CHANDANA DAS(MALAKAR) Vs. STATE OF WEST BENGAL & ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 2859 of 2007, Judgment Date: Dec 11, 2014
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2858 OF 2007
Chandana Das …Appellant
Versus
State of West Bengal & Ors. …Respondents
WITH
CIVIL APPEAL NO.2859 OF 2007
Sukhbinder Kaur …Appellant
Versus
State of West Bengal & Ors. …Respondents
J U D G M E N T
T.S. THAKUR, J.
1. These appeals arise out of an order dated 23rd September, 2004 passed
by a Division Bench of the High Court of Calcutta whereby CANs No.3863/2004
and 3861/2004 filed by the respondent-State of West Bengal and others have
been allowed, order dated 18th December, 2003 passed by a Single Bench of
the High Court set aside and Writ Petitions No.16256 and 16255 of 2003
filed by the appellants herein dismissed.
2. The appellants, it appears, were appointed as teachers on temporary
basis in what is known as Khalsa Girls High School, Puddopukur Road,
Bhowanipore, Calcutta. Their appointment did not, however, meet the
approval of the District Inspector of Schools, Calcutta, according to whom
any such appointment could be made only on the recommendations of the
School Service Commission established under the Rules for Management of
Recognised Non-Government Institutions (Aided and Unaided), 1969 (the
Rules) (hereinafter referred to as “the Rules”).
3. Aggrieved by the order passed by the District Inspector, the
appellants approached the High Court of Calcutta in Writ Petitions No.16256
and 16255 of 2003 which were allowed by a learned Single Judge of the High
Court by his order dated 29th January, 2004 holding that the institution in
which the appellants were appointed being a linguistic minority institution
was entitled to select and appoint its teachers. The Single Bench
accordingly directed the respondents in the writ petitions to approve the
appointment of the appellants as whole time teachers with effect from 28th
July, 1999 and release the arrears of salary and other service benefits in
their favour with effect from the said date.
4. Aggrieved by the Judgment and Order of the learned Single Judge, the
State of West Bengal, Director of School Education and District Inspector
of Schools preferred CAN Nos.3861 of 2004 and 3863 of 2004 against the
order passed by the Single Bench which appeals were allowed and disposed of
by a Division Bench of that Court by a common order dated 23rd September,
2004. The High Court held that since the Institution in which the
appellants were appointed was a recognised aided Institution, the
Management of the Institution was bound to follow the mandate of Rule 28 of
the Rules aforementioned which permitted appointments against a permanent
post only if the candidate was recommended for any such appointment by the
School Service Commission. The Division Bench further held that the
appellants having been appointed beyond the sanctioned staff strength at
the relevant point of time and de hors the rules could not claim any
approval in their favour. The Court noted that directions issued by the
Director of School Education, Government of West Bengal did not permit any
appointment without the prior permission of the Director. No such
permission had been, in the case at hand, obtained from the Director. More
importantly, the Division Bench held that since the Institution had not
made any claim to its being a Minority Institution it was not open to the
employees-writ petitioners to claim any such status on its behalf. The
Division Bench further took the view that once a minority community applies
for a Special Constitution under Sub-Rule III of Rule 8 of the said Rules
it represents to the State Government that it was not claiming the status
of a minority institution. The Single bench had, therefore, fallen in
error in holding that the Institution where the appellants worked was a
minority Institution or that the appointment made by such an Institution
would not be regulated by Rule 28 of the Rules mentioned above. The
present appeals, as noticed above, call in question the correctness of the
view taken by the Division bench of the High Court.
5. The short question that falls for determination is whether Khalsa
Girls High School, Puddopukur Road, Calcutta is a Minority Institution, if
so, whether the Institution’s right to select and appoint teachers is in
any way affected by the provisions of the Rules of Management of Recognised
Non-Government Institutions (Aided and Unaided), 1969 framed under the
provisions of the West Bengal Board of Secondary Education Act, 1963.
6. The respondent-State contends that respondent No.4-Institution has
not been recognised as a Minority Institution nor was the minority status
claimed by the Institution when it applied for grant of a Special
Constitution under Rule 33 of the Rules mentioned above. In the absence of
a proper recognition of the minority status of the Institution, it is
governed by the rules including Rule 28 which regulates the appointment of
teachers in the Institution. The appointment of the appellants in the
present appeals being de hors the said procedure was not entitled to any
approval or regularisation by the authorities concerned, argues the State.
7. The Institution’s case, on the other hand, is that the same was and
continues to be a linguistic minority institution from its inception. The
affidavit filed on behalf of the Institution traces the history behind the
establishment of the institution for the benefit of Punjabi speaking Sikhs
settled in Calcutta and other parts of West Bengal. The affidavit states
that on 19th April, 1976 a detailed Memorandum was sent by institution to
the Secretary, West Bengal, Board of Secondary Education asking for
approval of the Special Constitution for the school in terms of Rule 33 of
the Rules mentioned above. That prayer was according to the Institution
made only because the school was a Minority Educational Institution. The
affidavit also relies upon recognition of the minority status of the school
by West Bengal Minority Commission in terms of its order dated 6th October,
1989. The affidavit states that minority status of the Institution
continues despite the grant sanctioned by the State which cannot carry
conditions that would have the effect of defeating or diluting the right of
minority to establish and administer its own Institutions. It was also
contended that Rule 33 of the Rules reserves in favour of the State
Government the power to frame further rules for certain Institutions to
which the provisions of Articles 26 and 30 of the Constitution apply. No
such Rules having been framed a minority can establish and run its
Institution in accordance with a Special Constitution that may be
sanctioned in its favour. Rule 28 of the Rules relating to appointment of
teachers in minority Institutions, therefore, does not apply in the present
case.
8. The appellants largely depend upon the fact that the Institution is a
minority Institution entitled to appoint its own teachers de hors the
procedure that is applicable to other institutes governed by the Rules. The
historical backdrop in which the respondent-school came to be established
is not disputed before us nor is it disputed that Punjabi speaking Sikh
community is a linguistic minority not only in the State of West Bengal but
in the entire country. So long as these two essential aspects are beyond
the pale of any controversy, we see no real reason for holding that an
Institution established in the backdrop set out in the counter affidavit by
a community that is admittedly a religious and linguistic minority both
nationally and in the State of West Bengal should be denied the status of
being a minority Institution. The State’s version that the institution had
never claimed the minority status is not borne out from the record. On the
contrary a representation dated 19th April, 1976 filed by the Institution
before the Secretary, West Bengal Board of Secondary Education specifically
prayed for recognition of its minority status. The representation sets out
the circumstances in which the institution was established by the Sikh
Community for the benefit of students of that community with the support of
the Board of Management of Bara Sikh Sangat, Sri Guru Singh Sabha and
Gurdwara Sant Rutia. In conclusion, the representation prayed for the
following relief:
“In the circumstances stated above it is humbly requested that under Rule
33 of the Rules framed and approved by the Government of West Bengal for
the administration of aided recognised institutions our Institution may be
declared as a minority community Institution and a special constitution for
the same may kindly be approved – the draft of which will be submitted
soon.”
