Chapter I, Chapter – II and Chapter – III of  the said Code of Regulations were subsequently modified by the Government of West Bengal on 21st January, 1994 by the Code of Regulations for Anglo-Indian and Other Listed Schools, 1993.

IV. For that Regulation 5(2) of the said Code of Regulations for Anglo-Indian and Other Listed Schools, 1993 provides that “Anglo-Indian School” means an institution, including all standards and divisions thereof, established under the said Code of Regulations for European (now Anglo-Indian) Schools in Bengal (now West Bengal), 1929 (hereinafter referred to in this Code as the existing Code) and continuing as such on the date of coming into force of this Code, provided that such institution

continues to fulfil the conditions for recognition laid down in this Code, and particularly in regulation 8.

V. For that Regulation 8 of the said Code provides that “A list of recognised schools shall be maintained by the Department of Education”.

VI. For that the Code provides that no school shall be recognised as an Anglo-Indian School or Listed School unless it satisfies the State Board and the Department of Education that its financial stability is assured, its Managing Body is properly constituted by the Founder, it is not run for personal profit, it has suitable and adequate accommodation and sanitary arrangements having regard to the number, age and sex of the pupils attending it, for the purpose of public examinations, it prepares and presents pupils for one or more of the examinations, conducted by the Council, or a similar and equivalent examination approved by the State Board, it provides for such courses of study and instructions through the medium of English as approved by the Council or the Board, it has adequate number of teachers having prescribed qualifications, it has proper

facilities for physical education, library services, laboratory work, craft work and co-curricular activities, it will make available upto 50% annual admissions to eligible Anglo-Indian pupils whose parents/guardians are prepared to pay full fees, it will offer free studentship or part free studentship to indigent Anglo-Indian pupils numbering not less than 5% of  the total enrolment of the school.

VII. For that it is incumbent on all Anglo-Indian Schools to expressly declare that 50% of their annual admissions will be reserved at the first instance for eligible Anglo-Indian pupils whose parents/guardians are prepared to pay full fees and that it will offer free studentship or part free studentship to indigent Anglo-Indian pupils numbering not less than 5% of the total Anglo-Indian Schools and to give effect to and act on such declaration.

VIII. For that Regulation 7 of the said Code provides that the Deputy  Director of School Education (Anglo-Indian Schools) West Bengal will be the officer responsible to the Department of Education in respect of all Anglo-Indian Schools, listed schools, under-graduate training colleges and other institutions to which the provisions of the Code apply.

IX. For that Regulation 13 of the said Code provides that if, at any time, the D. D. S. E.(Anglo-Indian Schools, West Bengal considers on account of any deficiencies or defects that any school no longer fulfils the conditions for recognition laid down in this Code, he may, after giving an opportunity to the school to offer its explanation or defence, if any, recommend to the State Board the withdrawal of recognition of the school, giving reasons of such withdrawal of recognition.

X. For that Regulation 13 of the said Code also provides that if the deficiencies or defects of the school are capable of immediate or early removal, the State Board may recommend suspension of recognition for such period as it may think fit, to enable the Managing Committee of the school to remedy the deficiencies or defects to the satisfaction of the State Board.

XI. For that Regulation 14 of the said Code provides that “the school shall be open for inspection in all its departments by the Deputy Director at all reasonable times with or without notice.”

XII. For that it is as such duty incumbent on the D. D. S. E. to make necessary inspection of all Anglo-Indian Schools for the purpose of ensuring that they fulfill the conditions for recognition as laid down by the said Code and in the event of there being any deficiency or defect in the matter of fulfillment of the same, to take steps against the concerned school in accordance with the Regulation 13 of the same.

XIII. For that while the Managing Committee of the Anglo-Indian Schools have the power to make rules, such powers do not extend to making rules in consistent with the provisions of the said Code.

XIV. For that Anglo-Indian Schools being minority institutions are entitled to and receive the protection of Article 30(1) of the Constitution of India which provides that all minorities, whether based on religion or language shall have the right to establish and administer any educational institution of their choice. In view of the provisions of the Codes referred to hereinabove and particularly of the Code of Regulation for Anglo-Indian and Other Listed Schools, 1993, such protection is available to Anglo-Indian schools only so long as they conform to and fulfill the requirements of  recognition as Anglo-Indian schools.

XV. For that it is only so long that a school is recognised as an Anglo-Indian School it is entitled to the protection of Article 30(1) of the Constitution of India with regard to its administration.

