Supreme Court of India
CHANDANA DASversusSTATE OF WEST BENGAL & ORS.
- Citation
- 2014 INSC 623
- Decided
- 11 December 2014
- Disposal
- Matter referred to larger bench
- Bench
- T S THAKUR
Holding
A school recognised as a minority institution under Articles 26 and 30 may appoint its own teachers, and Rule 28 does not govern such appointments.
Summary
The case concerned the Khalsa Girls High School, a Sikh‑run school in Calcutta, and whether it qualified as a minority institution under Articles 26 and 30 of the Constitution, thereby entitled to appoint its own teachers without complying with Rule 28 of the 1969 Management Rules. The appellants, two teachers appointed without the School Service Commission’s recommendation, sought regularisation and salary arrears. The majority held that the school, being a linguistic‑religious minority institution, could exercise its right to appoint teachers of its choice, and that Rule 28 did not apply to minority institutions; consequently the appointments were valid and the respondents were directed to approve them and pay arrears. The dissenting judge disagreed, finding that the school had not been formally recognised as a minority institution and that the appointments violated the Rules. The Supreme Court allowed the appeals in the majority view and referred the matter to a larger bench for resolution of the conflicting opinions.
Issues considered
- The status of Khalsa Girls High School as a minority institution under Articles 26 and 30 of the Constitution.
- Whether a minority institution can appoint teachers without complying with Rule 28 of the Rules of Management of Recognised Non‑Government Institutions (1969).
- Whether the appointments of the two teachers were valid and liable to be regularised and paid arrears.
- The effect of a Special Constitution under Rule 8(3) on the school’s claim of minority status.
Legislation cited
- Constitution of Indias. Art. 26, s. Art. 30
- Rules of Management of Recognised Non‑Government Institutions (Aided and Unaided)s. Rule 28, s. Rule 33, s. Rule 8(3)
- West Bengal Board of Secondary Education Acts. 1963
Subjects
Minority institutionArticle 30Appointment of teachersRule 28Rule 33Special ConstitutionGrant-in-aidWest Bengal education lawConstitutional rightsAdministrative law
Judgment
[2014] 13 $.C.R. 796
A CHANDANA DAS
v.
STATE OF WEST BENGAL & ORS.
(Civil Appeal No. 2858 of 2007)
B
DECEMBER 11, 2014
[T. S. THAKUR AND R. BANUMATHI, JJ.]
Constitution of India, 1950 -Arts 26 and 30 - Khalsa
C Girls High School in Calcutta - Whether the said School, a ·
minority Institution entitled to appoint its own teachers -
Whether the Institution's right to select and appoint teachers
is affected by the provisions of the 1969 Rules - Held: In
view of difference of opinion between two Hon'ble Judges,
D matter referred to larger Bench - Rules of Management of
Recognised Non-Gover.nment Institutions (Aided and
Unaided), 1969 - rr. 28, 33, 8(3) - West Bengal Board of
Secondary Education Act, 1963.
Referring the matters to the larger Bench, the Court
E
Per T.S. Thakur, J.:
HELD: 1.1 Linguistic institution and religious are
entitled to establish and administer their institutions.
Such right of administration includes the right of
F appointing teachers of its choice but does not denude
the state of its power to frame regulations that may
prescribe the coflditions of eligibility for appointment of
such teachers. The regulations can also prescribe
measures to ensure that the institution is run efficiently
G 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 reli~Jious minorities for establishing and running their
educational institutions, such grant cannot be denied
H
796
CHAN DANA DAS v. STATE OF WEST BENGAL 797
to such institutions only because the institutions are A
establis·hed by linguistic or religious minority. Grant of
aid cannot, however, be made subservient to conditions
· which deprive the institution of their substantive right of
administering such institutions. Once respondent No.4-
institution is held to be a minority institution entitled to B
the protection of Articles 26 and 30 of the Constitution,
the right to appoint teachers of its choice who satisfy
the condi~ions of eligibility prescribed for such
appointments under the relevant rules is implicit in their
rights to administer such institutions. Such rights cannot C
then be diluted by the State or its functionaries insisting
that the appointment should be made only with the
approval of the Director or by following the mechanism
generally prescribed for institutions that do not enjoy
0
the minority status. [Para 16][817-H; 818-A-F]
1.2 The view taken by the Division Bench of the
High Col;lrt that appointments of the appellants were
dehors the rules inasmuch as they were not made by
the School Service Commission hence did not qualify E
for approval, cannot be accepted. The mechanism
provided for making appointments under Rule 28 of the
Rules of Manage.ment of Recognised Non-Government
Institutions (Aided and Unaided), 1969 has no application
to minority educational institutions. Placed in F
juxtaposition to Rule 33, 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 G
