Supreme Court of India
CHANDANA DAS (MALAKAR)versusTHE STATE OF WEST BENGAL & ORS.
- Citation
- 2014 INSC 623
- Decided
- 25 September 2019
- Disposal
- Appeal(s) allowed
- Bench
- R F NARIMAN
Holding
A linguistic minority educational institution, once established by a minority community, is entitled under Article 30 to appoint its own teachers and is not bound by Rule 28 of the 1969 Management Rules, and the absence of a statutory declaration of minority status does not defeat that right.
Summary
The Supreme Court examined whether Khalsa Girls High School, a Sikh‑run school in West Bengal, qualifies as a linguistic minority institution under Article 30 of the Constitution and consequently whether Rule 28 of the 1969 Management Rules governs its teacher appointments. The Court held that the school was founded by the Sikh linguistic minority and therefore enjoys the right to appoint teachers of its choice, rendering Rule 28 inapplicable. It further ruled that a statutory declaration of minority status or a report by the Special Officer under Article 350B is not a prerequisite for invoking Article 30 rights. The Court rejected the contention that the school was estopped from claiming minority status after accepting a special constitution under Rule 8(3). Consequently, the Division Bench judgment that bound the school to Rule 28 was set aside and the Single Judge’s order granting the teachers regularisation was affirmed. The appeals were allowed with no order as to costs.
Issues considered
- Whether Khalsa Girls High School is a linguistic minority educational institution within the meaning of Article 30 of the Constitution.
- Whether Rule 28 of the Management of Recognised Non‑Government Institutions (Aided and Unaided) Rules, 1969 applies to a minority institution for the appointment of teachers.
- Whether a declaration by the State or a report under Article 350B is required to claim protection under Article 30.
- Whether the school is estopped from invoking its minority status after accepting a special constitution under Rule 8(3).
- Whether the State may condition grant‑in‑aid on compliance with Rule 28 for a minority institution.
Legislation cited
- Constitution of Indias. Article 30, s. Article 350B
- Gujarat University Act, 1949s. Section 33-A(1)(b)
- Management of Recognised Non‑Government Institutions (Aided and Unaided) Rules, 1969s. Rule 28, s. Rule 32, s. Rule 33, s. Rule 6, s. Rule 8(3)
- National Commission for Minority Educational Institutions Act, 2004
- West Bengal Board of Secondary Education Act
- West Bengal Minorities’ Commission Act, 1996s. Section 11(f), s. Section 2(c)
Subjects
Article 30linguistic minorityminority educational institutionteacher appointmentRule 28grant-in-aidspecial constitutionwaiver of fundamental rightsWest Bengal education lawconstitutional law
Judgment
[2019] 12 S.C.R. 631 631
CHANDANA DAS (MALAKAR) A
v.
THE STATE OF WEST BENGAL & ORS.
(Civil Appeal No. 2858 of 2007 etc.)
SEPTEMBER 25, 2019 B
[R. F. NARIMAN, R. SUBHASH REDDY AND
SURYA KANT, JJ.]
Service Law:
Appointment – Of teachers – In minority institution – Not C
approved by District Inspector of Schools on the ground that the
same was without recommendation by School Service Commission
mandated u/r. 28 of 1969 Rules – Writ petition – Single Judge of
High Court held that the institution being a linguistic minority
institution was entitled u/Art. 30 of the Constitution to appoint its
D
teachers – Division Bench of High Court held that since the
institution was recognized aided institution, management was
bound to follow mandate of r. 28 of the Rules – Appeal to Supreme
Court – Difference of opinion between Judges of Supreme Court
(one agreeing with opinion of Single Judge of High Court while
the other agreeing with Division Bench of High Court) – Matter E
referred to larger Bench – Held: In the facts of the case, it is made
out that the institution is a linguistic minority institution –
Therefore, r. 28 would not apply as the same would result in serious
infraction of the right of the institution u/Art. 30 of the Constitution
to administer the institution with teachers of its own choice –
Management of Recognized Non-Government Institutions (Aided F
and Unaided) Rules, 1969 – r. 28 – West Bengal Board of
Secondary Education Act, 1963 – Constitution of India – Art.
30.
Constitution of India:
G
Art. 30 – Linguistic minority status – Determination of –
Held: Where challenge is to the State law, linguistic minority status
has to be determined State-wise.
Art. 30 – Linguistic minority status – Determination of –
Criteria – Held: Medium of instruction (language) followed in the
H
631
632 SUPREME COURT REPORTS [2019] 12 S.C.R.
A institution would be irrelevant to discover as to whether the
institution in question was founded by a linguistic minority for the
purpose of imparting education to members of its community.
Art. 350B – Special Officer’s Report – In respect of linguistic
minority institution – Absence of – Affect on minority status of
B the institution – Held: Absence of report of the Special Officer
would not lead to the conclusion that no linguistic minority can
claim protection as such u/Art. 30 (1) of the Constitution.
Allowing the appeals, the Court
HELD: 1. A perusal of the Management of Recognized
C
Non-Government Institutions (Aided and Unaided) Rules, 1969
as they stood prior to the 2008 amendment, would show that in
case the provisions of Article 30 of the Constitution apply, further
or other rules for the composition, powers, functions of the
managing committee or committees of such institutions or class
D of institutions would be framed. It is admitted, that no such Rules
have been framed under Rule 33. [Para 12] [646-C-D]
2. By a letter dated 19 th April, 1976, Respondent No.4
institution wrote to the Secretary, West Bengal Board of
Secondary Education asking that it may be declared as a minority
E community institution and the special constitution for the same
may be approved on that basis. By a letter dated 7th May, 1982
from the Secretary, West Bengal Board of Secondary Education
to the Respondent No.4, a special constitution of the managing
committee of the school was set up. It is obvious on a reading
F of this document that whereas Rule 6 of the Rules required only
one representative of the Sikh community to be on the
Management Board, there are three representatives appointed.