XVI. For that as schools presently recognised to be Anglo-Indian schools by the Government of West Bengal, the respondent Nos. 3 to 71 are governed by the provisions of the said Code of Regulations for European (now Anglo-Indian) Schools in Bengal (now West Bengal), 1929 as modified by the Code of Regulations for Anglo-Indian and Other Listed Schools, 1993.

XVII. For that each of them are obliged to expressly declare that they will make available upto 50% annual admissions to eligible Anglo-Indian pupils whose parents/guardians are prepared to pay full fees and further make available free studentship or part free studentship to indigent Anglo-Indian pupils numbering not less than 5% of the total enrolment of the school, and to give effect to and to act in terms of such declaration.

XVIII. For that it is common knowledge that although obliged to do so, none of the respondent Nos. 3 to 71 have any declared policy of making available upto 50% annual admissions to eligible Anglo-Indian pupils whose parents/guardians are prepared to pay full fees or any declared policy of making available free studentship or part free studentship to indigent Anglo-Indian pupils numbering not less than 5% of the total enrolment of the school. Consequently, the question of their giving effect to or acting in terms thereof does not and cannot arise.

XIX. For that as a result a large numbers of Anglo-Indian students and indigent Anglo-Indian students are being deprived of free, subsidised or proper education. This in turn is adversely affecting both the fabric and the future of the Anglo-Indian community of West Bengal in general and Calcutta in particular.

XX. For that although obliged to ensure that the conditions for recognition as Anglo-Indian schools are at all material times complied with by the respondent Nos. 3 to 71 and to take steps in accordance with the provisions of Regulation 13 in the event of their failure to do so, the respondent Nos. 1 and 2 have repeatedly failed and/or neglected to do so.

XXI. For that this despite the fact that repeated representations have been made by members of the Anglo-Indian community of Calcutta to the respondent Nos. 1 and 2 from to time to the effect that the provisions of the Code and particularly those relating to admission of Anglo-Indian students are being flouted with impunity by the respondent Nos. 3 to 71.

XXII. For that as a consequence thereof, without conforming to the conditions for recognition as Anglo-Indian schools, the respondent Nos. 3 to 71 are continuing to be recognised as Anglo-Indian schools and to receive the protection of Article 30(1) of the Constitution of India.

XXIII. For that the respondent Nos. 1 and 2 are both State and statutory  authorities vested with the duty and obligation of ensuring that the provisions of the Code of Regulations for European (now Anglo-Indian)

Schools in Bengal (now West Bengal), 1929 as modified by the Code of Regulations for Anglo-Indian and Other Listed Schools, 1993 are duly complied with.

XXIV. For that despite being repeatedly called upon to do so, the said respondents have, however, failed to act in discharge of such duty and obligation causing great sufferance to the members of the Anglo-Indian community of the State.

XXV. For that the acts and omissions of the respondent Nos. 1 and 2 are per se arbitrary and violative of Article 14 of the Constitution of India.

17. The petitioner and the members of the Anglo-Indian community of the State have no other efficacious or alternative remedy available to them and the reliefs prayed for herein, if granted, will afford complete relief.

18. As has been stated hereinabove, despite repeated representations made by members of the Anglo-Indian community to the respondent Nos. 1 and 2 from time to time, the said respondents have failed and/or neglected to act in due discharge of their duties and obligations or to ensure that the provisions of the Code of Regulations for European (now Anglo-Indian) Schools in Bengal (now West Bengal), 1929 as modified by the Code of Regulations for Anglo-Indian and Other Listed Schools, 1993 are duly complied with. In spite of justice being repeatedly demanded, the same has as such been denied to the petitioner and other members of the Anglo-Indian community. Accordingly, any further demand for justice is likely to be merely an idle and empty formality.

19. The respondent Nos. 1 and 2 have their office within the jurisdiction of this Hon’ble Court and as such this Hon’ble Court has the jurisdiction to receive and determine the instant application.

20. The petitioner has not filed any other petition on the self same cause of action either under Article 226 or under Article 32 of the Constitution of India before this Hon’ble Court or before any other High Court or before the Hon’ble Supreme Court of India.

21. In the facts and circumstances as aforestated, it is expedient and in the interest of justice to forthwith appoint a Special Officer with a direction to enquire as to whether the respondent Nos. 3 to 71 are acting in conformity with the provisions of the Code of Regulations for European (now Anglo-Indian) Schools in Bengal (now West Bengal), 1929 as modified by the Code of Regulations for Anglo-Indian and Other Listed Schools, 1993, inter alia, in the matter of admission of Anglo-Indian students and to file a report before this Hon’ble Court, as also to pass the others orders as prayed for herein.

