Holding

A religious denomination may invoke Article 26 to seek Special Rules, but such Rules are not legally effective until duly published as mandated by Section 45 of the Act and Section 24 of the General Clauses Act, and the teachers’ termination orders are invalid and must be set aside.

Summary

The Ramakrishna Vivekananda Mission runs a school affiliated to the West Bengal Board of Secondary Education. Two teachers were terminated for refusing hostel duties, appealed under the Board's regulations, and later withdrew their appeals. The Mission sought, under Article 26, the framing and approval of Special Rules for its school under Rule 33 of the 1969 Rules, which the High Court approved but failed to publish as required by Section 45 of the Act and Section 24 of the West Bengal General Clauses Act. The Supreme Court held that the Special Rules were not validly made due to non‑publication, that the teachers' second set of appeals were not maintainable, and that, despite the procedural defects, the termination orders were invalid. Using its power under Article 142, the Court ordered the State Government to publish the draft Special Rules and directed the reinstatement of the teachers without arrears, subject to an undertaking to perform hostel duties.

Issues considered

The extent of the right of a religious denomination under Article 26( a) to frame Special Rules under Rule 33 of the 1969 Rules.
The legal effect of non‑publication of Special Rules approved by the High Court.
Whether the High Court should have directed publication of the Special Rules under Section 45 of the West Bengal Board of Secondary Education Act and Section 24 of the West Bengal General Clauses Act.
The maintainability of the second set of appeals filed by the teachers after the first appeals were withdrawn.
The validity of the teachers' termination orders in view of the procedural irregularities.

Legislation cited

West Bengal General Clauses Act, 1899s. 24

Subjects

Article 26Special RulesRule 33Termination of teachersAppeal CommitteePublication of rulesArticle 142West Bengal Board of Secondary EducationManagement RulesReinstatement

Judgment

RAMAKRISHNA VIVEKANANDA MISSION A
v.
STATE OF WEST BENGAL AND ORS.

NOVEMBER 29, 2004
B
[Y.K. SABHARWAL AND D.M. DHARMADHIKARI, JJ.]

Constitution of India, 1950:

Article 142-Inherent powers under-Exercise of-Held: Is to be
exercised (o do complete justice to the parties-On facts in view ofpeculiar C
situation and there being no substantive proceedings by the teachers against
their termination orders, Article 142 is exercised and termination orders are
held invalid-Teachers are directed to be reinstated into service without
payment of arrears of salary-West Bengal Board of Secondary Education
Act, 1963-West Bengal Board ofSecondary Education (Manner ofHearing D
and Deciding Appeal by Appeal Committee) Regulations, 1964-Management
of Recognized Non-Government Institutions (Aided and Unaided) Rules,
1964.

Article 26-Framing of Special Rules under Rule 33 by a Mission-
religious denomination-Right under Article 26-Claim of-Held: Every E
religious denomination or any section thereof has right to establish and
maintain institutions for religious and charitable purpose under Article
26(a)-Therefore, religious denominations not falling under Article 29(1)
and 30(1) have right to establish and maintain educational institutions
under Article 26(a)-Hence, such a Mission entitled to fundamental right F
under Article 26 to frame Special Rules under Rule 33-Management of
Recognized Non-Government Institutions (Aided and Unaided) Rules, 1969-
Rule 33.

Management of Recognized Non-Government Institutions (Aided and
Unaided) Rules, 1969: Rule 33-Framing of Special Rules under Rule 33 G
by institution governed by Article 26-Requirement of, its e.ffect-Non-
publication ofdraft Ru/es-Effect of-Held: Special Rules require publication
of draft rules-Before publication date is to be fixed for consideration of
draft Rules under section 24 of the General Clauses Act 1899-Special
Rules under which Committee's decision is final deprives the teachers of H
423
424 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A valuable rights under Rule 28(8) under which Board:s decision on disciplinary
matters is final-On facts, Special Rules were approved in terms ofthe order
of High Court but there was no sufficient publication of Special Rules as
such valid Special Rules not in force and Rule 28(8) of 1969 Rules would
prevail-However, the Special Rules were approved by State Government-
B As such State Government directed to treat Rules as draft Rules under Rule
33 and issue directions for its previous publication byfollowing the procedure
under Section 24 ofthe 1899 Act-Rule 28(8)-West Bengal General Clauses
Act, 1899-Section 24.

West Bengal Board of Secondary Education (Manner of Hearing and
C Deciding Appeal by Appeal Committee) Regulations, 1964-Regulation 3-
Second set ofappeals challenging termination order-Maintainability, effect
of-Held: Sepond set of appeals not maintainable since the first set of
appeals challenging the termination order have been withdrawn
unconditionally and Court did not grant any such liberty in its previous
D order-Also no provision under the Regulations for filing second set of
appeals when first one unconditionally withdrawn-As a result termination
order attains finality.
~.

