Chandana Das(Malakar) vs The State Of West Bengal And Others

ITEM No. 1B Court No. 2 SECTION XIIA (For Judgment)

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal No(s). 2858 of 2007

CHANDANA DAS (MALAKAR) Appellant(s)

VERSUS

STATE OF WESTR BENGAL AND ORS. Respondent(s)

with

Civil Appeal No. 2859 of 2007

Date : 11/12/2014 These appeals were called on for judgment today.

For Appellant(s) Mr.Sidharth Bhatnagar, Adv. Ms.Sonia Dube, Adv. Ms. Kanchan Yadav, Adv. M/s. Legal Options

For Respondent(s) Mr. Anip Sachthey, Adv.

Mr. Rana Mukherjee, Adv. Mr. Shekahr Kumar, Adv. Ms. Kasturika, Adv.

UPON hearing the counsel the Court made the following O R D E R

Hon'ble Mr. Justice T.S.Thakur and Hon'ble Ms. Justice R.Banumathi pronounced separate Judgments of the Bench. Signature Not Verified The appeals are allowed in terms of the Digitally signed by Shashi Sareen Date: 2014.12.22 06:35:29 ALMT judgment pronounced by Hon'ble Mr. Justice Reason:

T.S.Thakur and the appeals are dismissed in terms of the judgment pronounced by Hon'ble Ms. Justice R.Banumathi.

2

In view of the difference of opinion expressed by us, these appeals shall be listed before a three-Judges Bench of this Court for resolving the conflict. The papers be placed before Hon'ble the CJI for constituting an appropriate Bench

(Shashi Sareen) (Veena Khera) Court Master Court Master

(Two separate signed reportable judgments are placed on the file) 3

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

JUDGMENT

T.S. THAKUR, J.

1. These appeals arise out of an order dated 23 rd 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 4

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 29 th

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 5

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 23 rd 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 6

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 7

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 19 th April,

1976 a detailed Memorandum was sent by institution to the

Secretary, West Bengal, Board of Secondary Education asking for 8

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 6 th 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 9

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 19 th 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 10

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 3 rd

October, 1985 stating that the permission for a special

constitution granted in terms of Board’s letter dated 7 th 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 11

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 12

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 13

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 14

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 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, 15

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 16

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).

17 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).” 18

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 19

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 20

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 21

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 22

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.

23 (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 31 st December, 1985, but did not opt for the revised scales of pay introduced with effect from the 1 st 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 24

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.

25 (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 26

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;

27

(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 28

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 29

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.

30 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 31

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

JUDGMENT

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 32

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.

2. 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.

3. 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 33

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 34

have filed these appeals.

4. 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.

5. 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 35

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.

6. 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 36

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 37

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 38

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...

39 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 40

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-

(i) to appoint on the recommendation of the West Bengal 41

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:

42 “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 43

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.

44

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 45

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 46

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 47

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. 48

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