9. In response to the representation the Institution received from the
Secretary of the Board a communication dated 3rd October, 1985 stating that
the permission for a special constitution granted in terms of Board’s
letter dated 7th June, 1962 will continue until further orders and asking
the institution to submit an election programme for completion of re-
constitution of the Management Committee within a period of six months.
The Special Constitution referred to in the representation and the order
passed by the Secretary was obviously referable to Rule 8 of the Rules
mentioned above. Rule 8(3) which deal with the power of the Executive
Committee of the Board to approve a Special Constitution may at this stage
be extracted :
“8(3) Notwithstanding anything contained in these rules, the Executive
Committee shall have the power to approve, on the application of any
Institution or class of Institutions, of the special constitution of a
Committee in favour of such Institution or class of Institutions and in
approving the special constitution of a Committee, the Executive Committee
shall pay due regard to the recommendations of the Director, if any. While
granting special constitution in favour of an Institution or a class of
Institution, the Executive Committee shall ensure that representation of
the members of the teaching and the non-teaching staff, guardians and the
member nominated by the Director or an officer authorised by him in this
behalf, is made according to clause (iii), clause (v) and clause (vi) of
Rule 6:
Provided that if the Executive Committee is of the opinion that a school
enjoying special constitution has not been functioning properly, the
Executive Committee may, after paying due regard to the recommendations of
the Director, if any, amend or withdraw such special constitution of a
Committee and in that event, the Executive Committee may, by order, appoint
an Administrator or an Ad-hoc Committee, as the case may be, to exercise
the powers and perform the functions of the Committee for such period as
may be specified in the order.”
10. A simple reading of the above would show that a Special Constitution
is not envisaged for any particular class of institutes. Such Special
Constitution can be approved on the application of any Institution or class
of institutions. It is immaterial whether the institution is a minority
institution or otherwise. The argument that approval of a Special
Constitution is by itself indicative of the institution giving up its claim
of being a minority institution has not appealed to us. The scheme of the
Rules in particular Rule 8(3) (supra) does not suggest either an implied
recognition of an institution as a minority Institution or the surrender of
any such claim just because a Special Constitution has been approved for it
by the Executive Committee of the Board. This is made clear by Rule 33 of
the Rules which reserves in favour of the State Government the power to
frame rules for institutes governed by the provisions of Articles 26 and 30
of the Constitution of India. Rule 33 reads:
“33. Power of the State Government to frame further rules for certain
Institutions –
Nothing in these rules shall affect the power of the State Government to
frame, on the application of any Institution or class of Institution to
which the provisions of Article 26 or Article 30 of the Constitution of
India may apply, further or other rules for the composition, powers,
functions of the Managing Committee or Committees of such Institution or
class of Institutions.”
11. The above clearly shows that the State Government is competent to
frame rules for minority Institutes governed by Articles 26 and 30 of the
Constitution on the application of any such Institute or class of
Institutes. Such rules when framed regulate composition, powers, functions
of the Managing Committee or Committees of such institution or class of
Institutions. The State Government has not admittedly exercised the rule
making powers reserved in its favour. It follows that once an institute is
recognised as a minority institution, its minority status would entitle the
managing committee of the institution to make appointment of teachers’
against vacancies within its sanctioned strength. The power to make such
appointments is enjoyed by the Institutes by reason of the constitutional
protection which such institutions enjoy. The legal position on the subject
is fairly well settled by a long line of decisions of this Court. We may
refer to only some of those decisions at this stage. But before we refer to
the decisions on the subject, we may as well deal with the argument, that
grant of a special constitution to a minority institution will be a
contradiction in terms, because by granting a special constitution under
Rule 8(3), the Executive Committee acquires the power in terms of the
proviso under the said proviso to appoint an administrator or an ad hoc
committee, which will have the effect of abridging the constitutionally
guaranteed rights of the minority to administer the institution. That
argument is fallacious for reasons more than one. Firstly, because under
the proviso the Executive Committee may amend or withdraw the special
constitution if it is of the opinion that the institution has not been
functioning properly. That power when exercised may no doubt deny to the
institution the advantage, if any, enjoyed by it under such a constitution;
but the minority status would remain unaffected by any such amendment or
withdrawal. Secondly, because the power to appoint an administrator or an
ad hoc committee may or may not be exercised even when the special
constitution is either withdrawn or amended. The former does not follow as
an inexorable consequence of the latter. Thirdly, because exercise of the
power to appoint an administrator for a limited period, is no infraction of
the right of the minority to administer the institution as the right to
administer guaranteed under the constitution does not include the right to
maladminister to borrow the expression used by Khanna J. in The Ahmedabad
St. Xavier’s College Society and Anr. v. State of Gujarat and Anr. (1974) 1
SCC 717 where His Lordship observed:
“90. We may now deal with the scope and ambit of the right guaranteed by
clause (1) of Article 30. The clause confers a right on all minorities,
whether they are based on religion or language, to establish and administer
educational instructions of their choice. The right con [pic]ferred by the
clause is in absolute terms and is not subject to restrictions, as in the
case of rights conferred by Article 19 of the Constitution. The right of
the minorities to administer educational institutions does not, however,
prevent the making of reasonable regulations in respect of those
institutions. The regulations have necessarily to be made in the interest
of the institution as a minority educational institution. They have to be
so designed as to make it an effective vehicle for imparting education. The
right to administer educational institutions can plainly not include the
right to maladminister. Regulations can be made to prevent the housing of
an educational institution in unhealthy surroundings as also to prevent the
setting up or continuation of an educational institution without qualified
teachers. The State can prescribe regulations to ensure the excellence of
the institution. Prescription of standards for educational institutions
does not militate against the right of the minority to administer the
institutions. Regulations made in the true interests of efficiency of
instruction, discipline, health, sanitation, morality, public order and the
like may undoubtedly be imposed. Such regulations are not restrictions on
the substance of the right which is guaranteed: they secure the proper
functioning of the institution, in matters educational [see observations of
Shah, J. in Rev. Sidhajbhai Sabhai p. 850]. Further as observed by
Hidyatullah, C.J. in the case of Very Rev. Mother Provincial the standards
concern the body politic and are dictated by considerations of the
advancement of the country and its people. Therefore, if universities
establish syllabi for examinations they must be followed, subject, however,
to special subjects which the institutions may seek to teach, and to a
certain extent the State may also regulate the conditions of employment of
teachers and the health and hygiene of students. Such regulations do not
bear directly upon management as such although they may indirectly affect
it. Yet the right of the State to regulate education, educational standards
and allied matters cannot be denied. The minority institutions cannot be
allowed to fall below the standards of excellence expected of educational
institutions, or under the guise of exclusive right of management, to
decline to follow the general pattern. While the management must be left to
them, they may be compelled to keep in step with others.”