Appellant-mission is running a school affiliated to West Bengal
Board of Secondary Education under the West Bengal Board of
E Secondary Education Act, 1963. Two approved teachers of the school
refused to do hostel duties and as such show cause notices were issued
to them. Thereafter, their services were terminated. Appellant filed writ
petition claiming right under Article 26 of the Constitution seeking
directions against the State Government requiring it to frame Special
F Rules for composition, powers, functions of the Managing Committee
of the institutions under the Act in exercise of power under Rule 33 of
the Management of Recognized Non-Government Institutions (Aided
and Unaided) Rules, 1969. It contended that it fulfilled all the requisites
of being a religious denomination within the meaning of Article 26; and
that the Special Rules adopted by it be approved for the management
G of the school. High Court directed the State Government to approve the
Special Rules of the appellant-Mission. Thereafter, in terms of the order
of High Court, Special Rules were approved and writ petitio11 was
disposed of. Aggrieved teachers filed appeals before the Appeal
Committee of the Board under West Bengal Board of Secondary
H Education (Manner of Hearing and Deciding Appeals by Appeal
RAMAKRISHNA VIVEKANANDA MISSION v. STATE 425

· Committee) Regulations, 1964 and also filed writ petitions chr.llenging A
the termination orders. Appellant filed writ petitions challenging the
competence of the Appeal Committee to hear the appeals. Teachers
unconditionally withdrew their appeals and the writ petition also.
Thereafter, they filed applications for restoration of those appeals which
were dismissed. Appellant filed an application in writ petition challenging B
the same. Division Bench of the High Court disposed of the writ petitions
filed by the appellant holding that after the appeals had been allowed
to be withdrawn by the Appeal Committee, it had become completely
functus officio and had no jurisdiction to proceed with the said appeals.
It did not adjudicate with regard to entertaining of fresh appeals against
the termination order under law and observed that if the situation c
arises, the parties would be at liberty to take steps in the matter according
to law.

Teachers then filed second set of appeals challenging the termination
order. Appellant again filed writ petition challenging competence of the D
Appeal Committee to hear the fresh appeals. Preliminary objection with
· regard to the maintainability of the appeals was rejected and writ
petitions were dismissed upholding the ordP-r of Appeal Committee
which had quashed the termination order. Appellant filed appeals
against the order and also filed writ petition praying for formal
communication of the approval of the Special Rules and to publish such E
approved Special Rules in the Official Gazette. Division Bench of High
Court disposed of the matters holding that the publication of the Special
Rules in the Gazette was mandatory and since the publication was not
done, the order of High Court would be without jurisdiction and thus
not binding on the teachers; that liberty was granted to the teachers to F
file fresh appeals and as such those appsals would be maintainable; and
that with regard to the formal approval of the Rules since the publication
was held mandatory by the High Court, no specific orders have been
passed except stating that writ petition deserves to be dismissed. Hence
the present appeals.
G
Disposing of the appeals, the Court

HELD : 1.1. Article 26(a) of the Constitution of India grants the
right to every religious denomination or any section thereof to establish'·
and maintain institutions for religious and charitable purposes, subject H
426 SUPREME COURT REPORTS [2004) SUPP. 6 S.C.R.

A to public order, morality and health. The right to establish and maintain . .
educational institutions may also be sourced to Article 26(a). Therefore,
religious denominations or sections thereof, which do not fall within the
special categories carved out in Article 29(1) and 30(1), have the right
to establish and maintain religious and educational institutions. This
B would allow members belonging to any religious denomination, including
the majority religious community, to set up an educational institution.
The phrase "private educational institution" would include not only
those educational institutions set up by secular persons or bodies, but
also educational institutions set up by religious denominations; the word
C "private" is used in contradistinction to government institutions.
Therefore, the appellant is entitled to claim fundamental rights under
Article 26 to seek framing of Special Rules under Rule 33 of the
Management of Recognized Non-Government Institutions (Aided and
Unaided) Rules, 1969. Also the State Government or the private
respondents have not disputed whether the appellant is entitled to rights i
D under Article 26. (437-D, E, F]

T.MA. Pai Foundation & Ors. v. State of Karnataka & Ors., [2002)
8 sec 481, followed.

E Bramchari Sidheswar Shai & Ors. v. State of W.B. & Ors., (1995) 4
sec 646, referred to.
2.1. The Special Rules framed under Rule 33 of the Management
of Recognized Non-Government Institutions (Aided and Unaided) Rules,
1969 require prior publication as postulated by section 45 of the Act.
F Before such publication the procedure prescribed under Section 24 of
the West Bengal General Clauses Act, 1899 to be complied with. The
Special Rules have the effect of depriving the teachers of valuable rights
under Rule 28(8). Under the said Rule, the decision of the Board on the
disciplinary matters is final whereas under the Special Rules, it would
G be the decision of the Committee which would be final. On publication
of the draft rules, those affected by the Special Rules are granted
opportunity to file objections and suggestions to those rules which are
required to be considered before taking a decision to publish the rules
in official gazette as the said publication in conclusive proof of the rules
H having been duly made. (438-B; 439-B]
RAMAKRISHNA VIVEKANANDA MISSION v. STATE 427