minority educational institutions, the minority
educational institution in the instant case was entitled
to select and appoint its teachers so long as other
conditions for such appointments, namely, availability
H
798 SUPREME COURT REPORTS [2014] 13 S.C.R.
A of substantive vacancies and the eligibility of the
candidates for such appointments were duly satisfied.
[Para 17, 18][818-F-H; 826-D-F]
1.3 The appellants were both duly qualified for
appointment as teachers in the subject concerned; and
8
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
C against their posts. [Para 19][826-G-H]
1.4 As regards the absence of a sanctioned post as
on the date the appointments were made, it was
submitted that vacancies had subsequently arisen
against which the appointments of the appellants could
D be approved and the salary payable to them from the
date of such vacancies becoming available released. If
that be so, there is no reason why the appointments of
the appellants should not be approved with effect from
the date of such vacancies becoming available against
E which such appointments could be regularised. To that
extent the relief prayed for by the appellants shall
suitably moulded. [Para 20][827-A-C]
1.5 The orders passed by the Division Bench of the
F High Court are set aside and the writ petitions filed by
the appellants are allowed 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. [Para 21][827-D-E]
G The Ahmedabad St. Xavier's College Society and
Anr. v. State of Gujarat and Anr. 1975 (1) SCR 173
: (1974) 1 SCC 717; St. Stephen's College v.
University of Delhi 1991 (3) Suppl. SCR 121 :
(1992) 1 SCC 558; T.M.A Pai Foundation v. State
H
CHANDANADAS v. STATE OF WEST BENGAL 799
of Karnataka 2002 (3) Suppl. SCR 587 : (2002) A
8 SCC 481; Sindhi Education Society and Anr. v.
Chief Secretary, Government of NCT of Delhi and
Ors. 201 o (8) SCR 81 : (201 O) 8 sec 49 -
referred to.
B
Per Banumathi, J.:(Dissenting)
HELD: 1.1 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 C
administration and for getting grant-in-aid. The
concerned educational institution so established by the
religio"us or linguistic minority must be recognized or
·granted the status of minority institution by the
competent authorities. The fourth respondent-school D
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-
schoo I would be minority institution as per law. E
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 is seen from the proceedings dated F
3;10.1985 of the West Bengal Board of Secondary
Education. There is nothing on record to show that the
school was granted minority status by the competent
authority. [Para 9, 11)[831-E-G; 833-B]
1.2 Rule 33 of the Rules for Management of G
Recognized Non-Government Institutions (both Aided
and Unaided) enables the State Government to frame
further rules for certain institutions to which the
provisions of Article 26 or Article 30 of the Constitution
H
800 SUPREME COURT REPORTS [2014] 13 S.C.R.
A of India may apply. 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, the fourth
respondent-school requested for grant of minority
B status in terms of the said rules framed under Rule 33.
The appellants as well as the fourth respondent-school
relied 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
C 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 produced any
document issued by the competent authority, namely,
0
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
E contained in the Rules. 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. In terms of Rule 28, the fourth respondent-
school can only appoint in permanent posts the persons/
F teachers, who have been recommended by the West
Bengal Regional School Service Commission. 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,
G the appellants were appointed dehors Rule 28 and they
cannot seek direction for approval of their appointment
and arrears of salary. [Paras 12, 13)[833-F·H; 834-A-H]
1.3 The fourth respondent-school being a
recognized aided institution is bound by the 1969 Rules.