Equally, whereas Rule 6 requires that there be six guardian
representatives to be elected, only four are provided. Thus, it
cannot be said that by acceptance of this letter, Respondent No.4
G has, in any manner, unequivocally waived its right to be treated
as a minority institution. On the contrary, the application dated
19th April, 1976, was to recognise it as a minority institution, and
merely because Rule 8(3) of the Rules was purportedly applied,
it does not mean that the minority character of the institution
H was not kept in mind while framing the special constitution for
CHANDANA DAS (MALAKAR) v. STATE OF 633
WEST BENGAL & ORS.
future management of the school. On facts, therefore, it is A
difficult to appreciate how Respondent No.4 can be said to have
waived its right to be treated as a linguistic minority institution
set up by a linguistic minority, namely, the Sikhs in the State of
West Bengal. [Paras 13 and 15] [646-E; 647-D-H; 648-A-C]
3. If Respondent No.4 is a minority institution, Rule 28 of B
Management of Recognized Non-Government Institutions
(Aided and Unaided) Rules, 1969, cannot possibly apply as there
would be a serious infraction of the right of Respondent No.4
to administer the institution with teachers of its choice. [Para
23] [655-B-C] C
Kesavananda Bharati v. State of Kerala (1973) 4 SCC
225 : [1973] 0 Suppl. SCR 1 ; Ahmedabad St.
Xavier’s College Society v. State of Gujarat [1975] 1
SCR 173 ; T.M.A. Pai Foundation v. State of
Karnataka (2002) 8 SCC 481 – followed
D
4. The competent authorities set up by the West Bengal
Board of Secondary Education Act, 1963 do not give any power
to recognise a minority institution. Respondent No.4 was started
as a primary school by the Sikh community living in Kolkata to
impart education to their children who came from Punjab, so that
E
they may learn their mother tongue and religion, ethics etc.
[Para 24] [655-D-E]
N. Ammad v. Emjay High School (1998) 6 SCC 674 :
[1998] 1 Suppl. SCR 453 ; Corporate Educational
Agency v. James Mathew (2017) 15 SCC 595 : [ 2017]
F
6 SCR 498 – relied on.
5. It cannot be said that Respondent No.4 is, in any
manner, estopped from claiming its minority status on the facts
of the present case. Quite apart from this, it is settled law that
the fundamental right under Article 30 cannot be waived. [Para
G
26] [657-G]
Olga Tellis v. Bombay Municipal Corporation (1985)
3 SCC 545 : [1985] 2 Suppl. SCR 51 – followed.
K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 :
[2017] 10 SCR 569 – relied on. H
634 SUPREME COURT REPORTS [2019] 12 S.C.R.
A 6. Article 350B of the Constitution only sets up a Special
Officer for linguistic minorities, to be appointed by the
President, whose duty it is to investigate matters relating to
safeguards provided for linguistic minorities and send reports
to the President of India, which reports the President shall cause
to be laid before each House of Parliament, and send to the
B
Governments of the States concerned. Even a cursory reading
of this Article cannot possibly lead to the conclusion that absent
a report by the Special Officer, no linguistic minority can claim
protection as such under Article 30(1) of the Constitution. [Para
29] [659-C]
C 7. Where the challenge is to a State law, linguistic minority
status would have to be determined State-wise. There can be
no doubt that qua the State of West Bengal, Sikhs are a linguistic
minority vis-à-vis their language, namely, Punjabi, as against the
majority language of the State, which is Bengali. The argument
D on behalf of the State that the school is, in fact, teaching in the
Hindi medium is neither here nor there. What is important is
that the fundamental right under Article 30 refers to the
“establishment” of the school as a linguistic minority institution
which is very clear from the paragraphs 5(a) and 5(b) of letter
dated 19th April, 1976. Therefore, the medium of instruction,
E whether it be Hindi, English, Bengali or some other language
would be wholly irrelevant to discover as to whether the said
school was founded by a linguistic minority for the purpose of
imparting education to members of its community. [Paras 30 and
31] [659-D-H]
F D.A.V. College v. State of Punjab [1971] Supp. SCR
688 ; T.M.A. Pai Foundation v. State of Karnataka
(2002) 8 SCC 481 – followed.
Shiromani Gurudwara Prabandhak Committee v. Shail
Mittal SLP (C) No.2755/2008 – distinguished.
G
Chandana Das (Malakar) v. State of West Bengal
(2015) 12 SCC 140 : Bal Patil v. Union of India (2005)
6 SCC 690 : [2005] 2 Suppl. SCR 459 ; Brahmo
Samaj Education Society v. State of West Bengal
(2004) 6 SC 224 : [ 2004] 2 Suppl. SCR 214 –
H referred to.
CHANDANA DAS (MALAKAR) v. STATE OF 635
WEST BENGAL & ORS.
Case Law Reference A
(2015) 12 SCC 140 referred to Para 1
SLP (C) No. 2755/2008 referred to Para 8
[1973] Suppl. SCR 1 followed Para 17
(1975) 1 SCR 173 followed Para 18 B
(2002) 8 SCC 481 followed Para 19
[1998] 1 Suppl. SCR 453 relied on Para 25
[2017] 6 SCR 498 relied on Para 25
C
[1985] 2 Suppl. SCR 51 followed Para 26
[2017] 10 SCR 569 relied on Para 26
[1971] Supp. SCR 688 followed Para 30
[2005] 2 Suppl. SCR 459 referred to Para 33
D
[2004] 2 Suppl. SCR 214 distinguished Para 33
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2858
of 2007.
From the Judgment and Order dated 23.09.2004 of the High
Court of Judicature at Calcutta in CAN No. 3863 of 2004. E
With
Civil Appeal No. 2859 of 2007.
Siddharth Bhatnagar, Sr. Adv., Ms. Sonia Dube, S. Chakraborty,
Ms. Kanchan Yadav, Anurag Singh, Ms. Harshita Verma, Ms. Surbhi F
Anand, Aditya Sidhra, M/s. Legal Options, Advs. for the Appellant.
Soumya Chakraborty, Rana Mukherjee, Sr. Advs. Suhaan
Mukerji, Ms. Astha Sharma, Ms. Kajal Dalal, Amit Verma, M/S. PLR
Chambers and Co., Ms. Daisy Hannah, Ms. Sreoshi Chatterjee,
Ms. Kanika Sharma, Shekhar Kumar, Advs. for the Respondents. G
The Judgment of the Court was delivered by
R. F. NARIMAN, J.
1. These appeals have been referred to a Three Judge Bench in
view of a disagreement between T.S. Thakur, J. and R. Banumathi, J., H
636 SUPREME COURT REPORTS [2019] 12 S.C.R.
A reported as Chandana Das (Malakar) v. State of West Bengal
(2015) 12 SCC 140. The facts that are necessary in order to decide
these appeals are set out by Thakur, J. in his judgment as follows:
“2. The appellants, it appears, were appointed as teachers on
temporary basis in what is known as Khalsa Girls High School,
B Paddapukur 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
C Recognised Non-Government Institutions (Aided and Unaided),
1969 (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
Nos. 16256 and 16255 of 2003 which were allowed by a learned
D Single Judge of the High Court by his order dated 29-1-2004
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 28-7-1999
E
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
F and District Inspector of Schools preferred CANs Nos. 3861 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 23-9-2004 [State of W.B.
v. Sukhbindar Kaur, 2004 SCC OnLine Cal 570 : (2005) 3 CHN
604]. The High Court held that since the Institution in which the
G
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
H Commission.
