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2007 DIGILAW 701 (CAL)

Kiran Subbha v. STATE OF WEST BENGAL

2007-09-07

ARUN KUMAR BHATTACHARYA, KALYAN JYOTI SENGUPTA

body2007
Judgment :- (1.) THE above writ petition and the appeal being MAT 52/04 with FMA 1713/03 are heard together as the principal point of controversy involved in those matters are interlinked with each other. (2.) THE Writ Petition being WP No. 2153 (W) of 2003 has been filed by one Kiran Subba and three others claiming for the following reliefs : (a) Writ/writ in the nature of Mandamus be issued thereby declaring that the Nepali/gorkha speaking people of hill areas of Darjeeling are linguistic minorities ; (b) Writ/ Writ in the nature of mandamus be issued thereby declaring that the Schools/institution in the hill areas of Darjeeling are established and administered by the linguistic minorities and as such the provisions of West Bengal School Service Commission act, 1997 ; and the amendments there under are not applicable in the hill areas of Darjeeling ; (c) Writ/writ in the nature of mandamus be issued thereby restraining the concerned respondent authorities from imposing the provisions of West Bengal School Service Commission Act, 1997 and the amendments made there under to School/institutions in the hill areas of Darjeeling ; (3.) THE appeal mentioned above was also preferred by Education secretary, Hill Council and another, against judgment and order dated 27th august, 2003 passed by a learned Single Judge of this Court in WPCR No. 16814 (W) of 2002. By that judgment and order appealed against the learned single Judge in substance directed the School Service Commission to make recommendations forthwith for filling up of the Vacancies on the basis of the requisitions sent by the schools or on the basis of the reports of the concerned district Inspector of Schools (S. E.) in terms of Sub-Rule (2) of Rule 7 of the school Service Commission Rules. (4.) IT appears that the petitioners in the said writ petition being 16814 (W) of 2002 were successful in the selection test conducted by the concerned regional School Service Commission and they were empanelled for being eligible to be recommended for appointment in the respective posts of Assistant teachers in the respective schools situate within Darjeeling District, which falls within the territory of Gorkha Hill Council. In both the matters core issue is whether the provisions of the West Bengal School Service Commission Act are applicable by virtue of Section 15 of the School Service Commission Act to the schools established and run by the Nepali speaking people or not. Larger and public interest are raised in the public interest litigation (hereinafter referred to as "pil") therefore, the decision of the appeal preferred by the Gorkha Hill council finally depends upon the decision in "pil". In the PIL some of the interested persons were added as party respondents to support instant application. Therefore the learned Counsel appearing for the writ petitioners in the PIL, Gokkha Hill Council, respondent in the earlier writ petition, added respondents and the State of West Bengal were heard altogether, and they have advanced their respective submission which are summarized hereunder : mr. Bimal Kumar Chatterjee, learned Senior Counsel appearing for the writ petitioners in W. P. No. 2153 (W) of 2003 (PIL) contends that Nepali or gorkha speaking people of hill areas of Darjeeling constitute linguistic minority and this fact will appear from the statements and averment made in the PIL supported by the public document namely the Population Census issued by the Government of India. Having regard to the ratio of the population of Nepali speaking people in West Bengal with total number of population, it will appear that the percentage is less than 2 per cent of the total population. These statements and averment remain uncontroverted, as such there is no difficulty for the Court to come to conclusion and to recognize that these Nepali /gorkha speaking people are linguistic minority. Actually he urges, they were and still are linguistic minority in the State of West Bengal and it need not be proved so and the Court taking all the facts and evidence adduced in this case should recognize, as such no question of declaration is required. In support of his submission he has relied on the following decisions of the Supreme Court : air 1958 SC 956 (at 979 paras 20-22), AIR 1971 SC 1737 (Paras 9-10), (2002)8 SCC 481 (Paras 78-81), (2003) 6 SCC 697 (Para 16), (5.) HIS further contention is that whether a particular community is linguistic minority or not has to be decided taking the State as a unit in contrast to a particular place or location. He has referred to in this connection one of the decisions of the Supreme Court reported in AIR 1999 SC 50 (Paras 11-13)and a Full Bench decision of the Kerala High Court reported in AIR 1965 Ker 75 . (6.) HE urges that it is not that all the secondary schools in