(emphasis supplied)
12. In St. Xavier’s case (supra) a Constitution Bench of this Court was
examining the scope and ambit of the right of the minority whether based on
religion or language to establish and administer educational institutions
under clause (1) of Article 30 of the Constitution. The question arose in
the context of certain provisions in the Gujarat University Act, 1949 being
applied to linguistic or religious minorities. This Court by a majority
decision declared that the right of the minorities to administer
educational institutions does not prevent the making of reasonable
regulations in respect of those institutions. Such regulations can be made
to prevent housing of an educational institution in unhealthy surroundings
or to prevent the setting up or continuation of an educational institution
without qualified teachers. Prescription of standards for educational
institutions was not violative of the right of the minority to administer
the institutions declared this Court. Regulations made in the interests of
efficiency of instructions, discipline, health, sanitation, morality public
order and the like can be made and enforced against minority institutions
also. Such regulations do not restrict the substance of the right which is
guaranteed but only secure a proper functioning of the institution in
matters of education. On a comprehensive review of the earlier decisions of
this Court, Khanna, J. in his concurring judgment recognised the right of
all minority institutions to appoint qualified teachers of its choice and
also to exercise disciplinary control over such teachers and other members
of the staff of the institution. The following passage is, in this regard,
apposite:
“103. Another conclusion which follows from what has been discussed above
is that a law which interferes with a minority’s choice of qualified
teachers or its disciplinary control over teachers and other members of the
staff of the institution is void as being violative of Article 30(1). It
is, of course, permissible for the State and its educational authorities to
prescribe the qualifications of teachers, but once the teachers possessing
the requisite qualifications are selected by the minorities for their
educational institutions, the State would have no right to veto the
selection of those teachers. The selection and appointment of teachers for
an educational institution is one of the essential ingredients of the right
to manage an educational institution and the minorities can plainly be not
denied such right of selection and appointment without infringing Article
30(1)….”
13. That the right to administer does not include the right to
maladminister a minority institution was reiterated by another Constitution
Bench of this Court in St. Stephen’s College v. University of Delhi (1992)
1 SCC 558 where this Court said:
“The need for a detailed study on this aspect is indeed not necessary. The
right to minorities whether religious or linguistic, to administer
educational institutions and the power of the State to regulate academic
matters and management is now fairly well settled. The right to administer
does not include the right to maladminister. The State being the
controlling authority has right and duty to regulate all academic matters.
Regulations which will serve the interests of the students and teachers,
arid to preserve the uniformity in standards of education among the
affiliated institutions could be made. The minority institutions can not
claim immunity against such general pattern and standard or against general
laws such as laws relating to law and order, health, hygiene, labour
relations, social welfare legislations, contracts, torts, etc. which are
applicable to all communities. So long as the basic right of minorities to
manage educational institution is not taken away, the State is competent to
make regulatory legislation. Regulations, however, shall not have the
effect of depriving the right of minorities to educate their children in
their own institution. That is a privilege which is implied in the light
conferred by Article 30(1).”
14. In T.M.A Pai Foundation v. State of Karnataka (2002) 8 SCC 481, this
Court had another occasion to examine the right of the linguistic and
minority institutions to establish and administer their institutions. In
the context of grant of aid to such institutions this Court held that grant
of aid cannot be made subject to conditions that may impinge upon the right
of the linguistic minority institution to establish and administer its
institution. The conditions that could normally be permitted to be imposed
for minority educational institution receiving grant must be related to the
proper utilisation of the grant and fulfilment of the objectives of the
grant. This Court said:
“143. This means that the right under Article 30(1) implies that any grant
that is given by the State to the minority institution cannot have such
conditions attached to it, which will in any way dilute or abridge the
rights of the minority institution to establish and administer that
institution. The conditions that can normally be permitted to be imposed,
on the educational institutions receiving the grant, must be related to the
proper utilization of the grant and fulfilment of the objectives of the
grant. Any such secular conditions so laid, such as a proper audit with
regard to the utilization of the funds and the manner in which the funds
are to be utilized, will be applicable and would not dilute the minority
status of the educational institutions. Such conditions would be valid if
they are also imposed on other educational institutions receiving the
grant.
144. It cannot be argued that no conditions can be imposed while giving aid
to a minority institution. Whether it is an institution run by the majority
or the minority, all conditions that have relevance to the proper
utilization of the grant-in-aid by an educational institution can be
imposed. All that Article 30(2) states is that on the ground that an
institution is under the management of a minority, whether based on
religion or language, grant of aid to that educational institution cannot
be discriminated against, if other educational institutions are entitled to
receive aid. The conditions for grant or non-grant of aid to educational
institutions have to be uniformly applied, whether it is a majority-run
institution or a minority-run institution.”
15. More recently this Court had another occasion to examine the rights
guaranteed in favour of linguistic and religious minority and the
provisions in Sindhi Education Society and Anr. v. Chief Secretary,
Government of NCT of Delhi and Ors. (2010) 8 SCC 49. The question there
was whether regulation 64(1)(2) of the Delhi School Education Rules, 1973
and orders and instructions issued therein would, if made applicable to an
aided minority educational institution, violate the fundamental right
guaranteed under Article 30(1) of the Constitution. This Court held that
regulatory powers vested in the State to frame regulations for the
objective of ensuring better organisation and development of school
education and matters incidental thereto must operate within its
limitation. In cases where the minority status was duly accepted and
declared by the judgment of the High Court, it was not permissible for the
Government to stop grant-in-aid on the ground that the institution had
failed to comply with the conditions or restrictions otherwise
impermissible in law especially in the matter of appointment of teachers of
such minority institution where the institution had satisfied the laid down
criteria and/or eligibility conditions for such appointments. This Court
held that the right to appoint those who possess the eligibility and
qualification prescribed cannot be curtailed. The Court observed:
“112. Every linguistic minority may have its own social, economic and
cultural limitations. It has a constitutional right to conserve such
culture and language. Thus, it would have a right to choose teachers, who
possess the eligibility and qualifications, as provided, without really
being impressed by the fact of their religion and community. Its own
limitations may not permit, for cultural, economic or other good reasons,
to induct teachers from a particular class or community. The direction, as
contemplated under Rule 64(1)(b), could be enforced against the general or
majority category of the government-aided schools but, it may not be
appropriate to enforce such condition against linguistic minority schools.