CHANDANA DAS (MALAKAR) v. STATE OF 637
WEST BENGAL & ORS. [R. F. NARIMAN, J.]
5. The Division Bench further held that the appellants having A
been appointed beyond the sanctioned staff strength at the
relevant point of time and dehors the Rules could not claim any
approval in their favour. The Court noted that the directions issued
by the Director of School Education, Government of West Bengal
did not permit any appointment without the prior permission of
B
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 employee writ
petitioners to claim any such status on its behalf. The Division
Bench further took the view that once a minority community C
applies for a special constitution under sub-rule (3) 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
D
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.
6. The short question that falls for determination is whether
E
Khalsa Girls High School, Poddapukur 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 F
Act, 1963?
xxx xxx xxx
8. The Institution’s case, on the other hand, is that the same was
and continues to be a linguistic minority institution from its
G
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 19-4-1976 a
detailed memorandum was sent by the Institution to the Secretary,
West Bengal Board of Secondary Education asking for approval H
638 SUPREME COURT REPORTS [2019] 12 S.C.R.
A 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 the West Bengal Minority
Commission in terms of its Order dated 6-10-1989. The affidavit
B
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
C 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 the appointment of teachers in minority
D
institutions, therefore, does not apply in the present case.”
2. The question posed by Thakur, J. in paragraph 6 of the
judgment was answered stating:
“21. It is unnecessary to multiply decisions on the subject for
E 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
F 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
G
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 4 Institution
H is held to be a minority institution entitled to the protection of
CHANDANA DAS (MALAKAR) v. STATE OF 639
WEST BENGAL & ORS. [R. F. NARIMAN, J.]
Articles 26 and 30 of the Constitution of India the right to appoint A
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 B
the Director or by following the mechanism generally prescribed
for institutions that do not enjoy the minority status.
22. The view taken by the Division Bench of the High Court
that appointments of the appellants were dehors the Rules
inasmuch as they were not made by the School Service C
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.
xxx xxx xxx D
24. 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 E
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.
F
25. 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- G
in-aid against their posts.
26. 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 the learned counsel for the appellants that H
640 SUPREME COURT REPORTS [2019] 12 S.C.R.
A 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
B
appointments could be regularised. To that extent the relief
prayed for by the appellants shall be suitably moulded.”
3. Banumathi, J. delivered a separate judgment disagreeing with
these conclusions. She agreed with the Division Bench judgment of the
Calcutta High Court, which had upset the Single Bench judgment of
C
that Court, and held as follows:
“34. The impugned judgment [State of W.B. v. Sukhbindar Kaur,
2004 SCC OnLine Cal 570 : (2005) 3 CHN 604] of the Division
Bench of the Calcutta High Court is as under: (Sukhbindar
Kaur case [State of W.B. v. Sukhbindar Kaur, 2004 SCC
D
OnLine Cal 570 : (2005) 3 CHN 604] , SCC OnLine Cal para
4)
“4. … In such view of the matter, a Constitution permitted
under sub-rule (3) of Rule 8 of the said Rules cannot be in
relation to minority community institutions. That has been
E
amply cleared by framing Rule 33 in the Management Rules
which specifically deals with institutions entitled to protection
of Articles 26 and 30. It authorises the State Government
to make special rules for constitution of the Managing
Committee of such institutions. The moment a minority
F community applies for a special constitution under sub-rule
(3) 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.”
G In my considered view, the above reasoning of the Calcutta High
Court is to be affirmed for the reasons indicated by me herein.”
4. The main grounds for disagreement were two. In paragraphs
36 to 40, the learned Judge found that in the absence of any order by
the competent authority under the West Bengal Board of Secondary
H Education Act granting minority status to the Respondent No.4 school,
CHANDANA DAS (MALAKAR) v. STATE OF 641
WEST BENGAL & ORS. [R. F. NARIMAN, J.]
the said school cannot claim to be a minority institution for the purpose A
of Article 30 and is, therefore, bound, being an aided institution, by the
1969 Rules, in particular Rule 28 thereof. The other plank of the decision
was contained in paragraphs 43 and 51, stating that the school having
accepted the special constitution in terms of Rule 8(3) of the Rules,
the school is estopped from contending that it is a minority institution
B
governed by special rules to be framed by the State under Rule 33 of
the Rules.
5. Shri Siddharth Bhatnagar, learned Senior Advocate appearing
on behalf of the Appellants, has taken us through the impugned High
Court judgment as well as the judgments of Thakur, J. and Banumathi,
J. He also read Rules 6, 8(3), 28 and 33 of the Rules together with C
the request dated 19th April, 1976 of the Khalsa Girls School, stating
that it was formed on behalf of the Sikh religious and linguistic minority
in the State of West Bengal and to accord it the status of a minority
institution. He then relied upon an order dated 7th May, 1982 of the
West Bengal Board of Secondary Education, in which, despite approving D
of a special constitution for future management of the school, was done
in deviation of Rule 6 in recognition of the fact that it was a minority
institution. He also brought to our notice the fact that since 2008, Rule
32(c) is now substituted as follows:
“32. Rules not to apply to certain Institutions— Nothing in E
these rules shall apply to -
xxx xxx xxx
(c) the non-Government aided Educational Institution established
and administered by a Minority referred to in clause (c) of
Section 2 of the West Bengal Minorities’ Commission Act, 1996 F
(West Bengal Act XVI of 1996);
xxx xxx xxx
Explanation :- For removal of any doubt, it is hereby declared
that the State Government may, for the purpose of ensuring quality
education, access and equity, on an application made by any non- G
Government aided Educational Institution referred to in clause
(c), make rules under the provisions of the said Act for the
composition, powers, functions etc of the Committee of such
Institution;”
As a consequence, Rule 33 has been omitted. H
642 SUPREME COURT REPORTS [2019] 12 S.C.R.
A 6. He then took us through Section 2(c) of the West Bengal
Minorities’ Commission Act, 1996, which states as follows:
“2. Definitions - In this Act, unless the context otherwise
requires,-
xxx xxx xxx
B
(c) “Minority”, for the purpose of this Act, means a community
based on religion such as Muslim, Christian, Sikh, Buddhist, or
Zoroastrian (Parsee), and includes -
(i) such other minority as the Central Government may notify
C under clause (c) of section 2 of the National Commission
for Minorities Act, 1992, or .