2.2. In the instant case, the Special Rules wee approved in terms A
.~ of the Order of High Court. The said order cannot, however, adversely
affect the teachers, when the private respondents-teach.ers were not
parties in those proceedings and also when the law was not followed
insofar as the previous publication was concerned. There was' nt no
sufficient and enough publication of the Special Rules. There has to be B
strict compliance of the provision regarding previous publication as it
vitally affects the teaching and non-teaching staff which has a valuable
right to object to the Special Rules when its draft is published. Admittedly,
nothing of the kind was done. It cannot be held that valid Special Rules
came to be made only because of orders of High Court. So long as
Special Rules under Rule 33 are not legally made or come into force, C
1969 Rules would prevail and continue to apply which means Rule 28(8)
would continue to apply. [439-D, E, F]

2.3. The High Court committed serious illegality in not allowing
prayer~ directing publication of the Special Rules in terms of Section 45 D
of the Act and Section 24 of the General Clauses Act. The Special Rules ~·
were approved by the State Government as noticed in the order <'fHigh
Court. These Rules ought to have been treated as the di·aft Rules under
Rule 33 and directions for its previous publication by following the
procedure under Section 24 ought to have been made. State Government
is to consider the objections and suggestions, if any, that may be filed on E
the publication of the draft Rules and to consider the same in accordance
with law and thereafter to notify the special Rules in the Official Gazette
in case the Government comes to the conclusion that the said Rules deserve
to be made under Rule 33. [439-H; 440-A, B]

3. High Court erred in holding that any liberty had been granted F
to the teachers to file second set of appeals. Order of High Court which
had attained finality shows that no such liberty was granted. In fact, the
order postulates that in case second set of appeals were filed, their
maintainability would be decided in accordance with law. Also un.der
the regulations, there is no provision for filing of second set of appeals G
when earlier appeals are unconditionally withdrawn. Therefore, the
appeals were not maintainable. The effect of it would be that the order
of termination of the services of the teachers would remain unchallenged.
Also the teachers did not file any writ petition challenging the order of
termination, since they had succeeded before the Board in second set of
appeals. [440-F, G, H; 441-A] H
428 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A 4. The power under Article 142 of the Constitution deserves to be
exercised for doing complete justice to the parties since, the Special
Rules did not come into force on account of non-publication thereof and,
thus, the appellant was required to follow the procedure under Rule
28(8) which, admittedly, was not followed and that the orders of
B termination have attained finality as second set of appeals under the
Regulations were not maintainable. Even in absence of any substantive
proceedings by the teachers, the termination orders of the teachers are
not valid and as such both teachers would be entitled to be reinstated
into service, but without payment of arrears of salary with the
undertaking to do hostel duties. [441-C, D)
c
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3232-3234
of 2000.

From the Judgment and Order dated 13.10.99 of the Calcutta High
D Court in A.P.O.T. Nos. 172 and 173/98 and W.P. No. 18402 (W) of 1997.

. Sanjay Sen, Debmalya Banerjee and Ms. Indra Sawhney for the I
Appellant.

Tara Chandra Sharma, Ms. Neelam Sharma, Ajay Sharina, Tarun ·
E Sharma, Raj Kumar Gupta and A.N. Bardiyar for the Respondents.

The Judgment of the Court was delivered by

Y.K. SABHARWAL, J. : The appellant Ramakrishna Vivekananda
F Mission (for short, 'the Mission') has challenged in these appeals a common
judgment of the Division Bench of the High Court whereby two appeals
challenging the order of a learned Single Judge and a Writ Petition No.
l 8402(W) of 1997 filed by the Mission were dismissed.

The Mission is running a school known as Ramakrishna Vivekananda
G' Mission Vidya Bhawan. The school is affiliated to the West Bengal Board
of Secondary Education (for short, 'the Board') and is governed by the West
Bengal Board of Secondary Education Act, 1963 (for short, 'the Act'). The
two private respondents Swapan Panda and Tapan Negoi were appointed as
teachers in the school in the years 1977 and 1986 respectively. Both were
H approved teachers. The other respondents in these appeals are State of West
RAMAKRISHNA VIVEKANANDA MISSION v. STATE [SABHARWAL, J.) 429

Bengal and the education authorities under the Act. A

The West Bengal Board of Secondary Education (Manner of Hearing
and Deciding Appeals by Appeal Committee) Regulations, 1964 (for short,
'the Regulations') and Management of Recognized Non-Government
Institutions (Aided and Unaided) Rules, 1969 (for short, 'the Rules) have B
been framed under the provisions of the Act.

According to the Mission, since the aforesaid two teachers refused to
do hostel duty, show cause notice dated 4th April, 1996 was issued to them.
The teachers, in reply to the said notice, took the stand that they had become
'approved teachers' and were no longer bound by the terms and conditions c
of service requiring them to do hostel duty. In terms of letters dated 18th
May, 1996, services of these teachers were terminated.