H
CHAN DANA DAS v. STATE OF WEST BENGAL 801
Permission for Special Constitution was granted to the A
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 B
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. [Para 15][835-G-H; 836-A-C]
c
1.4 Relying upon a document signed by a Member
of West Bengal Minorities Commission, on behalf of
respondent Nos.4 and 5 a feeble attempt was made to
contend that fourth respondent-school was granted
minority status with effect from the said date, i.e. o
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 E
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 material showing that over the years it has been F
appointing its own teachers dehors Rule 28 and that
those appointments were approved by the 0105.
[Para 16][836-C-G]
1.5 Special constitution has been granted to the G
fourth respondent-school in terms of Rule 8(3) of the
Rules. A reading of Rule 8(3) thereon would clearly show
that the institution having special constitution cannot
have a managing committee of its own, but the managing
committee should be in terms of Rule 8(3) of the Rules H
802 SUPREME COURT REPORTS [2014) 13 S.C.R.
A 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
B right is abridged, the choice no longer remains a choice.
The Division Bench of the High Court rightly held that
Rule 8(3) amounts to an imposition abridging the
fundamental right and, therefore, a special constitution
permitted under Rule 8(3) cannot be in relation to
C minority community institutions. [Para- 22][839-E-H;
840-A-C]
1.6 The fourth respondent-school has accepted the
special constitution in terms of Rule 8(3) and it has not
D chosen to challenge the same. The High Court rightly
held that when the fourth respondent-school accepted
the special constitution and did not claim to be a minority
institution, the appellants who are merely employees of
such an institution, cannot contend that the institution
E was a minority institution governed by the Special Rules
framed by the State under rule 33 and entitled to appoint
its own teachers. [Para 23][840-D-F]
1.1 Since the ~ppeliants were appointed dehors the
F 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 order of
G the High Court does not suffer from any infirmity
warranting interference. [Para 24][840-F-G]
T.M.A. Pai Foundation & Ors. v. State ofKarnataka
& Ors. 2002 (3) Suppl. SCR 587: (2002) 8 SCC
481 .;.. held inapplicable.
H
CHAN DANA DAS v. STATE OF WEST BENGAL 803
In Re: The Kera/a Education Bill, 19571959 SCR A
· 995; The Ahmedabad St. Xaviers College Society
&Anr. v. State of Gujarat &Anr. 1975 (1) SCR 173
: (1974) 1 SCC 717; N. Ammad vs. Manager,
Emjay High School & Ors. 1998 (1) Suppl.
SCR 453: (1998) 6 SCC 674- referred to. · B
Case Law Reference:
In the judgment by Thakur, J.
1975 (1) SCR 173 referred to Para 11
1991 (3) Suppl. SCR 121 referred to Para 13
c
2002 (3) Suppl. SCR 587 referred to Para 14
2010 (8) SCR 81 referred to Para 15
In the judgment by Banumathi, J.
D
1959 SCR 995 referred to Para 8
1·975 (1) SCR 173 referred to Para 8
2002 (3) Suppl. SCR 587 held inapplicable Para 9
1998 (1) Suppl. SCR 453 referred to Para 14
E
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2858 of 2007.
From the Judgment and Order dated 23.09.2004 of the
Division Bench of the High Court of Judicature at Calcutta in F
CAN No. 3863 of 2004.
WITH
Civil Appeal No. 2859 of 2007.
Siddharth Bhatnagar, Anurag Singh (For Mis. Legal G
Options), Advs., for the Appellant.
Anip Sachthey, Ms. Shagun Matta, Rana Mukherjee, Ms.
Kasturika Kaumudi, Shekhar Kumar, Advs. for the
Respondents.
H
804 SUPREME COURT REPORTS [2014] 13 S.C.R.
A The Judgments of the Court were delivered by
T. S. THAKUR, J. 1. These appeals arise out of an order
dated 23'd September, 2004 passed by a Division Bench of
the High Court of Calcutta whereby CANs No.3863/2004 and
B 3861 /20Q4 filed by the respondent-State of West Bengal and
others have been allowed, order dated 18th December, 2003
passed by a Single Bench of the High Court set aside and
Writ Petitions No.16256 and 16255 of 2003 filecj by the
appellants herein dismissed.