the said hill areas are established and administered by the linguistic minority because of their location in the hill areas unless factually they were established and/or administered by the linguistic minority. This fact of establishment and fact of being administered by a linguistic minority have been proved by the affidavit of Gorkha Hill Council constituted under Darjeeling Hill Council Act, affirmed in March, 2003 and later their supplementary affidavit dated 6 December, 2004. Further each of as many as 102 schools of hill areas has made full disclosure as to who established and administered those schools, and they are added as party respondents by an order dated 8th December 2006. The facts disclosed as aforesaid remain undisputed in spite of opportunity being afforded to the state and the private parties to the writ petition. Therefore, he emphasizes that presumption as to correctness of the fact is also available in support of this contention. (7.) ACCORDING to him if the aforesaid fact is established then obviously the writ petitioner deserves relief as prayed for as Section 15 of the Act prohibits or bars application of other provisions of the Act to such schools. (8.) HE concludes that neither the National Commission for Minority educational Institutions Act, 2004, nor Rule 33 of the Management Rules, nor any of the decisions cited at the bar on behalf of the State respondent and contesting private respondents has any application to the fact of this case. (9.) MR. J. K. Mitra, learned Senior Advocate with Mr. Debal Banerjee, learned Senior Advocate appearing for the Darjeeling Gorkha Hill Council in the said appeal as well as in the public interest litigation submits as follows : state as a whole is the unit for adjudging minority. The fact that Nepali speaking people in Darjeeling are minority vis a vis the State of West Bengal is indisputable. This fact will appear from the census conducted by the government which is annexed at page 276 (Pages 279-280) in the writ petition. It will appear from the said Census report that Nepali speaking people constitute 1. The fact that Nepali speaking people in Darjeeling are minority vis a vis the State of West Bengal is indisputable. This fact will appear from the census conducted by the government which is annexed at page 276 (Pages 279-280) in the writ petition. It will appear from the said Census report that Nepali speaking people constitute 1. 26 per cent of the population of West Bengal. (10.) HIS next contention is that under the provision of Section 29 of darjeeling Gorkha Hill Council Act, 1988 (hereinafter referred to as the said act) all the executive powers relating to education transferred to Hill Council by virtue of Notification dated March 16/89 and 18th September, 1996. The west Bengal School Service Commission Act, 1997 came into force in 1997 and Hill region was excluded by the amendment made in 1998. All such executive powers relating to education would otherwise be transferred to School service Commission but for Section 15 (a) which excludes schools established and administered by minority whether based on religion or language. (11.) ACCORDING to him the word established means to bring into existence. Even if a single philanthropic individual with his own means, funds the institution and the individual belongs to the minority community, whether by religion or language, the institution will be established by a minority. In support of his contention he has relied on decisions of the Supreme Court reported in AIR 2002 SC 756 , at page 758 and (1970) 2 SCC 417 respectively. (12.) HE contends the right to administer will consist, inter alia, of the right to choose its managing or governing body, to choose its teachers/ headmaster/principal. In this connection he has referred to a decision of the supreme Court reported in (1992)1 SCC 558 . (13.) FROM the facts and evidence produced before this Court it will be clear that large number of Schools have been established and administered by the Nepali speaking people. In view of a decision of the Division Bench in the case of Siliguri Hindi High School, reported in (2004)1 Cal HN 571 at paragraph 14. 4 there is little scope for any dispute that declaration prayed for should not be granted. Accordingly he contends that the provisions of Section 15 (a) of the said 1997 Act will apply. In view of a decision of the Division Bench in the case of Siliguri Hindi High School, reported in (2004)1 Cal HN 571 at paragraph 14. 