For proper appreciation of the controversy, it is necessary to note the
proceedings under the Regulations that were initiated by the teachers D
challenging the validity of termination and orders passed thereon besides
the proceedings in the High Court and the orders passed by the High Court
as also the provisions of the Act, Regulations and the Rules. The orders
passed in Writ Petition No. 2041 of 1986 that was filed by the Mission
claiming certain rights under Articles 14, 26 and 30 of the Constitution of
India are also relevant for the present purpose. E

The school run by the Mission is affiliated to the Board established
under the Act. 'Board' means the West Bengal Board of Secondary Education
established under the Act [Section 2(a)]. Sections 18 to 26 are in Chapter
III of the Act which, inter a/ia, deals with constitution of various committees. F
Section 18 provides that as soon as may be after the Board is established,
the Board shall constitute committees mentioned therein. One of the
Committees with which we are concerned is· the Appeal Committee. The
constitution of the Appeal Committee has been provided for in Section 22
of the Act. Sub-section (3) of Section 22 provides that it shall be the duty
of the Appeal Committee to hear and decide appeals filed by teachers and G
other employees against decisions of Managing Committees of institutions
adversely affecting them, in accordance with the regulations made in this
behalf. Section 27 provides for powers and duties of the Board. Section
27(3) empowers the Board to make regulations in respect of any matter for
the proper exercise of its powers under the Act. Section 45 is a rule making H
430 SUPREME COURT REPORTS [2004) SUPP. 6 S.C.R.

A power of the State Government. Section 45(1) provides that the State
..J · Government may, after previous publication, make rules for carrying out the
purposes of the Act.

In exercise of powers under Sub-section (3) of Section 27 read with ·
B Sub-section (3) of Section 22 of the Act, the Board made the Regulations
providing for filing of appeal against the decision of the Managing Committee.
The expression 'Managing Committee' is defined in Section 2(d) of the Act.
The said section states that the 'Managing Committee' used in reference to
an institution includes the Governor or Governing Body of such an institution.
The 'institution' means a secondary school or an educational institution or
C part or department of such school or institution imparting instructions in
secondary education [(Section 2(c)]. Regulation 3 provides that a teacher
who feels to have been affected adversely by any decision of the Managing
Committee of the institution he serves or has served, may appeal direct to
the Appeal Committee against such decision in accordance with the provisions
D of the Regulations. Regulation 4 provides that the Managing Committee
against whose decision an appeal is intended to be preferred shall, on
demand in writing furnish a copy of the decision in question to the appellant
within a week from the date of such demand. The adversely affected teacher_.
has been referred to as the appellant in the Regulations. Regulation 4(2)
stipulates that the appellant shall submit to the Secretary to the Board, by
E registered post with acknowledgement due, a memorandum of appeal within
one month from the date on which he receives a copy of the decision from
the Managing Committee. The Regulation further provides for the manner
of processing and hearing of the appeal and matters connected therewith.

F In exercise of power under Section 45 of the Act, the State Government
has framed the Rules. Rule 28 sets out powers of the Committee of an aided
institution subject to the approval of the Director. For the present purpose,
Sub-Rule (8) of Rule 28 is relevant. It reads as under :

"Both in aided and unaided Institutions the Committee shall have
G the power, subject to the prior approval of the Board, to remove
or dismiss permanent or temporary teachers and other employees.
For this purpose the Committee shall first draw up formal
proceedings and issue charge-sheet to the teacher or the employee
concerned, and offer him reasonable facilities for defending himself.
H The teacher or the employee proposed to be proceeded against shall
RAMAKRfSHNA VIVEKANANDA MISSION v. STATE [SABHARWAL, J.] 431

submit his explanation, ordinarily, within a fortnight of the receipt A
of the charge-sheet. The Committee shall send to the Board all
relevant papers including the charge-sheet, explanations submitted
by the teacher or the employee concerned and the reasons for whicb
the Com1nittee decides in favour of taking disciplinary action. If
the Board considers that there are sufficient grounds for taking B
disciplinary action the Committee shall issue formal notice calling
upon the teacher or the employee concerned to show cause, ordinarily
within a fortnight, why he should not be dismissed or removed from
service. The Committee shall, then, send again, to the Board all
relevant papers including the explanation submitted by the teacher
or the employee concerned and the recommendations of the C
Committee for the action proposed to be taken. So for as the
Committee is concerned, the decision of the Board shall be final:

Provided that the Board may delegate to any Committee constituted
under Section 24 of the Act the powers and functions conferred on D
the Board by this sub-rule."

Rule 33 provides for the power of the State Government to frame
further Rules for certain institutions. It reads as under :

"Power of the State Government to frame further rules for certain E
Institutions : Nothing in these rules shall affect the power of tbe
State Government to frame, on the application of any Institution or
class oflnstitutions, to which the provisions of Article 26 or Article
30 of the Constitution of India may apply, further or other rules for
the composition, powers, functions of the Managing Committee or F
Committees of such Institution or class of Institutions."