C 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
lnsp_ector of Schools, Calcutta, according to whom any such
D 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").
E
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
F order dated 29th January, 2004 holding that the institution in
which the appellants were appoint~d 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
G time teachers with effect from 28th July, 1999 and release the
arrears of salary and other service benefits in their favour with
effect from the said date.
4. Aggrieved by the Judgment and Order of the learned
H Single Judge, the State of West Bengal, Director of School
CHAN DANA DAS v. STATE OF WEST BENGAL 805
[T. S. THAKUR, J.]
Education and District Inspector of Schools preferred CAN A
Nos.3861 of 2004 and 3863 of 2004 against the order passed
by the Single Bench which appeals were allowed and disposed
of by a Division Bench of that Court by a common order dated
23rd September, 2004. The High Court held that since the
Institution in which the appellants were appointed was a B
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 C
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 D
Director of School Education, Government of West Bengal did
not permit any appointment without the prior permission of the
Director. No such permission had been, in the case at hand,
obtained from the Director. More importantly, the Division
Bench held that since the Institution had not made any claim to E
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
Ill of Rule 8 of the said Rules it represents to the State F
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 G
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.
H
806 SUPREME COURT REPORTS [2014] 13 S.C.R.
A 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
B Institutions (Aided and Unaided), 1969 framed under the
provisions of the West Bengal Board of Secondary Education
Act, 1963.
6. The respondent-State contends that respondent No.4-
C 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
o 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.
E 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
F for the benefit of Punjabi speaking Sikhs settled in Calcutta
and other parts of West Bengal. The affidavit states that on
19th April, 1976 a detailed Memorandum was sent by institution
to the Secretary, West Bengal, Board of Secondary Education
asking for approval of the Special Constitution for the school
G 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 61h
H
CHAN DANA DAS v. STATE OF WEST BENGAL 807
[T. S. THAKUR, J.]
October, 1989. The affidavit states that minority status of the A
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 B
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 C
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 D
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 E
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 F
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 191h April, 1976 filed by the Institution before the G
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 H
808 SUPREME COURT REPORTS [2014] 13S.C.R.
A benefit of students of that community with the support of the
Board of Management of Bara Sikh Sangat, Sri Guru Singh
Sabha and Gurdwara Sant Rutia. In conclusion, the
representation prayed for the following relief:
"In the circumstances stated above it is humbly
B
requested that under Rule 33 of the Rules framed and
approved by the Government of West Bengal for the
administrati9n of aided recognised institutions our
Institution may be declared as a minority community
c 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
D dated 3rd October, 1985 stating that the permission for a
special constitution granted in terms of Board's letter dated
7th June, 1962 will continue until further orders and asking the
institution to submit an election programme for completion of
re-constitution of the Management Committee within a period
E 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
F 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
G 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
H
CHANDANA DAS v. STATE OF WEST BENGAL 809
[T. S. THAKUR, J.]
special constitution in favour of an Institution or a class A
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
l1im in this behalf, is made according to clause (iii), B
cfause (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 c
. 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 o
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 E
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 F
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 G
Constitution has been approved for it by the Executive
Committee of the Board. This is made clear by Rule 33 of the
Rules which reserves in favour of the State Government the
power to frame rules for institutes governed by the provisions
of Articles 26 and 30 of the Constitution of India. Rule 33 reads: H
810 SUPREME COURT REPORTS [2014] 13S.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
B
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."
C 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
D 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
E institution to make appointment of teachers' against vacancies
within its sanctioned strength. The power to make such
appointments is enjoyed by the Institutes by reason of the
constitutional protection which such institutions enjoy. The legal
F 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
G 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
H
CHAN DANA DAS.v. STATE OF WEST BENGAL 811
[T. S. THAKUR, J.]
