Chandana Das (Malakar) v. State Of West Bengal And Others

Per Thakur, J.

The appellants largely depended upon the fact that the Institution was a minority institution entitled to appoint its own teachers dehors the procedure that was applicable to other institutes governed by the Rules. The historical background in which the respondent school was established was not disputed, nor was it disputed that the Punjabi-speaking Sikh community was a linguistic minority not only in the State of West Bengal but in the entire country. Thus, admittedly a religious and linguistic minority both nationally and in the State cannot be denied minority status.

(Para 9)

The State's version that the Institution had never claimed the minority status is not borne out from the record.

(Paras 10 to 12)

The argument that approval of a special constitution is by itself indicative of the institution giving up its claim of being a minority institution is without substance. The scheme of the Rules in particular Rule 8(3) 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.

(Para 13)

The State Government had 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 the Supreme Court.

(Para 14)

Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717 : 1 SCEC 125; St. Stephen's College v. University of Delhi, (1992) 1 SCC 558 : 1 SCEC 404; T.M.A Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2 SCEC 1; Kerala Education Bill, 1957, In re, AIR 1958 SC 956 : 1959 SCR 995; N. Ammad v. Emjay High School, (1998) 6 SCC 674 : 1 SCEC 732, referred to

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 which would have the effect of abridging the constitutionally guaranteed rights of the minority to administer the institution is fallacious.

(Paras 14 and 15)

Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717 : 1 SCEC 125; St. Stephen's College v. University of Delhi, (1992) 1 SCC 558 : 1 SCEC 404; T.M.A Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2 SCEC 1; Sindhi Education Society v. Govt. (NCT of Delhi), (2010) 8 SCC 49 : (2010) 2 SCC (L&S) 522 : 3 SCEC 743; Kerala Education Bill, 1957, In re, AIR 1958 SC 956 : 1959 SCR 995; N. Ammad v. Emjay High School, (1998) 6 SCC 674 : 1 SCEC 732; Sidhrajbhai Sabhai v. State of Gujarat, AIR 1963 SC 540 : (1963) 3 SCR 837; State of Kerala v. Very Rev. Mother Provincial, (1970) 2 SCC 417, referred to

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. Once Respondent 4 Institution is held to be a minority institution entitled to the protection of Articles 26 and 30 of the Constitution 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. The mechanism provided for making appointments under Rule 28 has no application to minority educational institutions.

(Paras 21 to 23)

Now, 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.

(Para 24)

It was not 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. 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. Here 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. Hence, there is 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.

(Paras 25 to 27)

State of W.B v. Sukhbindar Kaur, 2004 SCC OnLine Cal 570 : (2005) 3 CHN 604, referred to

Per Banumathi, J. (disagreeing)

Rule 28 clearly stipulates that a recognised institution can appoint a teacher on a permanent vacancy only if such teacher has been recommended for such appointment by the School Service Commission. Since there was no recommendation in favour of the appellants by the West Bengal Regional School Service Commission the DIOS rightly refused to grant approval to the appointment of the appellants.

(Para 32)

Merely because an educational institution is established by a religious or linguistic minority, it does not automatically becomes a minority institution for the purposes of claiming right of administration and for getting grant-in-aid. The educational institution concerned so established must be recognised or granted the status of minority institution by the competent authorities. That Sikh community is a minority in the State of West Bengal does not necessarily imply that the fourth respondent school would be a 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. 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, (2002) 8 SCC 481 is not applicable to the fourth respondent school.

(Para 36)

Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717 : 1 SCEC 125; T.M.A Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2 SCEC 1; Kerala Education Bill, 1957, In re, AIR 1958 SC 956 : 1959 SCR 995, referred to

The fourth respondent school had not produced any document to show that it was accorded the minority status. So, 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 Recognised Non-Government Institutions (Aided and Unaided), 1969.

(Para 40)

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. Admittedly, the appellants were appointed dehors Rule 28 and they cannot seek direction for approval of their appointment and arrears of salary.

(Para 41)

N. Ammad v. Emjay High School, (1998) 6 SCC 674 : 1 SCEC 732, referred to

The fourth respondent school being a recognised aided institution is bound by the Rules for Management of Recognised Non-Government Institutions (Aided and Unaided) 1969. 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 the special rules framed in terms of Rule 33. Having not challenged the permission for special constitution, the fourth respondent school cannot place reliance on N. Ammad, (1998) 6 SCC 674 to contend that it is only a minority institution.

(Para 43)

N. Ammad v. Emjay High School, (1998) 6 SCC 674 : 1 SCEC 732, referred to

In clause (1) of Article 30 of the Constitution 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.

(Para 49)

Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717 : 1 SCEC 125, referred to

Special constitution has been granted to the fourth respondent school in terms of Rule 8(3) of the Rules. So an 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 Division Bench 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.

(Para 51)

Furthermore, as rightly held by the High Court, when the fourth respondent school had accepted the special constitution and had not claimed to be a minority institution, the appellants who were merely employees of such an institution, would not contend that the institution was a minority institution entitled to appoint its own teachers. Since the appellants were appointed dehors the provisions contained in Rule 28 of the Rules, the High Court rightly held that their appointment was 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.

(Paras 52 and 53)

P-M/54839.S