22. Unless orders as prayed for herein are made, the petitioners and the members of the Anglo-Indian community in West Bengal will suffer irreparable loss, prejudice and injury.

23. This application is bonafide and is made for the ends of justice. The petitioners, therefore, humbly pray before Your Lordships that :-

a) A writ of or in the nature of Mandamus do issue:-

(i) commanding the respondent Nos. 1 and 2 to forthwith enquire and report as to whether, and if so, how the respondent Nos. 3 to 71 are complying with the provisions of the Code of Regulations for European (now Anglo-Indian)

Schools in Bengal (now West Bengal), 1929 as modified by the Code of Regulations for Anglo-Indian and Other Listed Schools, 1993, particularly with regard to the admission of Anglo-Indian students;

(ii) commanding the respondents to take steps in accordance with Regulation 13 of the Code of Regulations for European (now Anglo-Indian) Schools in Bengal (now West Bengal), 1929 as modified by the Code of Regulations for Anglo-Indian and Other Listed Schools, 1993 against defaulting schools including steps for their de-recognition as Anglo-Indian schools;

b) A writ of or in the nature of Certiorari do issue directing the respondent Nos. 1 and 2 to certify and transmit to this Hon’ble Court all records, papers and documents relating to the satisfaction of the conditions for recognition as Anglo-Indian schools by the respondent Nos. 3 to 71, so that conscionable justice may be done upon considering the same;

c) Rule Nisi in terms of the prayers above;

d) An order be made appointing a Special Officer with a direction to enquire as to whether the respondent Nos. 3 to 71 are acting in conformity with the provisions of the Code of Regulations for European (now Anglo-Indian) Schools in Bengal (now West Bengal), 1929 as modified by the Code of Regulations for Anglo-Indian and Other Listed Schools, 1993, inter alia, in the matter of admission of Anglo-Indian students and to file a report before this Hon’ble Court;

e) An ad-interim order be made in terms of the prayer (d) above;

f) Costs of this application be directed to be paid by the respondents;

g) Such further or other order or orders be made and/or direction or directions be given as to this Hon'ble Court may seem fit and proper.

And your petitioner, as in duty bound, shall ever pray.

AFFIDAVIT

We, (1) Max Galstaun son of A. Galstaun aged about 52 yrs, by faith Christian, Anglo-Indian of Armenian origin, residing at, A-11/9, Kalyani, Nadia – 741 235.and (2).Patrick Norman Redden, son of Late R. Reddn aged about 73 yrs. by faith Christian, Anglo-Indian origin, residing at 117, Lower Circular Road, Kolkata – 700 014, do hereby jointly make an oath and say as follows :

1. we are the petitioners herein and are well conversant with the facts and circumstances of the case.

2. That the statements contained in paragraphs 1 to 16 are true to my knowledge and the rest are our humble submissions before this Hon’ble Court. Sworn by the said Ronald Martin in the Court House at Calcutta on this the day of April, 2002. Before me.

COMMISSIONER.

Sworn by the said Max  Galstaun in the Court House at Calcutta on this the day of April, 2002.

Before me.

COMMISSIONER.

W. P. NO. OF 2002

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

ORIGINAL SIDE

--------

IN THE MATTER OF :

An application under Article 226 of the Constitution of India;

And

IN THE MATTER OF :

Max Galstaun & Anr.

VS

State of West Bengal & Ors.

WRIT PETITION

ATISH GHOSH

Advocate

11, OLD POST OFFICE STREET,

1ST FLOOR KOLKATA

========================================================================

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(Bantra Cemetery matter)

DISTRICT : HOWRAH

W. P. NO. (w) OF 2002

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

APPELLATE SIDE

In the Matter of :

An application under Article 226 of the Constitution of India;

And

In the Matter of :

Writ of or in the nature of Mandamus or Certiorari or Prohibition, order or

orders, direction or directions;

And

In the Matter of :

Articles 14, 15, 25, 26 and 29(1) of the Constitution of India;

And

In the Matter of :

Sections 212A 212E, 212F and 212G of the Howrah Municipal Corporation Act,

1980;

And

In the Matter of :

The desecration of graves, exhuming and cremation of bodies at Bantra

Cemetery by certain land developers on the strength of a purported illegal

agreement entered into between the Bishop, Church of North India and some

real estate developers;