rights of the minority to administer the institution. That argument A
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 t_he opinion that the institution
has not been functioning properly. That power when exercised
may no doubt deny to the institution the advantage, if any, B
enjoyed by it under such a constitution; but the minority status
would remain unaffected by any such amendment or
withdrawal. Secondly, because the power to appoint an
administrator or an ad hoc committee may or may not be
exercised even when the special constitution is either C
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
0
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 TheAhmedabad
St. Xavier's College Society and Anr. v. State of Gujarat
andAnr. (1974) 1SCC717where His Lordship observed:
E
·"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 F
.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 G
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 H
812 SUPREME COURT REPORTS (2014] 13 S.C.R.
A vehicle for imparting education. The right to administer
educational institutions can plainlv not include the right
to ma/administer. Regulations can be made to prevent
the housing of an educational institution in unhealthy
surroundings as also to prevent the setting up or
B 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
c the institutions. Regulations made in the true interests
of efficiency of instruction, discipline, health, sanitation,
morality, public order and the like may undoubtedly be
imposed. Such regulations are not restrictions on the
substance of the right which is guaranteed: they secure
D
the proper functioning of the institution, in matters
educational [see observations of Shah, J. in Rev.
Sidhajbhai Sabhai p. 850]. Further as obsenied by
Hidyatullah, C.J. in the case of Very Rev. Mother
Provincial the standards concern the body politic and
E
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
F 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
G 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
H
CHAN DANA DAS v. STATE OF WEST BENGAL 813
[T. S. THAKUR, J.]
right of management, to decline to follow the general A
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 B
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 C
applied to linguistic or religious minorities. This Court by a
majority decision declared that the right of the minorities to
administer educational institutions does not prevent the making
of reasonable regulations in respect of those institutions. Such
regulatioris can be made to prevent housing of an educational D
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 E
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 F
but only secure a proper functioning of the institution in matt<:irs
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 discipHnary G
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
H
814 SUPREME COURT REPORTS [2014) 13 S.C.R.
A 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
B 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
c 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) .... "
D
• 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:
E "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
F
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
G
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 lavys such as laws relating to law and order,
H
CHAN DANA DAS v. STATE OF WEST BENGAL 815
[T. S.THAKUR, J.]
health, hygiene, labour relations, social welfare A
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 B
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 3Q(1 ). "
14. In T.M.A Pai Foundation v. State of Karnataka c
(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 o
the linguistic minority institution to establish and administer its
institution. The co~ditions t~at 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: E
"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 · F
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 G
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
H
816 SUPREME COURT REPORTS [2014] 13S.C.R.
A 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
8
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
c institution can be imposed. All that Article 30(2) states
is that on the ground that an institution is under the
management of a minority, whether based on religion
or language, grant of aid to that educational institution
cannot be discriminated against, if other educational
D 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
E 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
F 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
G 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
H
CHAN DANA DAS v. STATE OF WEST BENGAL 817
[T. S. THAKUR, J.]
permissible for the Government to stop grant-in-aid on the A
ground that the institution had failed to comply with the
conditions or restrictions otherwise impermissible in law
especially in the matter of appointment of teachers of such
minority institution where the institution had satisfied the laid
down criteria and/or eligibility conditions for such B
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, c
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 o
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 E
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 F
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 G
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
H
818 SUPREME COURT REPORTS [2014] 13 S.C.R.
A religious are entitled to establish and administer their
institutions. Such right of administration includes the right of
appointing teachers of its choice but does not denude the state
of its power to frame regulations that may prescribe the
conditions of eligibility for appointment of such teachers. The
B 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 gu.arantee contained in the Constitution to
linguistic and religious minorities for establishing and running
C 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
D 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
E 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
F prescribe~d for instituUons 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
G 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
H the Committee shall, subject to the provisions of any
CHANDANA DAS v. STATE OF WEST BENGAL 819
[T. S. THAKUR, J.]
Grant-in-aid Scheme or Pay Revision Scheme or any A
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 B
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 c
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 D
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 E
in his behalf, the Assistant Headmaster or the Assistant
Headmistress against the vacancy within the
sanctioned strength from among the approved teachers.