This may amount to interference with their right of choice and, at the same
time, may dilute their character of linguistic minority. It would be
impermissible in law to bring such actions under the cover of equality
which in fact, would diminish the very essence of their character or
status. Linguistic and cultural compatibility can be legitimately claimed
as one of the desirable features of a linguistic minority in relation to
selection of eligible and qualified teachers.”
16. It is unnecessary to multiply decisions on the subject for the legal
position is well settled. Linguistic institution and religious are entitled
to establish and administer their institutions. Such right of
administration includes the right of appointing teachers of its choice but
does not denude the state of its power to frame regulations that may
prescribe the conditions of eligibility for appointment of such teachers.
The regulations can also prescribe measures to ensure that the institution
is run efficiently for the right to administer does not include the right
to maladministration. While grant in aid is not included in the guarantee
contained in the Constitution to linguistic and religious minorities for
establishing and running their educational institutions, such grant cannot
be denied to such institutions only because the institutions are
established by linguistic or religious minority. Grant of aid cannot,
however, be made subservient to conditions which deprive the institution of
their substantive right of administering such institutions. Suffice it to
say that once respondent No.4-institution is held to be a minority
institution entitled to the protection of Articles 26 and 30 of the
Constitution of India the right to appoint teachers of its choice who
satisfy the conditions of eligibility prescribed for such appointments
under the relevant rules is implicit in their rights to administer such
institutions. Such rights cannot then be diluted by the State or its
functionaries insisting that the appointment should be made only with the
approval of the Director or by following the mechanism generally prescribed
for institutions that do not enjoy the minority status.
17. The view taken by the Division Bench of the High Court that
appointments of the appellants were de hors the rules inasmuch as they were
not made by the School Service Commission hence did not qualify for
approval, does not appear to us to be sound. The mechanism provided for
making appointments under Rule 28 has no application to minority
educational institutions. Rule 28 reads as under:
“28. Powers of Committee - (1) In an aided institution the Committee shall,
subject to the provisions of any Grant-in-aid Scheme or Pay Revision Scheme
or any order or direction or guide-lines issued by the State Government or
the Director in connection therewith and in force for the time being, have
the power -
(i) to appoint on the recommendation of the West Bengal Regional School
Service Commission in respect of the region concerned, teachers on
permanent or temporary basis against permanent or temporary vacancies, if
and when available, within the sanctioned strength of teachers and on
approval by the Director or any Officer authorized by him, such approval
being sought for within a fortnight from the date of decision of the
committee in this behalf;
(ia) to appoint, in accordance with the directions given by the Director or
in his behalf, teachers and other employees against the
leave/lien/deputation vacancies, if available, within the sanctioned
strength;
(ib) to appoint, in accordance with the directions given by the Director
or any officer authorised by him in his behalf, the Assistant Headmaster or
the Assistant Headmistress against the vacancy within the sanctioned
strength from among the approved teachers.
(ic) to appoint, in accordance with the directions given by the Director or
any officer authorised by him in his behalf, part time teachers on such
terms and conditions as may be specified by the Government from time to
time for a period of one year with a provision of renewal with the break,
against the posts of part time teacher created for the Higher Secondary
Section of Higher Secondary Schools.
(ii) to appoint non-teaching employees on permanent or temporary basis
against permanent or temporary vacancies, if and when available, within the
sanctioned strength of non-teaching employees and on approval by the
Directors or any Officer authorized by him, such approval being sought for
within a fortnight from the date of decision of the committee in this
behalf;
(iii) to extend, if it thinks fit, the service of any teacher or other
employee, who was in service on the 31st December, 1985, but did not opt
for the revised scales of pay introduced with effect from the 1st January,
1986, or having opted for such revised scale of pay, subsequently withdraws
such option in terms of any order of the State Government in this behalf,
beyond the age of 60 years, being the age of superannuation, on a year to
year basis, but not beyond the age of 65 years;
Provided that the teacher or the employee concerned is physically fit and
mentally alert and that the approval for such extensions shall be sought
for from the Director or any other Officer authorized by him, within a
period of 15 days from the date of decision of the Committee;
Provided further that the teacher or other employee, who withdraws his
option for the revised scales of pay introduced with effects from the 1st
January, 1986, in terms of any order of the State Government in this
behalf, shall be deemed to have not opted for the said revised scales of
pay;
Provided also that not with withstanding anything contained in this clause,
such teacher or employee may opt for any revised scale of pay under any
subsequent Pay Revision Scheme, if he agrees to retire in accordance with
the terms of such schemes or at the age of superannuation for the time
being in force, where there is no such term.
(2) If the officer authorized by the Director under sub-rule (1) does not
approve the appointment or extension of service in any case coming under
clause (i) or clause (ii) or clause (iii) of sub rule (1), as the case may
be, he shall refer the case to the Director and in the case of disapproval
of any appointment or extension of service, the Director or the Officer
authorized by him shall communicate to the Committee the reasons therefor.
(3) Where the committee does not recommend extension of the service of a
teacher or an employee under clause (iii) of sub-rule (1), it shall record
specific reasons therefore and the person concerned may make his
representation to the Director through the District Inspector/Inspectors of
schools concerned and so far as the committee is concerned, the decision of
the Director shall be final.
(4) In an unaided Institution the Committee shall, subject to the approval
of the Board, have the power-
(i) to appoint in accordance with the directions given by the Director, or
in his behalf, teachers and other employees on permanent or temporary
basis, approval of such appointment being thereafter sought for from the
Board through the Director ordinarily within a fortnight from the date of
decision of the committee:
(ii) to extend as per condition laid down by the Director the services of
teachers and other employees beyond the date of superannuation, approval
for such extension being thereafter sought for from the Board ordinarily
within a week from the date of decision of the committee.
(5) if in any case coming under clause(i) or clause(ii) of sub-rule(4) the
Board does not approve the appointment the appointment or extension of
service, as the case may be, it shall communicate to the committee the
reasons for disapproval.
(6) where the committee does not recommend extension of service of a
teacher under clause(ii) of sub-rule(4) it shall record specific reason
therefore and the person concerned may make his representation to the board
and the decision of the board in the matter shall be final so far as the
committee is concerned.