The Mission wanted the State Government to frame Rules under the
aforesaid Rule 33, hereinafter referred as 'Special Rules'. A writ petition
(being No. 2041 of 1986) was filed by the Mission seeking directions against
the State Government requiring it to frame the Special Rules in exercise of G
power under Rule 33. The claim of the Mission was that it fulfilled all the
~equisites of being a religious denomination within the meaning of Article
26 of the Constitution oflndia, its further case being that the State Government
having framed Special Rules in respect of several institutions governed by
Article 26 or 30 of the Constitution which had identical religious beliefs, H
432 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

.A objects and functions as that of the appellant Mission, the denial of framing
Special Rules for the Mission was also violative of Article 14 of the
Constitution. The Mission wanted that the Special Rules adopted by it in
November l 986 for the management of the school shall be approved. The
grievance of the Mission was that the State Government was illegally not
B sanctioning the Special Rules although it had sanctioned the same in respect
of the Ramakrishna Mission and Ramakrishna Sharda Mission despite the
fact that their objects were the same as that of the appellant Mission. By
orders dated I 4th October, l 993 passed in Writ Petition No. 2041 of 1986,
a learned Single Judge of Calcutta High Court came to the conclusion that
the appellant Mission is entitled to the approval of their rules as Special
C Rules for their school. Accordingly, the State Government and Education
Department were directed to approve the Special Rules of the appellant
Mission within one month from the date of communication of the order. The
order dated 1st March, 1994 passed by the High Court records the statement
made by the counsel representing the State Government that the Government
D has no objection for granting Special Rules for the management of the
school of the Mission excepting that the Mission may be persuaded to opt
out of the grant-in-aid scheme. Rejecting the said stand the High Court held
in terms of judgment and order dated 1st March, 1994 that the grant of·
Special Rules cannot be linked with the grant-in-aid. The benefit of grant-
in-aid cannot be withdrawn by granting Special Rules. In no school where
E Special Rules have been granted, grants-in-aid have been withdrawn or
denied. The order then records the statement of counsel for the State that
Special Rules in terms of the orders dated 14th October, 1993 have already
been approved and the file was also produced before the Court. Writ
Petition No.2041/1986 was disposed of in terms of judgment and order dated
F 1st March, 1994 by issue of certain other directions as well which are not
relevant for the present purposes.

Reverting now to the orders of termination of two teachers referred to
hereinbefore, two appeals (Appeal Nos. 9 and 10 of 1996) were filed by the
teachers on 10th June, 1996 before the Appeal Committee of the Board
G under the Regulations. Almost at the same ~ime, the teachers also filed on
12th June, 1996 Writ Petition Nos. 7932-7933of1996 before the High Court
challenging the orders of termination. The Mission also filed on 14th
August, 1996 Writ Petition Nos. 1750-1751 of 1996 challenging the
competence ofthe Appeal Committee to hear the appeals. Admittedly, both
H the teachers withdrew their appeals (Appeal Nos. 9 and 10) pending before
RAMAKRISHNA VIVEKANANDA MISSION v. STATE [SABHARWAL, J.] 433

the Appeal Committee. The appeals were unconditionally dismissed as A
· withdrawn on 16th December, 1996. On 17th December, 1996, aforesaid
two writ petitions filed by the teachers were also unconditionally withdrawn.

After sometime, applications were filed by the teachers before the
Appeal Committee seeking restoration of the two appeals that had been
dismissed on 16th December, 1996. The Mission approached the High
Court by filing an application in Writ Petition Nos. 1750-1751 of 1996
contending that the Appeal Committee had no power to entertain and hear
the appeals which had· already been dismissed as withdrawn. A Division
Bench of the High Court, by order dated 1 lth February, 1997 disposed of
Writ Petition Nos. 1750-1751 of 1996 holding that after the appeals had C
been allowed to be withdrawn by the Appeal Committee of the Board, the
Appeal committee had become completely functus officio and had no
jurisdiction to proceed with the said appeals. In that view, it was held that
the writ petitions of the Mission had become infructuous because the appeals
were no longer subsisting and were not alive. As already noticed, the I
challenge of the Mission in the said writ petitions was to the competence
of the Appeal Committee to hear the appeals. The Division Bench did not
adjudicate the question whether against the orders of termination the Appeal
Committee of the Board could entertain fresh appeals under law and observed
that if the situation arise, the parties would be at liberty to take steps in the
matter according to law. It was observed that the Court was not called upon
to decide the future course of action the Appeal Committee of the Board
may take in the facts and circumstances of the case.