4 there is little scope for any dispute that declaration prayed for should not be granted. Accordingly he contends that the provisions of Section 15 (a) of the said 1997 Act will apply. (14.) HE further submits that provision of National Commission for minority Educational Institutions Act, 2004, which came into force on November 11, 2004 has no manner of application and the same will have prospective operation by reason of the fact that the said Act came into force when this matter was pending. The change in law or of forum cannot affect pending actions. He has made reference to two decisions of the Supreme Court reported in (1996)8 SCC 388 at 389, 390 (paras 4 to 7) and (2003)1 SCC 444 at 445, paras 3 and 4. (15.) HE further submits that the State Government itself, by its circular dated 6/9 September, 2003, has kept the operation of the West Bengal Regional school Service Commission Hill Region under suspension and directed locking up of its office and handing over custody to the District Magistrate, Darjeeling, pending official decision regarding handing over of functioning to Darjeeling gorkha Hill Council or any other organization. No information has been received as to what decision has been made till date. (16.) HE therefore concludes that all the powers and functions of the government under Sections 7 and 9 of the Act and also the Rule 28 of the management Rules are now to be exercised by the Gorkha Hill Council. According to him once it is established that it is a linguistic minority no regulation or law can infringe such constitutional right. He has referred to a large number of decisions of the Supreme Court in this regard which are listed hereunder : (2003)6 SCC 697 , (1970)2 SCC 417 , (1979)1 SCC 717, AIR 1979 SC 1389, (1998)6 SCC 674 , (1998)8 SCC 555 , (2002)8 SCC 481 and (2005)6 SCC 537 at page 599. (17.) MR. He has referred to a large number of decisions of the Supreme Court in this regard which are listed hereunder : (2003)6 SCC 697 , (1970)2 SCC 417 , (1979)1 SCC 717, AIR 1979 SC 1389, (1998)6 SCC 674 , (1998)8 SCC 555 , (2002)8 SCC 481 and (2005)6 SCC 537 at page 599. (17.) MR. Debabrata Ray, learned Advocate appearing for the State submits that public interest litigation at the instance of writ petitioners is not maintainable, as some of the writ petitioners are interested personally for getting recognition as minority institution and a special constitution of the school so that power of selection of teachers can be retained with them. (18.) ACCORDING to him Minority status of Nepali (Gorkhas) can only be given by the Central Government as per Section 2 (c) of National Commission of Minorities Act, 1992 which enables the Central Government to identify a community as a minority. (19.) HE submits that statistical data produced to show that Nepali community is numerically a minority cannot be the sole criterion for declaration by the Central Government. (20.) HE further submits that it is not for the Court to issue any direction or mandate on the basis of the claim of some members of Nepali community, which is opposed by another section of the same community, viz candidates selected by School Service Commission for appointment. (21.) HIS next submission is that the institutions which are praying exemption in view of Section 15 of the West Bengal School Service Commission has not yet been declared as linguistic minority institutions though they are governed by West Bengal Board of Secondary Education Act, 1963. Section 19 (3) of this Act of 1963 deals with the duty of recognition committee. Section 19a (3) (e) (iii) deals with approval of special constitution as are necessary to keep recruitment process in the hands of Managing Committee after introduction of School Service Commission Act. Rule 8 (3) of the Management Rules, 1969 deals with the power of Executive Committee of the Board to approve Special constitution on the application of the institutions. Till date none of the institutions has approached the Board for grant of Special Constitution. Rule 33 of the management Rules, 1969 speaks about the power of the State Government to frame rules on the application of the institutions to which provisions of Article 26 or Article 30 may apply. Till date none of the institutions has approached the Board for grant of Special Constitution. Rule 33 of the management Rules, 1969 speaks about the power of the State Government to frame rules on the application of the institutions to which provisions of Article 26 or Article 30 may apply. (22.) IN this connection he has relied on a decision of the Supreme Court reported in (2002)8 SCC 481 , T. M. Pai Foundation v. State of Karnataka. (23.) MR. Amal Baran Chatterjee, learned Advocate appearing for the respondents/writ petitioners in the said appeal submits that the PIL is not maintainable. He submits further that in this application constitutional validity of the School Service Commission Act is not challenged. The contentions involved in this matter relate to determination and/or applicability of Article 30 of the Constitution. In the public interest litigation the Court generally does not adjudicate the same. In this connection he refers to a decision of Supreme court reported in AIR 2004 SC 561 . This function is absolutely vested in the national Commission for Minorities Act, 1992 and also under the National commission for Minority Educational Institutions Act, 2004. (24.) HE contends that minority under the said Act, 2004 means