(7) in all cases of appointment, both permanent and temporary, the
committee shall issue letters of appointment, specifying the terms and
conditions of such appointment. In the case of a permanent appointment, a
teacher or an employee appointed on probation shall be confirmed on the
expiry of the period of probation unless an order to the contrary is issued
at least 6 weeks before the date on which confirmation normally falls due.
In the case of an appointment on temporary basis against a permanent post
the teacher or the employee so appointed shall be confirmed on completion
of 2 years’ continuous satisfactory service in the institution:
Provided that no appointment shall be made in a vacancy if it is not
against a sanctioned post, permanent or temporary.
(8) Both in aided and un-aided Institutions the committee shall have the
power, subject to the prior approval of the board, to remove or dismiss
permanent or temporary teachers and other employees. For this purpose the
committee shall first draw up formal proceedings and issue charge-sheet to
the teacher or the employee concerned, and offer him reasonable facility
for defending himself. The teacher or the employee proposed to be proceeded
against shall submit his explanation, ordinarily, within a fortnight of the
receipt of the charge-sheet, the committee shall send to the Board all
relevant papers including the charge-sheets, explanations submitted by the
teachers or the employee concerned and the reason for which the Committee
decides in favour of taking disciplinary action. If the Board considers
that there are sufficient grounds for taking disciplinary action the
Committee shall issue formal notice calling upon the teacher or the
employee concerned to show-cause, ordinarily within a fortnight, why he
should not be dismissed or removed from service. The committee shall, then,
send again to the Board all relevant papers including the explanations
submitted by the teacher or the employee concerned and the recommendations
of the committee for the action proposed to be taken. So far as the
Committee is concerned, the decision of the Board shall be final:
Provided that the Board may delegate to any committee constituted under
section 24 of the act the powers and functions conferred on the Board by
this sub-rule.
(8.a) in case of lapses on the part of permanent or temporary teachers and
other employees of an institution, which do not warrant removal or
dismissal of the persons concerned, the Committee may impose minor
penalties, like ‘stoppage of one to three increments in pay, reduction of
pay in the timescale and censure, with the prior approval of the Board. In
all such cases, the Committee shall observe the procedure laid down in sub-
rule (8).
(8.b) in the case of teaching and non-teaching staffs of an institution
detained in custody for a period exceeding 48 hours under any law providing
for preventive detention or as a result of a proceeding for preventive
detention or as a result of a proceeding either on a criminal charge or
otherwise, such staffs shall be deemed to have been suspended by an order
of the appointing authority, with effect from the date of detention and
shall remain under suspension until further orders.
A teaching or non-teaching staff who is undergoing a sentence of
imprisonment shall also be dealt with in the same manner, pending a
decision on the disciplinary action to be taken against him.
(9) in aided and un-aided Institutions the Committee shall have the power -
(i) to grant leave other than casual leave which shall be granted by the
Head of the Institutions and by the Secretary of the Committee in the case
of the Head of the Institution; to grant increments in pay to teachers and
other employees in accordance with the procedure laid down from time to
time or where in aided schools that grant of increment is regulated by
grant-in-aid rules; in accordance with such rules;
(ii) to grant free or half- free studentship to students in accordance with
the procedure laid down from time to time, but ordinarily with the consent
of the Head of the Institution.
(iii) to manage funds of the institutions as per direction given by the
Director from time to time.
(iv) to frame annual report;
(v) to deal with all schemes of development of the institutions and such
other manners;
(vi) to allocate the total period of holidays in a year but special holiday
for a day or a portion thereof on account of death of any prominent person
or for any special occasion concerning the institution may be granted by
the Secretary or the Head of the Institution at his discretion;
(vii) to grant deputation of teachers, where such deputation is in the
interest of the institution provided that a teacher affected by the
decision of the Committee may make his representation to the Director;
(viia) to suspend a teacher or an employee where such suspension is in the
interest of the institution, pending drawal of proceedings against the
person concerned within 90 days from the date of suspension and during the
period of suspension, the person concerned shall be paid pay and allowances
equal to the 50% of the pay and allowances drawn by him immediately before
such suspension. Such steps shall be referred to the Board within 7 days of
such action for approval. The person affected by the decision of the
Committee may, however, make his/ her representation to the Board. The
order of suspension shall automatically stand withdrawn in case proceeding
are not drawn within a period of 90 days, provided that in exceptional
circumstances this time limit may be waived by the Board after due
consideration of the facts of the case, but under no circumstances the time-
limit shall be waived beyond the limit of 1 year;
Provided that where the period of suspension exceeds 90 days, the amount of
subsistence allowance shall be increased after the expiry of 90 days to 75%
of the pay and allowances drawn immediately before such suspension;
Provided further that the person concerned shall not be entitled to any
subsistence allowance if he/she accepts employment during the period of
suspension elsewhere.
(viii) to deal with other matters that are brought to the Committee in the
interest of the Institution.
Note: After clause (i) of sub-rule (9) of Rule 28, add the following note:
“The Committee shall grant leave according to rules shown in the appendix.”
Note: An Institution receiving recurring financial assistance in any shape
or form the State Government either for maintenance or for payment of
salary and/or allowances of teachers and/or other employees thereof shall
be treated as an aided Institution for the purposes of these rules.”
18. Placed in juxtaposition to Rule 33 of the Rules extracted earlier, it
is self evident that while Rule 28 applies generally to other institutions;
Rule 33 is more specific in its application to minority educational
institutions covered by Article 26 or 30 of the Constitution. In the
absence of any rules framed for such minority educational institutions the
minority educational institution in the present case was entitled to select
and appoint its teachers so long as other conditions for such appointments,
namely, availability of substantive vacancies and the eligibility of the
candidates for such appointments were duly satisfied.
19. It is not, in the instant case, disputed that the appellants were
both duly qualified for appointment as teachers in the subject concerned.
It is also not in dispute that they have been serving for a considerable
length of time on a meagre salary which the institution has been paying to
them in the absence of the State Government recognising the appointments
and releasing grant in aid against their posts.
20. The only other question that could possibly arise in the matter of
approval of such appointments was the absence of a sanctioned post as on
the date the appointments were made. It was contended by learned counsel
for the appellants that vacancies had subsequently arisen against which the
appointments of the appellants could be approved and the salary payable to
them from the date of such vacancies becoming available released. If that
be so, we see no reason why the appointments of the appellants should not
be approved with effect from the date of such vacancies becoming available
against which such appointments could be regularised. To that extent the
relief prayed for by the appellants shall suitably moulded.
21. In the result I allow these appeals, set aside the orders passed by
the Division Bench of the High Court and allow the writ petitions filed by
the appellants with a direction to the respondents to grant approval to the
appointment of the appellants with effect from the date vacancies became
available for such appointments. Consequential relief including arrears of
salary for the relevant period i.e. from the date the appointments are
approved shall also be released in favour of the appellants.