On 3rd April, 1997, two fresh Appeal Nos. 3 and 4 of 1997 were filed
by the teachers challenging the orders of termination above referred. The
competence of the Appeal Committee to hear the fresh appeals filed by the
teachers was challenged by the Mission by filing Writ Petition Nos. 804-
805" of 1997. In the said writ petitions, the High Court directed the Appeal
Committee to proceed in two stages - ( 1) to decide on the maintainability
of the appeals; and (2) hear the appeals on merits but shall not pass any final
order without obtaining leave of the Court. The Appeal Committee rejected (
the preliminary objection about the maintainability of the appeals. Aforesaid,
writ petitions were dismissed by the learned Single Judge on 25th February,
1998 upholding the order of the Appeal Committee which had quashed the
order of termination by orders passed on 17th September, 1997. It seems
that during the course of hearing of the writ petitions, the Board handed over ~
434 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A to the court a sealed cover which contained the final determination of the
Appeal Committee. In so far as the Mission is concerned, it seems that the
communication about the order setting aside the order of termination was
sent to it only on 15th November, 1999. The Mission filed two appeals
against the order of learned Single Judge which were dismissed by the
B impugned judgment.

The Mission had also filed another Writ (being Petition No. 18402/97),
inter alia, praying for formal communication of the approval of the Special
Rules and to publish such approved Special Rules in the Official Gazette.
The said writ petition was disposed of along with the aforenoted two appeals
C by the Division Bench by a common judgment. The writ petition has also
been dismissed.

The Division Bench mainly considered two questions, namely (I)
whether Special Rules in fact had been approved or could be approved in
D terms of the provisions of the Act and the Rules and (2) whether the
publication of the Special Rules was mandatory and the effect of non-
publication.

The aforesaid questions have been decided against the Mission in as
much as the High Court in the impugned judgment has held that publication
E of the Special Rules in the Gazette was mandatory and since the publication
was not done, the order dated I st March, 1994 would be without jurisdiction
and thus not binding on the teachers. Further, on the question of the non-
maintainability of second set of appeals, the High Court has merely noticed
that liberty was granted to the teachers to file fresh appeals and, therefore,
F those appeals would be maintainable. Insofar as the prayers made in Writ
Petition No. 18402 of 1997 seeking formal approval of the rules which, in
other words, means publication of the said rules at that stage, since the
publication was held mandatory by the High Court, no specific orders have
been passed except stating that writ petition deserves to be dismissed.

G On behalf of the appellants, Mr. Dipankar Gupta, senior advocate
submits that the Division Bench committed serious illegalities both, on facts
and law since no liberty has been granted to the teachers to file fresh appeals
and thefactum of the approval of Special Rules, as noticed in the order dated
I st March, 1994, 'could not be disputed by the State Government and that
H order was erroneously held to be without jurisdiction. Learned counsel
RAMAKRISHNA VIVEKANANDA MISSION v. STATE [SABHARWAL, J.] 435

further submits that in any case, on the Division Bench coming to the A
conclusion that the publication was mandatory, orders sought for in Writ
Petition No. l 8402/97 ought to have been passed and publication should
have been directed to be made at that stage.

Before we examine aforesaid contentions, it may be noted that an B
additional ground was also taken by the appellant by filing an application
challenging the validity of Rule 28(8) but Mr. Dipankar Gupta did not press
the said challenge as the validity of the Rules was not challenged before the
High Court. In this view, we need not examine the validity of the said Rule.
We may also note that so long as Special Rules under Rule 33 are not legally
made or come into force, l 969 Rules will prevail and continue to apply C
which, in other words, means Rule 28(8) would continue to apply. Regarding
the publication of the Rules, neither can it be seriously disputed nor it has
been so disputed that the requirement of Section 45 of the Act is mandatory.
Section 45 requires the State Government to make rules for carrying out the
purposes of the Act after previous publication. In this background, the D
points to be examined are :

I. Is the appellant entitled to claim rights under Article 26 of the
Constitution oflndia and on that basis seek framing of Special
Rules under Rule 33;
E
2. What is the effect of non-publication of the Special Rules
referred to in the order dated l st March, 1994 passed by th.e
High Court in Writ Petition No. 2041/86;

3. Whether an order for publication of the Rules ought to have F
been made in Writ Petition No.18402/97;

4. Whether the second set of appeals (Nos. 3 and 4 of 1997) filed
by the teachers were maintainable, if not, its effect

Point No.I : G

The claim of the Mission for framing of Special Rules based on
Articles 14 and 30 of the Constitution has not been pressed before us.
Learned counsel for the appellant has only relied upon Article 26 of the
Constitution. The Division Bench in the impugned judgment, after quoting H
436 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A a passage from the decision in Bramchari Sidheswar Shai &. Ors. v. State
ofW.B. & Ors., (1995] 4 SCC 646, has observed that 'This Bench, thus, will
have to proceed on the basis as to whether special rules allegedly framed
by the petitioner itself could have been approved'. The passage from
Bramchari Sidheswar Shai 's case, quoted in the impugned judgment is as
under:
B
"We think that the learned Judges of the High Court should not have
decided on the general question whether educational institutions
established and maintained by religious denomination including
those established and maintained by Ramakrishna Mission for
c general education get the protection of Article 26(a) of the
Constitution when that question in a general form, was not really
at issue before them. Therefore, the views expressed on the question
shall, according to us, ought to be treated as non est and the
question is left open to be decided in proper case, where such
D question really arises and all the parties who. might be concerned
with it are afforded adequate opportunity to have their say in the
matter."