(ii) such other minority based on language within the purview
of article 29 of the Constitution of India (hereinafter referred
to as the Constitution) as the State Government may, by
D notification, specify from time to time;”
On facts, he argued that it was wholly incorrect to hold that the
management of the school had given up its right to be a minority
institution. He also argued, based on several judgments, that the
fundamental right under Article 30 of the Constitution of India cannot
be waived. He also took us through various judgments to show that
E
though Respondent No.4 school was an aided institution, Rule 28 qua
appointment of teachers would not be applicable to it as it is a minority
institution. He also cited judgments before us to show that it was
unnecessary to first obtain a declaration from the competent authority
that the school is a minority institution as any such declaration would
F only be a recognition of a pre-existing right, if the institution was, in
fact, set up by the minority community for the minority community.
7. Shri Rana Mukherjee, learned Senior Advocate appearing on
behalf of Respondent No.4 school, broadly echoed Shri Bhatnagar’s
arguments and also took us through the letter dated 19th April, 1976 to
G show that Respondent No.4 school was set up purely as a linguistic
minority school in the State of West Bengal. Hence, he supported the
prayer of the teachers that they be regularised against vacancies that
have since arisen.
8. Shri Soumya Chakraborty, learned Senior Advocate appearing
H on behalf of the State, strongly relied upon the judgment of Banumathi,
CHANDANA DAS (MALAKAR) v. STATE OF 643
WEST BENGAL & ORS. [R. F. NARIMAN, J.]
J. and, in addition, argued that Article 350B would make it clear that A
the institution must first be declared to be a minority institution before
it can avail of the fundamental right under Article 30. He added that in
any case the medium of instruction was Hindi and, therefore, being the
national language, the institution could not be said to cater to the needs
of the minority community. He also made a fervent plea to refer the
B
matter to a larger Bench, given the fact that a Division Bench of this
Court had in Shiromani Gurudwara Prabandhak Committee v. Shail
Mittal SLP (C) No. 2755/2008 by an order dated 18th November, 2010
referred a similar matter to be heard along with other matters by a
Constitution Bench.
C
9. Before embarking on the questions raised in these appeals, it
is important to first advert to the West Bengal Board of Secondary
Education Act, 1963. It is enough to state that this Act establishes the
West Bengal Board of Secondary Education and various Committees
and Regional Examination Councils and then lays down their powers.
Suffice it to say that it is no part of the powers and duties of the Board D
or of any authority set up therein to declare that a particular institution
is, or is not, a minority institution.
10. It is now necessary to advert to the Management of
Recognised Non-Government Institutions (Aided and Unaided) Rules,
1969. Rule 6 is relevant and is set out hereinbelow as follows: E
“6. Composition of the Committee of an Institution other
than that sponsored by the State Government:
The Committee shall consist of the following members:-
(i) one founder to be chosen in the manner provided in Rule F
6A;
(ii) one Life Member, if any, to be selected or nominated in
the manner laid down in Rule 6A;
(iii) six guardians of whom two shall be woman in case of a
girls school in the case of institutions having classes XI and G
XII recognized by the West Bengal Council of Higher
Secondary Education and/or X-Class High Schools and
three guardians in the case of Junior High Schools, to be
elected or nominated, as the case may be, in the manner
laid down in sub-rule (2) of Rule 6A; H
644 SUPREME COURT REPORTS [2019] 12 S.C.R.
A (iv) one person interested in education (to be co-opted) in the
manner laid down in clause (i) of sub-rule (3) of Rule 6A;
Provided that in the case of an institution located within
the jurisdiction of a Panchayet, one person interested in
education shall be the nominee of the Local Panchayet Samity.
B The person so nominated shall be a resident of the locality within
the jurisdiction of the said Panchayet Samity;
(v) three teaching staff except the Head of an Institution and
one non-teaching staff in the case of an institution with
Higher Secondary Classes (XI and XII) recognised by the
C West Bengal Council of Higher Secondary Education and/
or a X-Class High School and two members from among
the teaching and non-teaching staff in the case of a junior
High School, to be elected in the manner prescribed in
Clause (i) of sub-rule (4) of Rule 6A;
D (vi) one member of the Committee shall be nominated by the
Director or by an officer authorised by him in this behalf;
(vii) Head of the Institution (ex-officio).
Provided that no person shall be eligible to represent
E more than one category.
Rule 8(3) is important for our purpose and states as follows:
“8. Power of Executive Committee to approve and
Supersede Committee, to appoint Administrator or Ad-hoc
Committee and to grant special constitution;
F
xxx xxx xxx
(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
G
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
H members of the teaching and the non-teaching staff, guardians
CHANDANA DAS (MALAKAR) v. STATE OF 645
WEST BENGAL & ORS. [R. F. NARIMAN, J.]
and the member nominated by the Director or an officer A
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 B
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 C
for such period as may be specified in the order.”
Rule 28(1)(i), which is sought to be applied to Respondent No.4,
states as follows:
“28. Powers of Committee - (1) In an aided institution the
Committee shall, subject to the provisions of any Grant-in-aid D
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 E
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 F
sought for within a fortnight from the date of decision of the
committee in this behalf;”
Rules 32 and 33 are also important and state as follows:
“32. Rules not to apply to certain Institutions—Nothing in
G
these rules shall apply to the Institutions maintained and managed
by the State Government, the Union Government or the Railway
Board or the schools managed under the provisions of the St.
Thomas’ School Act, 1923, (Bengal Act XII of 1923) or to any
other Institution as may be specified by the State Government
by order, made in this behalf from time to time. H
646 SUPREME COURT REPORTS [2019] 12 S.C.R.
A 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
B
the Managing Committee or Committees of such Institution or
class of Institutions.”
11. These Rules have since been amended by a notification dated
th
29 August, 2008, as has been noticed hereinabove. And Rule 33 has
been omitted altogether.
C
12. A perusal of the Rules, as they stood prior to the 2008
amendment, would show that in case the provisions of Article 30 of
the Constitution apply, further or other rules for the composition, powers,
functions of the managing committee or committees of such institutions
or class of institutions would be framed. It is admitted, as has been
D noticed in the judgment of Thakur, J. that no such Rules have been
framed under Rule 33.