22. Parties are directed to bear their own costs.
………………………………….…..…J.
(T.S. THAKUR)
New Delhi
December 11, 2014
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2858 OF 2007
Chandana Das (Malakar) …
Appellant
Versus
State of West Bengal & Ors. … Respondents
WITH
CIVIL APPEAL NO.2859 OF 2007
Sukhbindar Kaur …
Appellant
Versus
State of West Bengal & Ors. … Respondents
J U D G M E N T
R. BANUMATHI, J.
I have gone through the judgment prepared by His Lordship Justice T.S.
Thakur. But, for the reasons which I shall indicate, I am unable to agree
with the interpretation placed on Rule 8, Sub-rule (3) of the Rules for
Management of Recognized Non-Government Institutions (Aided and Unaided)
1969 and other reasonings. Consequently, I do not also agree with the
final decision as, in my opinion, the present appeals are liable to be
dismissed and the judgment of the High Court has to be upheld.
Khalsa Primary School was started by the Sikh Community living in Calcutta
in 1932 for the purpose of promoting their culture and religious tenets and
imparting the education to the pupils belonging to their community. The
said Khalsa School was upgraded as High School and the State Government
granted recognition to the institution in 1954. Special Constitution
granted to the Managing Committee in terms of Rule 8, Sub-rule (3) of the
Rules for Management of Recognised Non-Government Institutions (Aided and
Unaided) 1969 (for short ‘the Rules’) was ordered to be continued until
further orders by the proceedings dated 3.10.1985.
The appellant-Chandana Das (Malakar) in Civil Appeal No. 2858 of
2007 was appointed as an Assistant Teacher in Science and Maths group on
1.4.1988 on a consolidated pay of Rs.600/- per month. The appellant-
Sukhbindar Kaur in Civil Appeal No.2959 of 2007 was appointed as Physical
Training Teacher from November 1984 on temporary basis on a consolidated
pay of Rs.300/- per month. The fourth respondent-School sent the proposal
to the District Inspector of Schools (DIOS) for regularization of the
services of the appellants. The appellants approached the High Court by
filing writ petitions (W.P.Nos.10032/96 & 12443/97 by Chandana Das &
W.P.Nos.10033/96 & 12442/97 by Sukhbinder Kaur) and those writ petitions
were disposed of directing DIOS to consider the representation of the
appellants. DIOS refused to approve the appointment of the appellants on
the ground that recruitment procedure was not maintained at the time of
appointment and as per the sanctioned strength of staff pattern, there was
no vacant post in the respective groups. The appellants again approached
the High Court by filing writ petitions (being W.P.Nos.16256/03 & 16255/03)
respectively which were allowed by the learned Single Judge on the ground
that the appointment of a teacher was an essential facet of administration
of minority educational institutions and the institutions had the right to
choose their teachers and the fourth respondent-school was entitled to
appoint its own teachers. Being aggrieved, the State of West Bengal
preferred appeals before the High Court. By the common judgment, the
Division Bench of the High Court allowed the appeals holding that the
institution is not a minority institution and that the appellants were
appointed dehors the provisions contained in Rule 28 of the Rules and hence
no direction could be issued for approval of their appointment and payment
of their arrears of salary. Being aggrieved, the appellants have filed
these appeals.
Even though the prayer in the writ petitions is for direction to the
Education Department-DIOS to grant approval to the appointment of the
appellants and to pay their arrears of salary over the years, the
appellants based their claim mainly contending that the fourth respondent-
school is a minority institution and is entitled to appoint its own
teachers dehors the provisions of the Rules for Management of Recognized
Non-Government Institutions (Aided and Unaided) 1969. The issue primarily
arising for consideration is whether the fourth respondent-school can claim
the status of a minority institution entitled to appoint its own teachers
dehors Rule 28 of the Rules.
Recognized non-Government Institutions, both aided and unaided, are
governed by the Management of Recognised Non-Government Institutions (Aided
and Unaided) Rules, 1969. Rule 28 of the Rules stipulates that in the
matters of appointment of teachers on permanent or temporary basis against
permanent or temporary vacancies, if and when available, appointment to be
made only on the recommendation of the West Bengal Regional School Service
Commission and on approval by the Director or any officer authorized by
him. As per Rule 28 (ia), the appointments are to be made in accordance
with the directions given by the Director only within the sanctioned
strength of teachers and on approval of the Director or a person authorized
by him. Rule 28 thus clearly stipulates that a recognized institution can
appoint a teacher on a permanent vacancy only if such teacher has been
recommended for such appointment by the School Service Commission. The
school cannot appoint anyone else. It is to be pointed out that there was
no recommendation in favour of the appellants by the West Bengal Regional
School Service Commission. Since the appellants were appointed without any
recommendation of the School Service Commission, DIOS rightly refused to
grant approval to the appointment of the appellants as recruitment
procedure in terms of Rule 28 was not followed at the time of appointment
of the appellants.
Contention of the learned counsel for the appellants is that fourth
respondent-school is enjoying the status of a linguistic minority
institution for conserving its group culture and language and it has got
every right of administration and it has the right to choose its Managing
Committee and appoint its own teachers. The appellants rely upon the
representation of the fourth respondent-school (dated 19.4.1976) in which
the fourth respondent-school has traced the history as to how Khalsa Girls
High School was formed by the Sikh community.
7. The impugned judgment of the Division Bench of
the Calcutta High Court is as under:
“…. In such view of the matter, a Constitution permitted under Sub-Rule III
of Rule 8 of the said Rules cannot be in relation to minority community
institutions. That has been amply cleared by framing Rule 33 in the
management Rules which specifically deals with institutions entitled to
protection of Articles 26 and 30. It authorizes the State Government to
make special rules for constitution of the Managing Committee of such
institutions. The moment a minority community applies for a special
constitution under Sub-Rule III of Rule 8 of the said Rules it represents
to the State Government that it is not claiming the status of minority
community at least at the time when such application is made….”
In my considered view, the above reasonings of the Calcutta High Court is
to be affirmed for the reasons indicated by me herein.
8. Article 30(1) of the Constitution of India gives rights to
minorities to establish and to administer educational institutions of their
choice. In the journey of interpreting the provisions of Articles 29 and
30 of the Constitution of India, this Court has elaborated the scope and
ambit of the rights conferred by Articles 29 and 30 of the Constitution of
India in favour of religious or linguistic minorities in various judgments,
viz. In Re: The Kerala Education Bill, 1957 [1959 SCR 995], The Ahmedabad
St. Xaviers College Society & Anr. v. State of Gujarat & Anr. [(1974) 1 SCC
717) and T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors.[(2002) 8
SCC 481].