The aforesaid passage occurs in para 65 of the decision in Bramchari
Sidheswar Shai 's case. The observations in para 65 were made while
E considering the question that if Ramakrishna Mission as religions
denomination or a section thereof establishes and maintains educational
institutions, can such institutions be regarded as institutions established and
maintained for charitable purpose within the meaning of Article 26(a) of the
Constitution of India. By the aforesaid observation, this Court held that the
F High Court should not have decided the general question whether educational
institutions established and maintained by religious denominations including
Ramakrishna Mission for general education would get the. protection of
Article 26(a) when that question in general was not really at issue before
the High Court. It was in this connection that this Court held that the views
G expressed on the question ought to be treated as non est and left the question
open to be decided in a proper case. It may also be noticed that in paras
57 and 58, it was held that no good reason was shown for not accepting the
view that Ramakrishna Mission or Ramakrishna Math is 'a religious .,
denomination' and that the persons belonging to or owing their allegiance·
to Ramakrishna Mission or Ramakrishna Math belong to a religious
H denomination within the Hindu Religion or a section thereof as would entitle
RAMAKRISHNA VIVEKANANDA MISSION v. STATE [SABHARWAL, J.] 437

them to claim the fundamental rights conferred on either of them under A
Article 26 of the Constitution oflndia. Point No. 2 in that case was as under:

"Do persons belonging to or owing allegiance to Ramakrishna
Mission belong to a' religious denomination or any section thereof
as would entitled them to claim the fundamental rights conferred B
on either of them under Article 26 of the Constitution of India?"

The said question was answered in the affirmative as noticed in para
58 of the report.

In any case, the question now stands settled by a decision rendered by
c
a 11 Judge Bench in T.MA. Pai Foundation & Ors. v. State of Karnataka
& Ors .. [2002] 8 SCC 481 para 26 whereof reads thus :

"The right to establish and maintain educational institutions may_
also be sourced to Article 26(a), which grants, in positive terms, D
the right to every religious denomination or any section thereof to
establish and maintain institutions for religious and charitable
purposes, subject to public order, morality and health. Education
is a recognized head of charity. The~efore, religious denominations
or sections thereof, which do not fall within the special categories E
carved out in Article 29(1) and 30(1), have the right to establish
and maintain religious and educational institutions. This would
allow members belonging to any religious denomination, including
. the majority religious community, to set up an educational institution.
Given this, the phrase "private educational institution" as used in
this judgment would include not only those educational institutions
F
set up by secular persons or bodies, but also educational institutions
set up by religious denominations; the word "private" is used in
contradistinction to government institutions."

The point whether the appellant is entitled to rights under Article 26 · G
has, in fact, not been seriously disputed either by learned counsel appearing
for the State Government or the private respondents.

Having regard to the aforesaid, the first point is answered in favour
of the appellant. H
438 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A Point Nos. 2 and 3 :

The background leading to the passing of the Order dated 1st March,
1994 has already been noticed hereinbefore. It cannot be seriously disputed
that the special rules framed under Rule 33 require prior publication as
B postulated by Section 45 of the Act. It further cannot be disputed that before
such publication the procedure prescribed under Section 24 of the West
Bengal General Clauses Act, 1899 had to be complied with. Section 24 of
the West Bengal General Clauses Act reads as under :

"24. Provisions applicable to making of rules or bye-laws after
c previous publication.-Where by any Bengal Act or West Bengal
Act; a power to make rules or bye-laws is expressed to be given
subject to the condition of the rules or bye-laws being made after
previous publication, then the following provisions shall apply
namely:-
D
(1) the authority having power to make the rules or bye-laws
shall, before making them, publish a draft of the proposed
rules or bye-laws for the information of persons likely to be
affected thereby;

E (2) the publication shall be made in such manner as that authority
deems to be sufficient, or, if the condition with respect to
previous publication so requires, in such manner as the
Government concerned prescribes;

F (3) there shall be published with the draft a notice specifying a
date on or after which the draft will be taken into consideration;

(4) the authority having power to make the rules or bye-laws, and,
where the rules or bye-laws are to be made with the sanction,
approval or concurrence of another authority, that authority
G also, shall consider any objection or s~ggestion which may be
received by the authority having power to make the rules or
bye-laws from any person with respect to the draft before the
date so specified;

H (5) the publication in the Official Gazette of a rule, or bye-law
RAMAKRISHNA VIVEKANANDA MISSION v. STATE [SABHARWAL, J.) 439

purporting to have been made in exercise of a power to make A
rulec; or bye-laws after previous publication shall be conclusive
proof that the rule or bye-law has been duly made."