And

In the Matter of :

The inaction on the part of the Howrah Municipal Corporation authorities in

preventing the desecration of the graves exhumation and cremation of the

corpses at the Bantra Cemetery;

And

In the Matter of :

A publication in the Hindustan Times, Howrah Live dated 26th March, 2002

about the digging up of the graves and burying of bodies under the caption

“Realtors dig up graves, burn bodies”;

And

In the Matter of :

Kevin Johnston, son of Mr. D. Johnston, residing at 4/C, Sapgachi Second

Lane, Police Station Tiljala, Kolkata – 700 039

PETITIONER

-Versus-

1. The State of West Bengal through the Secretary, Department of Municipal Affairs, Bikash Bhavan, Salt Lake, Kolkata – 700 091;

2. The Howrah Municipal Corporation through the Mayor-in-Council, Howrah;

3. The respective Borough Committee, Howrah Municipal Corporation, Howrah;

4. The Calcutta Diocesan Trust Association (Private) Ltd., a company duly registered under the Companies Act, 1956, having its office at 51, Chowringhee Road, Kolkata 700 071;

5. The Board of Directors, Calcutta Diocesan Trust Association (Private) Ltd., having its office at 51, Chowringhee Road, Kolkata 700 071;

6. The St. Thomas Church, represented through the Parish Priest, 6, Church Road, Howrah ;

7. The Officer-in-Charge, Bantra Police Station, Howrah

RESPONDENTS

To

The Hon’ble Ashok Kumar Mathur, Chief Justice and His Companion Justices of the said Hon’ble Court.

The humble petition of the petitioner abovenamed, most respectfully –

S h e w e t h:

1. The petitioner is a citizen of India. The petitioner is Christian and belongs to the Anglo-Indian Community.

2. The petitioner is filing this writ petition in the representative capacity – and being a Christian, is concerned with the protection of the cultural and religious rights of the Christian community which is the minority in India.

3. Rumours were doing the rounds about certain mal practices being carried out at the Christian Cemetery at Bantra, Howrah. There was word in the grapevine that the entire Bantra cemetery had been leased out and/or sold to developers and other businessmen for the purpose of constructing warehouses, factories and multi-storied apartments.

4. Shocked by such rumours, the petitioner visited the Bantra graveyard on the 11th of March, 2002 and found to their dismay that the rumours were absolutely true. The petitioners, who had attended some burials at the said cemetery in the past, knew it well. To their surprise, the petitioner found the whole graveyard to be dissected into plots of various dimensions. The graves in some of these plots had been razed. The sign of crucifixion or the cross on each of the graves were removed. Instead, only mounds of earth were found there. Grass had grown on these mounds signifying that the graves had been defiled quite some time back. No epitaphs were found on these graves. Enquiries from local Christians revealed that the graveyard had been dissected into plots and had been sold and/or leased out to businessmen. It is not understood as to why the graveyard comprising of 100 acres – as the records would have it - needs to be dissected by plotting it. Some photographs of the plot were

taken on the spot by the petitioner. Copies of these photographs are annexed hereto and marked with the letter ”P–1”.

5. The petitioner was told that soon the graves on one of the plots would be razed and constructions would begin immediately. On the 18th of March this year, on receipt of information from a friend, the petitioner again visited the spot and to their utter dismay found some labourers at work inside one of these plots in the graveyard. The petitioner gathered some of their Christian brethren and tried to oppose the labourers from razing the graves but, on threats of dire consequences being hurled on them by some hoodlums, the petitioner withdrew along with the group. Instead, the petitioner took refuge in the nearby Don Bosco home for the poor and from there could see the graves being desecrated: bodies being exhumed and cremated – much against Christianity. The petitioner took photographs of the way the graves were being despoiled. Copies of the photographs taken by the petitioner on one of such plots is annexed hereto and marked with the letter “P-2”.

6. As was wont to happen, the reporters got wind of the clandestine happenings at the Bantra Cemetery. The Hindustan Times of the 26th of March, 2002 in its supplementary, Howrah Live, carried a full fledged report of the desecration of the graves at the Bantra Cemetery and about the same plot of which the petitioner had taken photographs of on the 18th of March, 2002.

But the savage defilement of the graves surely strikes at the root of the Christian religion and is an invasion on their right to practice their religion.