13. At this juncture, it may be noted that by a letter dated 19th
April, 1976, Respondent No.4 wrote to the Secretary, West Bengal
Board of Secondary Education asking that it may be declared as a
E minority community institution and the special constitution for the same
may be approved on that basis. What is of importance is what is stated
in paragraph 5(a) and 5(b) of the said letter, which is set out
hereinbelow:
“5. The brief History of the said Khalsa High School is as follows:-
F
(a) In the year 1932 this institution was started in the shape of a
Khalsa Primary School by the Sikh Community living in Calcutta
to impart education to their children who came from Punjab
where they had ample opportunities to learn their mother tongue
viz: Punjabi and to impart religious, ethical and moral training in
G soothing atmosphere.
(b) Earlier to this in the year 1930, the late Reverend Sant
Mastan Singh started a small Pathashala at 573, Paddopukur
Road, Calcutta, with about twenty children to teach them Punjabi,
in Gurumukh Script. In 1932, Baba Harnam Singh Kaunka was
H made in charge of that School which was becoming popular day
CHANDANA DAS (MALAKAR) v. STATE OF 647
WEST BENGAL & ORS. [R. F. NARIMAN, J.]
by day among the Sikh Community. After some time he opened A
a new School at 16, Paddapukur Road, Calcutta. By this time
the population of the Sikhs was increasing in Calcutta. A large
number of Sikh Children were facing serious difficulties in the
absence of their own proper School. The urgent need of opening
a School of their own choice came to the forefront and it was
B
unanimously resolved by the Sikhs in a congregation to start a
Khalsa Primary School without any loss of time. The social and
religious workers left no stone unturned to get a suitable building
for this purpose. After intense endeavours the building situated
at No. 75, Bakul Begal Road, Calcutta was acquired on rent to
start with. Thus, Khalsa Primary School was inaugurated on the C
1st November, 1933, by Sardar B.R. Singh, Head of Eastern
Railway. He donated a handsome amount to the School on this
pious occasion. Baba Harnam Singh Kanuka threw his lot with
this venture of the Sikh Community in toto.”
14. By a letter dated 7th May, 1982 from the Secretary, West D
Bengal Board of Secondary Education to the Respondent No.4, a special
constitution of the managing committee of the school was set up as
follows:
1. Representative (s) of :-
(i) Bara Sikh Sangat 1(one) E
(ii) Sri Guru Singh Sabha 1(one)
(iii) Gurudwara Sant Kutia 1(one)
2. Guardians’ representative (to be elected) 4
F
3. Members of the teaching & non-teaching
Staff (to be jointly elected) 4(3+1)
4. P.I.E. (as per provisions of the amended rules 1
5. Head of the institution (ex-officio) 1
G
6. Departmental Nominee 1
14
15. It is obvious on a reading of this document that whereas Rule
6 required only one representative of the Sikh community to be on the
Management Board, there are three representatives appointed. Equally, H
648 SUPREME COURT REPORTS [2019] 12 S.C.R.
A whereas Rule 6 requires that there be six guardian representatives to
be elected, only four are provided for by this letter. Thus, it cannot be
said that by acceptance of this letter, Respondent No.4 has, in any
manner, unequivocally waived its right to be treated as a minority
institution. On the contrary, the application dated 19th April, 1976, was
to recognise it as a minority institution, and merely because Rule 8(3)
B
of the Rules was purportedly applied, it does not mean that the minority
character of the institution was not kept in mind while framing the
special constitution for future management of the school. On facts,
therefore, it is difficult to appreciate how the Respondent No.4 can be
said to have waived its right to be treated as a linguistic minority
C institution set up by a linguistic minority, namely, the Sikhs in the State
of West Bengal.
16. It is important at this juncture to first set out Article 30 of
the Constitution of India. Article 30(1) states:
“30. Right of minorities to establish and administer
D
educational institutions -
(1) All minorities, whether based on religion or language, shall
have the right to establish and administer educational institutions
of their choice.”
E 17. The historical reasons for enacting Article 30(1) have been
set out in some detail in the judgment of Shelat, J. and Grover, J. in
Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 as
follows:
“535-A - It may be recalled that as regards the minorities the
F Cabinet Mission had recognised in their report to the British
Cabinet on May 6, 1946 only three main communities; general,
Muslims and Sikhs. General community included all those who
were non- Muslims or non-Sikhs. The Mission had recommended
an Advisory Committee to be set up by the Constituent Assembly
which was to frame the rights of citizens, minorities, tribals and
G
excluded areas. The Cabinet Mission statement had actually
provided for the cession of sovereignty to the Indian people
subject only to two matters which were: (1) willingness to
conclude a treaty with His Majesty’s Government to cover
matters arising out of transfer of power and (2) adequate
H provisions for the protection of the minorities. Pursuant to the
CHANDANA DAS (MALAKAR) v. STATE OF 649
WEST BENGAL & ORS. [R. F. NARIMAN, J.]
above and paras 5 and 6 of the Objectives Resolution the A
Constituent Assembly set up an Advisory Committee on January
24, 1947. The Committee was to consist of representatives of
muslims, the depressed classes or the scheduled castes, the Sikhs,
Christians, Parsis, Anglo-Indians, tribals and excluded areas
besides the Hindus. As a historical fact it is safe to say that at a
B
meeting held on May 11, 1949 a resolution for the abolition of all
reservations for minorities other than the scheduled castes found
whole hearted support from an overwhelming majority of the
members of the Advisory Committee. So far as the scheduled
castes were concerned it was felt that their peculiar position would
necessitate special reservation for them for a period of ten years. C
It would not be wrong to say that the separate representation of
minorities which had been the feature of the previous
Constitutions and which had witnessed so much of communal
tension and strife was given up in favour of joint electorates in
consideration of the guarantee of fundamental rights and
D
minorities’ rights which it was decided to incorporate into the new
Constitution.”
(Emphasis supplied)
18. This was further fleshed out in the judgment of Khanna, J.
in Ahmedabad St. Xavier’s College Society v. State of Gujarat E
(1975) 1 SCR 173 as follows:
“Before we deal with the contentions advanced before us and
the scope and ambit of Article 30 of the Constitution, it may be
pertinent to refer to the historical background. India is the second-
most populous country of the world. The people inhabiting this F
vast land profess different religions and speak different
languages. Despite the diversity of religion and language, there
runs through the fabric of the nation the golden thread of a basic
innate unity. It is a mosaic of different religions, languages and
cultures. Each of them has made a mark on the Indian polity
G
and India today represents a synthesis of them all. The closing
years of the British rule were marked by communal riots and
dissensions. There was also a feeling of distrust and the demand
was made by a section of the Muslims for a separate homeland.