(ic) to appoint, in accordance with the directions given
by the Director or any officer authorised by him in his F
behalf, part time teachers on such terms and conditions
as may be specified by the Governmen"t 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 G
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 H
820 SUPREME COURT REPORTS [2014] 13 S.C.R.
A 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
B
other employee, who was in service on the 31s1
December, 1985, but did not opt for the revised scales
of pay introduced with effect from the 1s1 January, 1986,
or having opted for such revised scale of pay,
c subsequently withdraws such option in terms of any
order of the State Govwnment 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;
D Provided that the teacher or the employee concerned
is physically fit and me ii tally 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;
E
Provided further that the teacher or other employee, who
withdraws his option for the revised scales of pay
introduced with effects from the 1s1 January, 1986, in
terms of any order of the State Government in this
F 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
G Pay Revision Scheme, if he agrees to retire in
accordance with the terms of such schemes or at the
age of superannuation for the time being in force, where
there is no such term.
H
CHAN DANA DAS v. STATE OF WEST BENGAL 821
[T. S. THAKUR, J.]
(2) If the officer authorized by the Director under sub- A
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, B
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 c
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 o
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 E
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: F
(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. G
(5) if in any case coming under c/ause(i) or clause(ii) of
sub-rule(4) the Board does not approve the
appointment the appointment or extension of service,
H
822 SUPREME COURT REPORTS [2014] 13 S.C.R.
A as the case may. be, it shall communicate to the
committee the reasons for disapproval.
(6) · where the committee does not recommend
extension of service of a teacher under clause(ii) of sub-
rule(4) it shall record specific reason therefore and the
B
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
c 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
D 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
E 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
F 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
G purpose the committee shall first draw up formal
proceectings 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
H
CHAN DANA DAS v. STATE OF WEST BENGAL 823
[T. S. THAKUR, J.]
submit his explanation, ordinarily, within a fortnight of A
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 B
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 C
removed from service. The committee shall, then, send
· again to the Board all relevant papers including the
explanations submitted by the teacher or the employee
concerned and the recommendations of the committee
D
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 E
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 F
of the persons concerned, the Committee may impose
minor penalties, like 'stoppage of one to three
increments in pay, reductipn of pay in the timescale
and censure, with the prior approval of the Board. In all
such cases, the Committee shall observe the procedure G
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
H
824 SUPREME COURT REPORTS [2014] 13 S.C.R.
A 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
B detEmtion 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
c 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
D
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
E laid down from time to time or where in aided schools
that grant of increment is regulated by grant-in-aid rules;
in accordance with such rules;
(ii) to grant free or half- free studentship to students in
accordance with the procedure laid down from time to
F time, but ordinarily with the ~on sent of the Head of the
Institution.
(iii) to manage funds of_the institutions as per direction
given by the Director from time to time.
G (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
H special holiday for a day or a portion thereof on account
CHAN DANA DAS v. STATE OF WEST BENGAL 825
[T. S. THAKUR, J.]
of death of any prominent' person or for any special A
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
8
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 C
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 D
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 E
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 F
circumstances the time-limit shall be waived beyond
the limit of 1 year;
Provided that where the period of suspension exceeds
90 days, the amount of subsistence allowance shall be
increased after the expiry of 90 days to 75% of the pay G
and allowances drawn immediately before such
suspension;
Provided further that the person concerned shall not
be entitled to any subsistence allowance if he/she H
826 SUPREME COURT REPORTS [2014] 13 S.C.R.
A 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.
B Note: After clause (i) of sub-rule (9) of Rule 28, add the
following note:
"T/1e Committee shall grant leave according to rules
shown in the appendix."
c 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
D of these rules."
1H. 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
E 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
F appointments, namely, availability of substantive vacancies and
the eligibility of the candidates for such appointments were
duly satisfied.
19. It is not, in the instant case, disputed that the
appellants were both duly qualified for appointment as teachers
G 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.
H
CHAN DANA DAS v. STATE OF WEST BENGAL 827
20. The only other question that could possibly arise in A
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 B
salary payable to them from the date of such vacancies
becoming available released. lfthat 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 C
extent the relief prayed for by the appellants shall suitably
moulded.
21. In the result I allow these appeals, set aside the orders
passed by the Division Bench of the High Court and allow the D
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 E
appointments are approved shall also be released in favour
of the appellants.