7. Enquiries at the parish revealed that the last burial which took place on the plot of the graveyard - which was photographed by the petitioner on the 18th of March, 2002 (and has been annexed hereto with the letter P-2) and from which the bodies were being exhumed – was on 12th March, 2002, just a few days before the corpse of Isabella Sayter, who was buried there on that day, was exhumed.

8. The first burial at the graveyard at Bantra took place sometime in the year 1880 when Lonisa William was buried there. And it has, along with Howrah Cemetery and Sibpur Cemetery catered to the Christians of Howrah. The other two cemeteries being Howrah Cemetery and Sibpur Cemetery have not become defunct but have become extinct. There is no trace of them any more.

Perhaps with the boom in real estate in the early eighties, these two cemeteries have become the prey of covetous realtors – a fate – which if not thwarted now, awaits the Bantra Cemetery also.

9. The Bantra graveyard originally had an area of about 100 acres. This area suddenly began to dwindle in the nineties. Some multi storeyed constructions as well as chemical factories had begun to develop on the lands, which were comprised in the graveyard. Objections by the Christians of the area were easily silenced by the threats of the hoodlums who were hired by the businessmen and developers who professed that they were authorised by the trustees of the graveyards to construct on the grounds. The matter was not pursued further by the local Christians who were cowed into submission by threats and intimidation as aforesaid.

10. The Bantra Cemetery is managed by the Calcutta Diocesan Trust Association (Private) ltd. It is an affiliate of the Church of North India. At the Bantra Cemetery Christians bury their dead. Before burial the corpse is an embalmed. The burial ground – to the Christians – is consecrated. The Christian corpses which are buried in the cemetery cannot be exhumed without the proper pontifical authority. And that too for good reasons such as in connection with certain investigations or when a Christian is

ex-communicated. Even before ex-communication of a baptised Christian, there are elaborate investigations under proper authority. Therefore, amongst Christians digging up a grave without proper authority and purpose is a sacrilege. It is an act of mayhem committed on the Christian religion. The digging up of graves, exhuming bodies and burning them is palpably an act of

mayhem and sacrilege when such act is done in furtherance of an agreement for building houses and godowns.

11. When the Christians bury the dead in a graveyard, the persons who maintain such a graveyard become the trustees of the Christians who have buried their beloved in such graves. The deaths are registered and only on the receipt of a death certificate can a dead body be buried in cemetery. From the burial also, fees are paid. Therefore, the owners and managers of graveyards perform public functions and are responsible to the Government for allowing the relatives of the dead to bury only those bodies which are certified to be dead - and in this case – the provisions of Sections 212A, 212E, 212F and 212G of the Howrah Municipal Corporation Act, 1980 have been complied with.

12. The digging up of graves, exhuming bodies and burning them shocks the conscience of all Christians when such an act is to perpetrate the development of warehouses and buildings on the graveyard. The Christians do not burn bodies. It is morally and religiously wrong to do it. Such act of burning bodies after exhuming them is damned by the Christian tenets. These acts shake the foundation of the Christian religion and are beyond morality, decency and public order. It interferes with the religious beliefs of the Christians. In this regard a first information report dated 20th March, 2002 signed by the petitioner along with Fr. W.Barretto, the Parish Priest and some of the local Christians has been lodged with the Officer in Charge, Bantra Police station. A copy of the said FIR dated 20th March, 2002 is annexed hereto and marked with the letter “P-3”.

13. On Saturday, March 30, 2002 the Christians gathered at the cemetery to offer their homage to the dear departed. It was Easter week. But some hoodlums prevented the Christians from performing the Church services. And, in spite of the report in the newspapers the State respondents have made no enquiry, nothing at all. In fact, their apathy is appealing. A Christian

graveyard being used for purposes other than for which licence was given that to within the corporation area. Yet the municipal and state authorities pleaded that they have nothing to do.

14. In the backgrounds of the facts and circumstances narrated above, your petitioner most humbly submits as hereunder :-

a) The respondents have violated the constitutional articles in that religious beliefs and practices of the petitioners and their community have been remorsefully massacred;

b) The purported agreement for development of warehouses and building by digging up graves, exhuming bodies and cremating them in a Christian graveyard itself is a mayhem;

c) When relatives of a deceased Christian is allowed to bury the dead only on the strength of a proper death certificate, the burial ground no more becomes a private property but the custodians of such grounds begin to perform public functions and their actions will be gauged according to public policy and accountability. As such the digging up graves, exhuming bodies and burning them – which acts shock the conscience of the Christian world – is reprehensible and should be stopped immediately.