This ultimately resulted in the partition of the country. Those who
led the fight for independence in India always laid great stress H
650 SUPREME COURT REPORTS [2019] 12 S.C.R.
A on communal amity and accord. They wanted the establishment
of a secular State wherein people belonging to the different
religions should all have a feeling of equality and non-
discrimination. Demand had also been made before the partition
by sections of people belonging to the minorities for reservation
of seats and separate electorates. In order to bring about
B
integration and fusion of the different sections of the population,
the framers of the Constitution did away with separate electorates
and introduced the system of joint electorates, so that every
candidate in an election should have to look for support of all
sections of the citizens. Special safeguards were guaranteed for
C the minorities and they were made a part of the fundamental rights
with a view to instil a sense of confidence and security in the
minorities. Those provisions were a kind of a Charter of rights
for the minorities so that none might have the feeling that any
section of the population consisted of first-class citizens and the
others of second-class citizens. The result was that minorities
D
gave up their claims for reservation of seats.
xxx xxx xxx
A liberal, generous and sympathetic approach is reflected in the
Constitution in the matter of the preservation of the right of
E minorities so far as their educational institutions are concerned…
The minorities are as much children of the soil as the majority
and the approach has been to ensure that nothing should be done
as might deprive the minorities of a sense of belonging, of a
feeling of security, of a consciousness of equality and of the
F awareness that the conservation of their religion, culture, language
and script as also the protection of their educational institutions
is a fundamental right enshrined in the Constitution. The same
generous, liberal and sympathetic approach should weigh with
the courts in construing Articles 29 and 30 as marked the
deliberations of the Constitution-makers in drafting those articles
G and making them part of the fundamental rights. The safeguarding
of the interest of the minorities amongst sections of population
is as important as the protection of the interest amongst
individuals of persons who are below the age of majority or are
otherwise suffering from some kind of infirmity. The Constitution
H and the laws made by civilised nations, therefore, generally
CHANDANA DAS (MALAKAR) v. STATE OF 651
WEST BENGAL & ORS. [R. F. NARIMAN, J.]
contain provisions for the protection of those interests. It can, A
indeed, be said to be an index of the level of civilisation and
catholicity of a nation as to how far their minorities feel secure
and are not subject to any discrimination or suppression.”
(Emphasis supplied)
19. This was reiterated in the concurring judgment of Quadri, J. B
in T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481
as follows:
“301. …The founding fathers of the Constitution were alive to
the ground realities and the existing inequalities in various sections
of the society for historical or other reasons and provided for C
protective discrimination in the Constitution with regard to
women, children, socially and educationally backward classes of
citizens, Scheduled Castes and Scheduled Tribes by enabling the
State to make special provision for them by way of reservation
as is evident from clauses (3) and (4) of Article 15 and clauses D
(4) and (4-A) of Article 16 of the Constitution. The apprehensions
of religious minorities and their demand for separate electorates,
were settled by providing freedom of conscience and free
profession, practise and propagation of religion for all the citizens
under Articles 25, 26 and 28 which take care of the religious rights
of minorities equally; by special provisions their right to conserve E
a distinct language, script or culture is guaranteed as a
fundamental right in Article 29; further, all minorities, whether
based on religion or language, are conferred an additional
fundamental right to establish and administer educational
institutions of their choice as enshrined in Article 30 of the F
Constitution. The right under Article 30(1) is regarded so
sacrosanct by Parliament in its constituent capacity that when
by operation of the law of the land — Land Acquisition Act —
compensation awarded for acquisition of a minority educational
institution was to result in restricting or abrogating the right
guaranteed under clause (1) of Article 30, it by the Constitution G
(Forty-fourth) Amendment Act inserted clause (1-A) in Article
30. It provides that Parliament in the case of a Central legislation
or a State Legislature in the case of State legislation shall make
a specific law to ensure that the amount payable to the minority
educational institutions for the acquisition of their property will H
652 SUPREME COURT REPORTS [2019] 12 S.C.R.
A not be such as will in any manner impair their functioning. A
Constitution Bench of this Court in interpreting clause (1-A) of
Article 30 in Society of St. Joseph’s College v. Union of India
[(2002) 1 SCC 273] observed thus: (SCC p. 278, para 7)
“7. Plainly, Parliament in its constituent capacity apprehended that
B minority educational institutions could be compelled to close down
or curtail their activities by the expedient of acquiring their
property and paying them inadequate amounts in exchange. To
obviate the violation of the right conferred by Article 30 in this
manner, Parliament introduced the safeguard provision in the
Constitution, first in Article 31 and then in Article 30.”
C
20. The Nine Judge Bench in St. Xavier’s (supra), by a majority
of 7:2, held that Section 33-A(1)(b) of the Gujarat University Act, 1949
as amended by the Gujarat University (Amendment) Act, 1972, would
not apply to minority institutions. Section 33-A(1)(b) of the said Act is
set out as follows:
D
“33-A. (1) Every college (other than a Government college or a
college maintained by the Government) affiliated before the
commencement of the Gujarat University (Amendment) Act,
1972 (hereinafter in this section referred to as ‘such
commencement’)—
E
xxx xxx xxx
(b) that for recruitment of the Principal and members of the
teaching staff of a college there is a selection committee of the
college which shall include—
F (1) in the case of recruitment of the Principal, a representative
of the University nominated by the Vice-Chancellor, and
(2) in the case of recruitment of a member of the teaching staff
of the college, a representative of the University nominated by
the Vice-Chancellor and the Head of the Department, if any,
G concerned with the subject to be taught by such member.”
21. Ray, C.J. adverted to the aforesaid provision and stated that
at the core of the fundamental right of Article 30 is the right to
administer which includes the right of the minority institutions to choose
its teachers (see pages 194 and 196). Having held this, the learned Chief
H Justice set out the argument of the Intervenors thus:
CHANDANA DAS (MALAKAR) v. STATE OF 653
WEST BENGAL & ORS. [R. F. NARIMAN, J.]