9. Merely because an educational institution is established by a
religious or linguistic minority, it does not automatically become a
minority institution for the purposes of claiming right of administration
and for getting grant-in-aid. The concerned educational institution so
established by the religious or linguistic minority must be recognized or
granted the status of minority institution by the competent authorities.
The fourth respondent-school was established by the Sikh Community in 1932
and adopted its constitution and bye-laws in 1945. That Sikh Community
being a minority in the State of West Bengal does not necessarily imply
that the fourth respondent-school would be minority institution as per law.
According to the official respondents, minority status was never granted
to the fourth respondent-school and only Special Constitution of Management
was granted to the school. As the fourth respondent-school was never
declared to be a minority institution by the competent authorities, the
judgment in T.M.A. Pai Foundation’s case is not applicable to the fourth
respondent-school.
10. The fourth respondent-school in its representation dated
19.4.1976, has requested for grant of minority status in terms of Rule 33
of the Rules and that the institution may be declared as a minority
community institution. We may usefully extract the prayer in the said
representation, which reads as under:
“…it is humbly requested that under Rule 33 of the Rules framed and
approved by the Government of West Bengal for the administration of aided
recognized institutions our institution may be declared as a minority
community institution and a special constitution for the same may kindly be
approved – the draft of which will be submitted soon.”
11. The fourth respondent-school was granted only Special
Constitution as is seen from the proceedings dated 3.10.1985 of the West
Bengal Board of Secondary Education, which reads as follows:
“West Bengal Board of Secondary Education
77/2, Park Street, Calcutta-16
Dated:
3.10.85
To
The Headmistress
Khalsa Girls’ High School
75, Padmapukur Road,
Calcutta – 20
Sub: Special Constitution of the Managing Committee of the School
Madam,
I am directed to state that the permission of Special Constitution as
per Board’s letter No.4311/G dated 7.6.62 will be continued until further
order...
Sd/-
for (Secretary)”
As seen from the above, the school was only granted Special Constitution in
terms of the Rules. There is nothing on record to show that the school was
granted minority status by the competent authority.
12. Rule 33 of the Rules enables the State Government to frame
further rules for certain institutions to which the provisions of Article
26 or Article 30 of the Constitution of India may apply. In case of
minority institution, special rules so framed will apply. Rule 33 of the
Rules reads as under:
“33. Power of the State Government to frame further rules for certain
Institutions—Nothing in these rules shall affect the power of the State
Government to frame, on the application of any Institution or class of
Institution to which the provisions of Article 26 or Article 30 of the
Constitution of India may apply, further or other rules for the
composition, powers, functions of the Managing Committee or Committees of
such Institution or class of Institutions.”
13. The fourth respondent-school has not produced any
document to show that it has been accorded the minority status. Though
the fourth respondent-school contends that in terms of Rule 33 of the
Rules, no special rules have been framed for minority community
institutions, in its representation referred above, the fourth
respondent–school has requested for grant of minority status in terms of
the said rules framed under Rule 33. The appellants as well as the fourth
respondent-school rely upon the document signed by a member of the West
Bengal Minorities Commission (dated 6.10.1999) stating that Khalsa Girls
High School is enjoying the status of a linguistic minority institution
having all facilities enjoyable and available under Articles 29(1) and
30(1) of the Constitution of India. Neither the appellants nor the fourth
respondent-school have produced any document issued by the competent
authority, namely, the West Bengal Board of Secondary Education, granting
minority status to fourth respondent-school. In the absence of any order by
the competent authority, the fourth respondent-school is bound by the
mandate contained in the Rules for Management of Recognized Non-Government
Institutions (both Aided and Unaided) Rules. In terms of Rule 28, the
fourth respondent-school can only appoint in permanent posts the
persons/teachers, who have been recommended by the West Bengal Regional
School Service Commission. Rule 28(1) reads as follows:-
“28. Powers of Committee–(1) In an aided institution the Committee shall,
subject to the provisions of any Grant-in-aid Scheme or Pay Revision
Scheme or any order or direction or guidelines issued by the State
Government or the Director in connection therewith and in force for the
time being, have the power-
to appoint on the recommendation of the West Bengal Regional School
Service Commission in respect of the region concerned, teachers on
permanent or temporary basis against permanent or temporary vacancies, if
and when available, within the sanctioned strength of teachers and on
approval by the Director or any officer authorized by him, such approval
being sought for within a fortnight from the date of decision of the
committee in this behalf;”
When the fourth respondent-school has not been granted minority status, the
fourth respondent-school cannot appoint its own teachers dehors Rule 28 of
the Rules. Admittedly, the appellants were appointed dehors Rule 28 and
they cannot seek direction for approval of their appointment and arrears of
salary.
14. Onbehalf of respondent Nos. 4 & 5 it was contended that the
fourth respondent-school is a minority institution and declaration of its
minority status by the Government could only be a recommendation of an
existing fact and therefore rights of fourth respondent-school as a
minority institution cannot be tinkered with and right to appoint teachers
of its own choice cannot be wished away. In support of this contention,
reliance was placed upon the judgment of this Court in N. Ammad vs.
Manager, Emjay High School & Ors. (1998) 6 SCC 674 wherein it was held as
under:-
“12. Counsel for both sides conceded that there is no provision in the Act
which enables the Government to declare a school as a minority school. If
so, a school which is otherwise a minority school would continue to be so
whether the Government declared it as such or not. Declaration by the
Government is at best only a recognition of an existing fact. Article 30(1)
of the Constitution reads thus:
“30. (1) All minorities, whether based on religion or language, shall have
the right to establish and administer educational institutions of their
choice.”
13. When the Government declared the School as a minority school it has
recognised 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
antecedent to such declaration. Therefore, we are unable to agree with the
contention that the School can claim protection only after the Government
declared it as a minority school on 2-8-1994.”
15. The fourth respondent-school being a recognized aided
institution is bound by the Rules for Management of Recognized Non-
Government Institutions (Aided and Unaided) 1969. As noticed earlier,
permission for Special Constitution was granted to the fourth respondent-
school in terms of Rule 8(3) of the Rules. Having accepted the Special
Constitution in terms of Rule 8(3), the fourth respondent-school cannot
turn round and contend that it is a minority institution as per special
rules framed in terms of Rule 33. Having not challenged the permission for
Special Constitution, fourth-respondent-school cannot place reliance on the
above decision to contend that it is only a minority institution.