15. Being aggrieved by the actions of the respondents in allowing private parties to dig up graves, exhume bodies and burn them in an auditious attempt of infringement of the right of the Christians practices and profess their religion, your petitioner crave to move this public interest litigation under Article 226 of the Constitution of India on the following amongst other –

G R O U N D S:

A) For that the respondents have violated the constitutional articles in that religious beliefs and practices of the petitioners and their community have been remorsefully massacred;

B) For that the purported agreement for development of warehouses and building by digging up graves, exhuming bodies and cremating them in a Christian graveyard itself is a mayhem;

C) For that when relatives of a deceased Christian is allowed to bury the dead only on the strength of a proper death certificate, the burial ground no more becomes a private property but the custodians of such grounds begin to perform public functions and their actions will be gauged according to public policy and accountability. As such the digging up graves, exhuming

bodies and burning them – which acts shock the conscience of the Christian world – is reprehensible and should be stopped immediately;

D) For that it is well settled that when the constitutional guarantee under Part-III of the Constitution is violated by any person, then Writ will lie to correct the infringement.

16. Your petitioner has no alternative efficacious remedy and unless the respondents are directed by an interim order of injunction from proceeding further or any further with the desecration of the Bantra Cemetery, your petitioner will suffer irreparable loss and substantial injury.

17. The balance of convenience and inconvenience in granting the interim order prayed for herein is heavily in the petitioners’ favour.

18. The petitioner has not moved any other writ application on the grounds stated hereinabove.

19. The records of the case are lying in the office of the respondent Nos. 4 and 5 which are situated outside the Ordinary Original Jurisdiction of this Hon’ble Court.

20. This application is bonafide and for the ends of justice.In the circumstances aforestated, your petitioner most humbly prays before Your Lordships that :-

a) A writ of or in the nature of Mandamus do issue commanding the respondents to do their statutory duties in accordance with law and forebear from desecrating or allowing the desecration of the Bantra Cemetery by digging up the graves, exhuming bodies or burning them and to maintain the said graveyard only for the purpose for which licence was given by the Municipal authorities;

b) A writ of or in the nature of Prohibition permanently prohibiting the respondents from using the Bantra Cemetery for other purposes other than as a Christian Burial Ground;

c) A writ of or in the nature of Certiorari directing the respondents to certify and transmit before this Hon’ble Court the entire records of the case so that conscionable justice may be done to the petitioner and their community by quashing any instrument, agreement, orders, circular or any such like which has the effect of allowing private persons to change the nature and character of the Bantra Cemetery or which allows any person to dig up graves, exhume bodies and burn them;

d) Rule Nisi in terms of prayers (a), (b) and (c) above;

e) Interim order of injunction directing the respondents to refrain from any further activity of any account which has the effect of desecrating the graveyard by digging up bodies and burning them;

f) Further interim order restraining the respondents, their men, agents or assigns from constructing any warehouse, building or any such structure on the Bantra Cemetery till the disposal of the rule;

g) Ad-interim order to the effect that a Special Officer be appointed by this Hon’ble Court to visit the Bantra Cemetery, inspect all records and to file a report before this Hon’ble Court;

h) Further ad-interim order directing the Officer-in-Charge, Bantra Police Station to prevent any graves from being dug up and to ensure that no construction of any kind there being undertaken on the Bantra Cemetery;

i) Costs of and incidental to this application;

j) Such further or other order or orders be made and/or direction or directions be given as to this Hon’ble Court may seem fit and proper.

And your petitioners, as in duty bound, shall ever pray.

ADVOCATE FOR THE PETITIONER

AFFIDAVIT

I, Kevin Johnston, son of Mr. D. Johnston, aged about 31 years by faith Christian Anglo-Indian Community, by occupation service, residing at 4/C, Sapgachi Second Lane, Police Station Tiljala, Kolkata – 700 039, do hereby swear an affidavit and say as follows :

1. I am the petitioner herein and am well conversant with the facts and circumstances of the case. As such I sign and swear this affidavit.

2. That the statements contained in paragraphs 1 to 13 are true to my knowledge and the statements made in paragraphs 14 to 20 are my respectful submissions before this Hon’ble Court.

Prepared in my office. The deponent is known to

Advocate Clerk to Mr.

Advocate

SWORN before me

on this the day of

April, 2002.

COMMISSIONER.

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THE ABOVE DETAILS WERE SUBMITTED BY MAX GALSTAUN ON THE 19TH APRIL 2002 TO THIS WEBSITE