“The provisions contained in Section 33-A(1)(b) of the Act were A
not challenged by the petitioners. The interveners challenged
those provisions. The settled practice of this Court is that an
intervener is not to raise contentions which are not urged by the
petitioners. In view of the fact that notices were given to minority
institutions to appear and those institutions appeared and made
B
their submissions a special consideration arises here for
expressing the views on Section 33-A(1)(b) of the Act. The
provisions contained in Section 33-A(1)(b) of the Act are that
for the recruitment of the Principal and the members of the
teaching staff of a college there is a selection committee of the
college which shall consist, in the case of the recruitment of a C
Principal, of a representative of the university nominated by the
Vice-Chancellor and, in the case of recruitment of a member of
the teaching staff of the college, of a representative of the
university nominated by the Vice-Chancellor and the Head of the
Department if any for subjects taught by such persons. The
D
contention of the interveners with regard to these provisions is
that there is no indication and guidance in the Act as to what
types of persons could be nominated as the representative. It was
suggested that such matters should not be left to unlimited power
as to choice. The provisions contained in Section 33-A(1)(b)
cannot therefore apply to minority institutions.” E
This argument was accepted stating that the said Section cannot,
therefore, be applied to minority institutions as it would otherwise violate
the fundamental right contained in Article 30(1).
22. This view was concurred in by Khanna, J. as follows:
F
“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 G
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 H
654 SUPREME COURT REPORTS [2019] 12 S.C.R.
A 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). In the case of
Rev. Father W. Proost this Court while dealing with Section 48-
A of the Bihar Universities Act observed that the said provision
completely took away the autonomy of the governing body of
B
the college and virtually vested the control of the college in the
University Service Commission. The petitioners in that case were,
therefore, held entitled to the protection of Article 30(1) of the
Constitution. The provisions of that section have been referred
to earlier. According to the section, subject to the approval of
C University appointment, dismissals, removals, termination of
service or reduction in rank of teachers of an affiliated college
not belonging to the State Government would have to be made
by the governing body of the college on the recommendation of
the University Service Commission. The section further provided
that the said Commission would be consulted by the governing
D
body of a college in all disciplinary matters affecting teachers of
the college and no action would be taken against or any
punishment imposed upon a teacher of a college otherwise than
in conformity with the findings of the Commission.”
Likewise, Jagan Mohan Reddy, J. also held Section 33-A(1)(b)
E
inapplicable to minority institutions. The concurring judgment of Mathew,
J. and Chandrachud, J. agreed with the learned Chief Justice that the
aforesaid provision could not possibly apply to a minority institution as
follows:
“It is upon the principal and teachers of a college that the tone
F
and temper of an educational institution depend. On them would
depend its reputation, the maintenance of discipline and its
efficiency in teaching. The right to choose the principal and to
have the teaching conducted by teachers appointed by the
management after an overall assessment of their outlook and
G philosophy is perhaps the most important facet of the right to
administer an educational institution. We can perceive no reason
why a representative of the University nominated by the Vice-
Chancellor should be on the Selection Committee for recruiting
the Principal or for the insistence of head of the department
H besides the representative of the University being on the Selection
CHANDANA DAS (MALAKAR) v. STATE OF 655
WEST BENGAL & ORS. [R. F. NARIMAN, J.]
Committee for recruiting the members of the teaching staff. So A
long as the persons chosen have the qualifications prescribed by
the University, the choice must be left to the management. That
is part of the fundamental right of the minorities to administer
the educational institution established by them.”
23. A reading of the aforesaid judgment would leave no manner B
of doubt that if Respondent No.4 is a minority institution, Rule 28 of
the Rules for Management of Recognized Non-Government Institutions
(Aided and Unaided) 1969, cannot possibly apply as there would be a
serious infraction of the right of Respondent No.4 to administer the
institution with teachers of its choice. C
24. We now go to the question as to whether it is necessary that
there be a declaration as to status of the minority institutions by the
competent authority under the West Bengal Board of Secondary
Education Act, 1963 before it can claim the status of being a minority
institution. We have already noticed that the competent authorities set D
up by the aforesaid Act do not give any power to recognise a minority
institution. For this reason, it is difficult to agree with the conclusion
stated in paragraph 40 of judgment of Banumathi, J. Further, the letter
dated 19th April, 1976 would show that Respondent No.4 was started
as a primary school by the Sikh community living in Kolkata to impart E
education to their children who came from Punjab, so that they may
learn their mother tongue and religion, ethics etc. As a matter of fact,
this aspect of the matter is no longer res integra.
25. In N. Ammad v. Emjay High School (1998) 6 SCC 674,
this Court held: F
“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 G
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.” H
656 SUPREME COURT REPORTS [2019] 12 S.C.R.
A 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
B
contention that the School can claim protection only after the
Government declared it as a minority school on 2-8-1994.”
This statement of the law was then followed by Corporate
Educational Agency v. James Mathew (2017) 15 SCC 595 as
follows:
C
“7. As far as the validity of the declaration of minority status is
concerned, this Court in N. Ammad v. Emjay High School [N.
Ammad v. Emjay High School, (1998) 6 SCC 674 : 1 SCEC
732] has held that the certificate of the declaration of minority
status is only a declaration of an existing status. Therefore, there
D
is no question of availability of the status only from the date of
declaration. What is declared is a status which was already in
existence.
xxx xxx xxx
E 10. Chapter IV deals with functions and powers of the
Commission. Under Section 11(f), the Commission has been
vested with the power rather the mandate to decide all questions
relating to the status of any institution as a minority educational
institution and declare its status as such. Section 11 of the Act is
quoted hereunder:
F
“11. Functions of Commission.—Notwithstanding anything
contained in any other law for the time being in force, the
Commission shall—
(a) advise the Central Government or any State Government
G on any question relating to the education of minorities that
may be referred to it;
(b) enquire, suo motu, or on a petition presented to it by any
minority educational institution, or any person on its behalf
into complaints regarding deprivation or violation of rights
H of minorities to establish and administer educational
CHANDANA DAS (MALAKAR) v. STATE OF 657
WEST BENGAL & ORS. [R. F. NARIMAN, J.]
institutions of their choice and any dispute relating to A
affiliation to a University and report its finding to the
appropriate Government for its implementation;
(c) intervene in any proceeding involving any deprivation or
violation of the educational rights of the minorities before a
court with the leave of such court; B
(d) review the safeguards provided by or under the Constitution,
or any law for the time being in force, for the protection of
educational rights of the minorities and recommend
measures for their effective implementation;
C
(e) specify measures to promote and preserve the minority
status and character of institutions of their choice established
by minorities;
(f) decide all questions relating to the status of any
institution as a minority educational institution and
D
declare its status as such;
(g) make recommendations to the appropriate Government for
the effective implementation of programmes and schemes
relating to the minority educational institutions; and
(h) do such other acts and things as may be necessary, E
incidental or conducive to the attainment of all or any of
the objects of the Commission.”