The Special Rules have the effect of encroaching upon the rights of
the teaching and non-teaching staff in the school. On publication of the draft B
rules, those affected by the Special Rules are granted opportunity to file
objections and suggestions to those rules. Section 24 postulates fixing of
date for consideration of draft Rules by the State Government. The objections
or suggestions that may be received are required to be considered before
taking a decision to publish the rules in official gazette as the said publication
is conclusive proof of the rules having been duly made. c
In the instant case, effect of the Special Rules is to deprive of the
teachers of valuable rights under Rule 28(8). Under the said Rule, the
decision of the Board on the disciplinary matters is final whereas under the
Special Rules, it would be the decision of the Committee which would be D
final. It is true, as already noticed, that the High Court was informed that
the Rules had been approved as recorded in the order dated l st March, 1994
in Writ Petition No. 2041 of 1986. The said order cannot, however,
adversely affect the teachers here, particularly, when the private respondents
(teachers) were not parties in those proceedings and also when the law was
not followed insofar as the previous publication was concerned. We are E
unable to accept the contention that there was sufficient and enough
publication of the Special Rules. There has to be strict compliance of the
provision regarding previous publication as it vitally affects the teaching and
non-teaching staff which has a valuable right to object to the Special Rules
'When its draft is published. The teaching class can put forth its view point F
and give suggestions to the State Government on publication of the draft
Rules. Admittedly, nothing of the kind was done. It cannot be held that
valid Special Rules came to be made only because of orders dated l st March,
1994. In the absence of Special Rules, 1969 Rules would continue to apply
and prevail.
G
Having reached the aforesaid conclusion but, at the same time, bearing
in mind the proceedings and orders passed in Writ Petition No. 2041 of 1986
as referred to earlier, the learned Division Bench committed serious illegality
in not allowing prayer made in Writ Petition No. 18402of1987 by directing
publication of the Special Rules in terms of Section 45 of the Act and Section H
440 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A 24 of the General Clauses Act. The Special Rules were approved by the
State Government as noticed in the order dated 1st March, 1994. These
Rules ought to have been treated as the draft Rules under Rule 33 and
directions for its previous publication by following the procedure under
Section 24 ought to have been made. It is, however, for the State Government
B to consider the objections and suggestions, if any, that may be filed on the
publication of the draft Rules and to consider the same in accordance with
law and thereafter to notify the Special Rules in the Official Gazette in case
the Government comes into conclusion that the said Rules deserve to be
made under Rule 33.

c In view of the aforesaid, we direct the State Government to treat the
Rules mentioned in orders dated 1st March, 1994 as draft rules and proceed
to follow the procedure contemplated by Section 24 of the General Clauses
Act. The draft Rules shall be published within a period of two months
specifying in the notice the date of not later than one month from the date
D of the notice when the draft will be taken up for consideration. The
procedure prescribed under Sec~ion 24 shall be completed within a period
of four months and ifthe rules are to be notified, the decision shall be taken
;within four months. The decision on objections or suggestions that may be
received on publication of the draft Special Rules shall be taken, one way
or the other within the said period of four months.
E
Point No.4

The regulations under which an appeal could be filed have already
been noticed hereinbefore as also the facts about filing of first set of appeals,
F unconditional withdrawal thereof, the dismissal of application for revival of
those appeals, the filing of second set of appeals and the connected matters.
The High Court fell into error in coming to the conclusion that any liberty
had been granted to the teachers to file second set of appeals. The order
of the High Court dated 11th February, 1997 which had attained finality
shows that no such liberty was granted. In fact, the said order postulates
G that in case second set of appeals were filed, their maintainability would be
decided in accordance with law. Under the regulations, there is no provision
for filing of second set of appeals when earlier appeals are unconditionally
withdrawn. The irresistible conclusion, therefore, is that Appeal Nos. 3 a.id
4 were not maintainable. The effect of it would be that the order of
H termination of the services of the teachers would remain unchallenged. The
RAMAKRISHNA VIVEKANANDA MISSION v. STATE [SABHARWAL, J.] 441

teachers did not file any writ petition challenging the order of termination, A
since they had succeeded before the Board in second set of appeals (Appeal
Nos. 3 & 4).

In view of the above, peculiar situation has &risen. On one hand the
Special Rules have not come into force on account of non-publication
thereof and, thus, the appellant was required to follow the procedure under
B
Rule 28(8). Admittedly, t.'tat was not followed. On the 'other hand, the
orders of termination have attained finality as second set of appeals under
the Regulations were not maintainable. Having regard to this peculiar
position, we are of the view that the power under Article 142 deserves to
be exercised for doing complete justice to the parties. In this view, even c
in absence of any substantive proceedings by the teachers, we hold that the
orders of their termination are not valid. Both teachers would be entitled
to be reinstated into service but without payment of arrears of salary and
on their giving undertaking to the appellant to do hostel duties as had been
agreed at the time of induction into service. Point No.4 is decided accordingly.
D
For the foregoing reasons, we set aside the impugned judgment and
dispose of the appeals in terms of the aforesaid directions.

N.J. Appeals disposed of.