22. Parties are directed to bear their own costs.
R. BANUMATHI, J. 1. I have gone through the judgment F
prepared by His Lordship Justice T.S. Thakur. But, for the
reasons which I shall indicate, I am unable to agree with the
interpretation placed on Rule 8, Sub-rule (3) of the Rules for
Management of Recognized Non-Government Institutions
(Aided and Unaided) 1969 and other reasonings. G
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.
H
828 SUPREME COURT REPORTS [2014] 13 S.C.R.
A 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
B 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
C 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
D 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
E of Schools (DIOS) for regularization of the services of the
appellants. The appellants approached the High Court by filing
writ petitions (W.P.Nos.10032/96 & 12443/97 by Chand an a
Das & W.P.Nos.10033/96 & 12442/97 by Sukhbinder Kaur)
and those writ petitions were disposed of directing DIOS to
F 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
G 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
H
CHANDANA DAS v. STATE OF WEST BENGAL 829
[R. BANUMATHI, J.]
institutions had the right to choose their teachers and the fourth A
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 B
were appointed de hors the provisions contained in Rule 28 of
the Rules and hence no direction could be issued for approval
of their appointment and payment of their arrears of salary.
Being aggrieved, the appellants have filed these appeals.
c
4. Even though the prayer in the writ petitions is for
direction to the Education Department-DI OS 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 D
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 E
entitled to appoint its own teachers dehors Rule 28 of the Rules.
5. Recognized non-Government lnstitutioris, both aided
and unaided, are governed by the Management of Recognised
Non-Government Institutions (Aided and Unaided) Rules; F
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 G
on approval by the Director or any officer authorized by him.
As per Rule 28 (ia), the appointments are to be made in
accordance with the directions given by the Director only within
the sanctioned strength of teachers and on approval of the
Director or a person authorized by him. Rule 28 thus clearly H
830 SUPREME COURT REPORTS [2014] 13 S.C.R.
A 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
B 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
C notfollowed 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
D 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
E Khalsa Girls High School was formed by the Sikh community.
7. The impugned judgment of .the Division Bench of
the Calcutta High Court is as under:
" .... In such view of the matter, a Constitution permitted
F under Sub-Rule Ill 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
G 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 Ill of Rule 8 of
the said Rules it represents to the State Government that
H
CHAN DANA DAS v. STATE OF WEST BENGAL 831
[R. BANUMATHI, J.]
it is not claiming the status of minority community at least A
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.
B
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 p·rovisions of
Articles 29 and 30 of the Constitution of India, this .Court has
elaborated the scope and ambit of the rights conferred by C
Articles 29 and 30 of the Constitution of India in favour of
religious or linguistic minorities in various judgments, viz. In
Re: The Kera/a Education Bill, 1957 [1959 SCR 995], The
Ahmedabad St. Xaviers College Society & Anr. v. State of
Gujarat & Anr. [(197 4) 1 SCC 717) and T. M.A. Pai Foundation D
& 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 E
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 F
· Community in 1932 and adopted its constitution and bye-laws
in 1945. That Sikh Community being a minority in the State of
West Bengal dqes not necessarily imply that the fourth
respondent-school would be minority institution as per law.
According to the official respondents, minority status was never G
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
H
832 SUPREME COURT REPORTS [2014] 13S.C.R.
A in T.M.A. Pai Foundation's case is not applicable to the fourth
respondent-school.
10. The fourth respondent-school in its representation
dated 19.4.1976, has requested for grant of minority status in
B 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
C 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
D 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,
E which reiads as follows:
"West Bengal Board of Secondary Education
7712, Park Street, Calcutta-16
Dated: 3.10.85
To
F
The Headmistress
Khalsa Girls' High School
7!5, Padmapukur Road,
Calcutta - 20
G Sub: Special Constitution of the Managing Committee
of the School
Madam,
I am directed to state that the permission of Special
H Constitution as per Board's letter No.4311 /G dated
CHAN DANA DAS v. STATE OF WEST BENGAL 833
[R. BANUMATHI, J.]
7.6.62 will be continued until further order... A
Sd/-
for (Secretary)"
As seen from the above, the school was only granted
Special Constitution in terms of the Rules. There is nothing on B
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 c
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 D
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 E
the composition, powers, functions of the Managing
Committee or Committees of such Institution or class of
Institutions."