(emphasis supplied)
11. Therefore, after the introduction of the National Commission
for Minority Educational Institutions Act, 2004, it is also within F
the jurisdiction and mandate of the National Commission to issue
the certificate regarding the status of a minority educational
institution. Once the Commission thus issues a certificate, it is a
declaration of an existing status.”
26. We have held that it cannot be said that Respondent No.4 G
is, in any manner, estopped from claiming its minority status on the facts
of this case. Quite apart from this, it is settled law that the fundamental
right under Article 30 cannot be waived (See St. Xavier’s (supra) at
pages 260 to 262 per Mathew, J.; Olga Tellis v. Bombay Municipal
Corporation, (1985) 3 SCC 545 and 569 to 571.) In the recent H
658 SUPREME COURT REPORTS [2019] 12 S.C.R.
A judgment in K.S. Puttaswamy v. Union of India (2017) 10 SCC 1,
Chandrachud, J. has echoed this sentiment as follows:
“126. In Behram Khurshid Pesikaka v. State of Bombay (1955)
1 SCR 13: AIR 1955 SC 123 : 1955 Cri LJ 215, Mahajan, C.J.
speaking for the Constitution Bench, noted the link between the
B constitutional vision contained in the Preamble and the position
of the fundamental rights as a means to facilitate its fulfilment.
Through Part III embodies fundamental rights, this was construed
to be a part of the wider notion of securing the vision of justice
of the Founding Fathers and, as a matter of doctrine, the rights
C guaranteed were held not to be capable of being waived.
Mahajan C.J., observed (AIR p. 146, para 52 : SCR pp. 653-
54)
“52. …We think that the rights described as fundamental
rights are a necessary consequence of the declaration in the
D Preamble that the people of India have solemnly resolved
to constitute India into a sovereign democratic republic and
to secure to all its citizens justice, social, economic and
political; liberty of thought, expression, belief, faith and
worship; equality of status and of opportunity.
E These fundamental rights have not been put in the Constitution
merely for individual benefit, though ultimately they come into
operation in considering individual rights. They have been put there
as a matter of public policy and the doctrine of waiver can have
no application to provisions of law which have been enacted as
a matter of constitutional policy” “
F
27. This being the law laid down by this Court, it is clear that
both the reasons given by Banumathi, J. cannot be said to be correct,
as per the law laid down by this Court.
28. Shri Chakraborty, learned Senior Advocate appearing on
G behalf of the State, raised an argument based on Article 350B. The
said Article reads as follows:
“350B. Special Officer for Linguistic Minorities
(1) There shall be a Special Officer for linguistic minorities to
H be appointed by the President.
CHANDANA DAS (MALAKAR) v. STATE OF 659
WEST BENGAL & ORS. [R. F. NARIMAN, J.]
(2) It shall be the duty of the Special Officer to investigate all A
matters relating to the safeguards provided for linguistic minorities
under this Constitution and report to the President upon those
matters at such intervals as the President may direct, and the
President shall cause all such reports to be laid before each
House of Parliament, and sent to the Governments of the States B
concerned.”
29. This Article only sets up a Special Officer for linguistic
minorities, to be appointed by the President, whose duty it is to
investigate matters relating to safeguards provided for linguistic
minorities and send reports to the President of India, which reports the C
President shall cause to be laid before each House of Parliament, and
send to the Governments of the States concerned. Even a cursory
reading of this Article cannot possibly lead to the conclusion that absent
a report by the Special Officer, no linguistic minority can claim protection
as such under Article 30(1) of the Constitution. D
30. In point of fact, in D.A.V. College v. State of Punjab (1971)
Supp. SCR 688, this Court held that where the challenge is to a State
law, linguistic minority status would have to be determined State-wise
(see page 696). This view has been reiterated by the Eleven Judge
Bench in T.M.A. Pai Foundation (supra) (see pages 552, 553 and E
587).
31. There can be no doubt that qua the State of West Bengal,
Sikhs are a linguistic minority vis-à-vis their language, namely, Punjabi,
as against the majority language of the State, which is Bengali. The
argument of the learned counsel appearing on behalf of the State that F
the school is, in fact, teaching in the Hindi medium is neither here nor
there. What is important is that the fundamental right under Article 30
refers to the “establishment” of the school as a linguistic minority
institution which we have seen is very clearly the case, given paragraphs
5(a) and 5(b) of letter dated 19th April, 1976. Therefore, the medium G
of instruction, whether it be Hindi, English, Bengali or some other
language would be wholly irrelevant to discover as to whether the said
school was founded by a linguistic minority for the purpose of imparting
education to members of its community. This argument also, therefore,
must be rejected. H
660 SUPREME COURT REPORTS [2019] 12 S.C.R.
A 32. Seeing the writing on the wall, the learned Senior Advocate
appearing for the State made a fervent plea that we should refer this
matter to the Constitution Bench, following the order in Shiromani
Gurudwara Prabandhak Committee (supra) dated 18th November,
2010.
B 33. This matter arose out of a judgment of the High Court of
Punjab and Haryana dated 17th December, 2007, as per which two
notifications were issued under the Punjab Private Health Sciences
Educational Institutions (Regulation of Admission, Fixation of Fee and
Making of Reservation) Act, 2006, by which the aforesaid Sikh
institutions were declared to be minority institutions within the State of
C Punjab. The High Court had held, following this Court’s judgment in
Bal Patil v. Union of India (2005) 6 SCC 690, that the Sikhs were,
in fact, population-wise the majority community in the State of Punjab,
as a result of which the two notifications were struck down as being
violative of Article 14 of the Constitution of India. It is in this backdrop
D that, by an order dated 18th November, 2010, a Division Bench of this
Court referred this matter to be heard along with other matters by a
Constitution Bench. The other matter concerned Brahmo Samaj
Education Society v. State of West Bengal, (2004) 6 SC 224, in
which a review petition was allowed and directed to be heard by a
Constitution Bench. In the aforesaid case, the challenge that was raised
E was grounded on Article 19(1)(g) of the Constitution of India and was
not directly related to Article 30 of the Constitution of India. Obviously,
this reference order is on different facts and would not avail the
respondent State in the present case.
34. As a result, we are of the view that the judgment of Thakur,
F J. is correct in law. Consequently, the judgment and order of the learned
Single Judge of the Calcutta High Court is correct, and that of the
Division Bench of the Calcutta High Court is set aside. The appeals
are, accordingly, allowed with no order as to costs.
G
Kalpana K. Tripathy Appeals allowed.
H
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