16. Relying upon a document dated 6.10.1999 signed by a Member of
West Bengal Minorities Commission, on behalf of respondent Nos.4 and 5 a
feeble attempt was made to contend that fourth respondent-school was
granted minority status with effect from the said date, i.e. 6.10.1999, and
by virtue of the said document the fourth respondent-school must be deemed
to be a minority institution. The said document is signed by only a Member
of the West Bengal Minorities Commission. The proceedings (dated
3.10.1985) of West Bengal Board of Secondary Education continuing the
permission of special constitution states that the special constitution of
the fourth respondent school is continued until further orders. The fourth
respondent-school has not produced any further orders issued by the
competent authority, namely, the West Bengal Board of Secondary Education,
recognizing the fourth respondent-school as the minority institution. Be
it noted that the fourth respondent- school has not produced any material
showing that over the years it has been appointing its own teachers dehors
Rule 28 and that those appointments were approved by the DIOS. In the
absence of any such order issued by the competent authority or material,
the fourth respondent-school cannot claim the status of a minority
institution.
17. Let me now consider the scope of Special Constitution in terms
of Rule 8(3) of the Rules and when the fourth respondent-school has
accepted the Special Constitution whether it can still claim minority
status.
18. As noticed earlier, the management of both aided and unaided
recognized institutions is governed by the Management of Recognised
Institutions (Aided & Unaided) Rules, 1969. Rule 6 of the Rules provides
for composition of the management committee of an institution other than
that sponsored by the State Government. Rule 6A of the Rules provides for
manner of formation of a managing committee. Rule 8 lays down the power of
the Executive Committee of the Board of Secondary Education to grant
special constitution and approve or supersede managing committee, appoint
administrator or ad-hoc committee. ‘Special Constitution’ means the special
provision regarding representations in the Managing Committee. As per Rule
8(3), there has to be proper representation of the members of the teaching
and the non-teaching staff, guardians and the member nominated by the
Director etc.
19. In terms of Rule 8(3) of the Rules, the Executive Committee
shall have the power to approve the special constitution of a committee in
favour of any institution. As per the proviso to Rule 8(3), if the
Executive Committee is of the opinion that a school enjoying special
constitution has not been functioning properly, the Executive Committee may
withdraw such special constitution of the committee and in that event, the
Executive Committee may appoint an administrator or an ad-hoc Committee.
Rule 8(3) of the Rules reads as under:
“8(3). Power of Executive Committee to approve and supersede Committee, to
appoint Administrator or ad-hoc Committee and to grant special
constitution:
(3) Notwithstanding anything contained in these rules, the Executive
Committee shall have the power to approve, on the application of any
Institution or class of Institutions, of the special constitution of a
Committee in favour of such Institution or class of Institutions and in
approving the special constitution of a Committee, the Executive Committee
shall pay due regard to the recommendations of the Director, if any. While
granting special constitution in favour of an Institution or a class of
Institutions, the Executive Committee shall ensure that representation of
the members of the teaching and the non-teaching staff, guardians and the
member nominated by the Director or an office authorized by him in this
behalf, is made according to clause (iii), clause (v) and clause (vi) of
Rule 6:
Provided that if the Executive Committee is of opinion that a school
enjoying special constitution has not been functioning properly, the
Executive Committee may, after paying due regard to the recommendations of
the Director, if any, amend or withdraw such special constitution of a
Committee and in that event, the Executive Committee may, by order, appoint
an Administrator or an Ad-hoc Committee, as the case may be, to exercise
the powers and perform the functions of the Committee for such period as
may be specified in the order.”
20. Clause (1) of Article 30 of the Constitution of India provides
that all minorities whether based on religion or language shall have the
right (i) to establish and (ii) to administer educational institutions of
their choice. The expression ‘to establish’ means to set up on permanent
basis. The expression ‘to administer’ means to manage or to attend to the
running of the affairs of the institution. The choice must be the absolute
choice vested absolutely in the minority community.
21. This Court in The Ahmedabad St. Xaviers College Society
(supra) considered the scope of the expression ‘administer’ and
held as under:
“………The right to administer is said to consist of four principal matters.
First is the right to choose its managing or governing body. It is said
that the founders of the minority institution have faith and confidence in
their own committee or body consisting of persons selected by them. Second
is the right to choose its teachers. It is said that minority institutions
want teachers to have compatibility with the ideals, aims and aspirations
of the institution. Third is the right not to be compelled to refuse
admission to students. In other words, the minority institutions want to
have the right to admit students of their choice subject to reasonable
regulations about academic qualifications. Fourth is the right to use its
properties and assets for the benefit of its own institution.”
22. In terms of Rule 8(3) of the Rules, the special constitution of
an institution should comprise according to clause (iii), clause (v) and
clause (vi) of Rule 6. As per the proviso to Rule 8(3) of the Rules, if
the Executive Committee is of the opinion that a school enjoying special
constitution has not been functioning properly, the Executive Committee
may, after paying due regard to the recommendations of the Director, if
any, amend or withdraw such special constitution of a Committee and appoint
an Administrator or an Ad-hoc Committee. Special constitution has been
granted to the fourth respondent-school in terms of Rule 8(3) of the Rules.
A reading of Rule 8(3) thereon would clearly show that the institution
having special constitution cannot have a managing committee of its own,
but the managing committee should be in terms of Rule 8(3) of the Rules
which indicates that the right of the institution to have the managing
committee is curtailed. The right of the minorities is to establish and to
administer educational institutions of their choice. Choice must be an
absolute choice of the minority community. The moment the said right is
abridged, the choice no longer remains a choice. In my considered view,
the Division Bench of the Calcutta High Court has rightly held that Rule
8(3) of the Rules amounts to an imposition abridging the fundamental right
and therefore a special constitution permitted under Rule 8(3) cannot be in
relation to minority community institutions. Having accepted the special
constitution in terms of Rule 8(3) of the Rules, the fourth respondent-
school cannot contend that it is a minority institution governed by the
special rules framed by the State under Rule 33 of the Rules.
23. The fourth respondent-school has accepted the special
constitution and it has not chosen to challenge the same. As rightly held
by the High Court, when the fourth respondent-school has accepted the
special constitution and has not claimed to be a minority institution, the
appellants who are merely employees of such an institution, cannot contend
that the institution was a minority institution entitled to appoint its own
teachers.
24. Since the appellants were appointed dehors the provisions
contained in Rule 28 of the Rules, the High Court rightly held that their
appointment is in contravention of the Rules and beyond the sanctioned
strength at the relevant time and no direction could be issued for approval
of their appointment. The impugned order of the High Court does not suffer
from any infirmity warranting interference.
25. In the result, the appeals are dismissed. Parties shall bear
their respective costs.
…………………….J.
(R. Banumathi)
New Delhi,
December 11, 2014
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