13. The fourth respondent-school has not produce.d any
document to show that it has been accorded the minority status. F
Though the fourth respondent-school contends that in terms of
Rule 33 of the Rules, no special rules have been framed for
minority community institutions, in its representation referred
above, the fourth respondent-school has requested for grant
of minority status in terms of the said rules framed under Rule G
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·
H
834 SUPREME COURT REPORTS (2014] 13 S.C.R.
A 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,
B 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
C 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:-
D "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
E 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
F
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;"
G 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
H ofsalary.
CHAN DANA DAS v. STATE OF WEST BENGAL 835
[R. BANUMATHI, J.]
14. On behalf of respondent Nos. 4 & 5 it was contended A
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 B
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:-
c
"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 D
not. Declaration by the Government is at best only a
recognition of an existing fact. Article 30(1) of the
Constitution reads thus:
"30. (1) All minorities, whether based on religion or
language, shall have the right to establish and E
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 F
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 G
.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) H
836 SUPREME COURT REPORTS [2014] 13 S.C.R.
A 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
B 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.
c 16. Relying upon a document dated 6.10.1999 signed
by a Member of West Bengal Minorities Commission, on
behalf of respondent Nos.4 and 5 a feeble attempt was made
to contend that fourth respondent-school was granted minority
status with effect from the said date, i.e. 6.10.1999, and by
D 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
E 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
F 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
G issued by the competent authority or material, the fourth
respondent-school cannot claim the status of a minority
institution.
H
CHAN DANA DAS v. STATE OF WEST BENGAL 837
(R. BANUMATHI, J.]
17. Let me now consider the scope of Special A
Constitution in terms of Rule 8(3) of the Rules and when the
fourth respondent-school has accepted the Special
Constitution whether it can still claim minority status.
18. As noticed earlier, the management of both aided B
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 c
provides for manner of formation of a managing committee.
Rule 8 lays down the power of the Executive Committee of the
Board of Secondary Educatiori to grant special constitution
and approve or supersede managing committee, appoint
administrator or ad-hoc committee. 'Special Constitution' D
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. E
19. In terms of Rule 8(3) of the Rules, the Executive
Committee shall have the power to 9pprove the special
constitution of a committee.infavour of any institution: As per
the proviso to Rule 8(3), ifthe Executive Committee is of the F
opinion that a school enjoying special constitution has not been
functioning properly, the Executive Committee may withdraw
such special constitution of the committee and in that event,
the Executive Committee may appoint an administrator or an
ad-hoc Committee. Rule 8(3) of the Rules reads as under: G
"8(3). Power of Executive Committee to approve
and supersede Committee, to appointAdministrator
or ad-hoc Committee and to grant special
constitution:
H
838 SUPREME COURT REPORTS (2014] 13 S.C.R.
A (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
B 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
c 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:
D
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
E 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
F 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
G 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
H
CHAN DANA DAS v. STATE OF WEST BENGAL 839
[R. BANUMATHI, J.]
the absolute choice vested absolutely in the minority A
community.
21. This Court in The Ahmedabad St. Xaviers College
Society (supra) considered the scope of the expression
'administer' and held as under:
B
" ......... 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 C
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 D
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."
E
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 F
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 G
respondent-school in terms of Rule 8(3) of the Rules. A reading
of Rule 8(3) thereon would clearly show that the institution
having special constitution cannot have a managh1g committee
of its own, but the managing committee should be in terms bf
H
840 SUPREME COURT REPORTS [2014] 13 S.C.R.
A 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
B 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
C 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.
D
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
E 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.
F 24. Since the appellants were appointed dehors the
provisions contained in Rule 28 of the Rules, the High Court
rightly held that theit 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
G 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.
H
CHANDANA DAS v. STATE OF WEST BENGAL 841
ORDER A
In view of the divergence of opinion in terms of separate
judgments pronounced by us in these appeals today, the
Registry is directed to place the papers before Hon'ble the
Chief Justice for appeal being assigned to a Three-Judge B
Bench.
Nidhi Jain Matters referred to larger Bench.
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