linguistic, religious and cultural one. In this connection he refers to a Supreme Court decision reported in (2005) 6 SCC page 690. (25.) HE contends that even if for argument sake Nepali people are declared as minority but the schools in the hill area have to prove that they were established and administered by such minority people. The words established and administered have to be read conjunctively therefore benefits of Article 30 (1) can be obtained only after factual assessment is made. He refers to in this connection the following decision : air 1992 SC 1630 , AIR 1992 Pat 16, (2004)1 Cal HN 571. (26.) THE provisions of Section 45 of the West Bengal Board of secondary Education Act, read with Rule 8 (3) (A) as well as Rule 33 of management Rules under 1963 Act, provides clearly the methodology for determination of schools having special constitution and privileges under Article 30 of the Constitution. (27.) HE contends that a good number of schools are established in the district of Darjeeling by some other community who do not claim minority status. (27.) HE contends that a good number of schools are established in the district of Darjeeling by some other community who do not claim minority status. In any view of the matter the status of minority cannot be claimed retrospectively, as no one claimed previously as such. His clients have already been selected by the School Service Commission and the appointments of the teachers can only be made on recommendation made by the School Service Commission. Therefore, this public interest litigation should be dismissed as there is no serious challenge as against the order of the learned Single Judge. The appeal should also be dismissed accordingly. (28.) WE have carefully gone through the petition and affidavit-in-opposition and also heard the learned Counsel for all the parties. In the public interest litigation the point centers round for rendering decision is whether the schools run by the writ petitioners and also the added respondents are established and administered by minority based on language so as to get exclusion from the provisions of West Bengal School Service Commission act, 1997 which came into force with effect from 1st November, 1997. (29.) SECTION 15 of the Act reads as follows : "15. Act not to apply in relation to certain schools.-The provisions of this Act shall not apply to -(a) a school established and administered bv a minority, whether based on religion or language, or (b) a school under any trust, established and administered by a minority, whether based on religion or language, or (emphasis supplied) (c) a school not in receipt of any financial assistance from the State government, or (d) a school in receipt of a financial assistance from the State government towards dearness allowance only of Teachers of such school, or (e) a Government school. Explanation -government school shall mean a school maintained and managed by the State Government or the Government of India or the Railway Board under the Ministry of Railway, Government of india. " (30.) BY virtue of provision of Section 9 of the said. Act no appointment to the post of teacher can be made on or after commencement of the said Act in any school without recommendation of the Regional Commission having jurisdiction. (31.) SECTION 15 of the said Act is an exception. " (30.) BY virtue of provision of Section 9 of the said. Act no appointment to the post of teacher can be made on or after commencement of the said Act in any school without recommendation of the Regional Commission having jurisdiction. (31.) SECTION 15 of the said Act is an exception. The petitioners in the pil and the added respondents claim that they are the minority in language and as such applicability of the said Act must be excluded under the aforesaid section. (32.) HOW minority either in religion or in language can be adjudged has been laid down by the Supreme Court in the case of T. M. Pai Foundation v. State of Karnataka reported in (2002)8 SCC 481 . In that case yardstick for taking decision has been laid down that in order to decide minority in a particular region the concerned State has to be treated as unit. This Court in view of the aforesaid pronouncement of the Supreme Court has to accept the law laid down therein. The petitioners have annexed documents of public nature which include 1991 Census Report wherefrom it is revealed that in every lakh of people in West Bengal 126 can be found to be Nepali speaking who are concentrated mostly in Darjeeling Hill areas. Darjeeling is part of the State of west Bengal and Nepali speaking people residing therein are obviously people of West Bengal. In West Bengal there are other people who are having their languages different from Bengali. (33.) IN view of the statement and averment supported by the documents which are not rebutted, we are constrained to hold that Nepali speaking people in West Bengal are linguistic minority. (34.) NOW the question comes just because they are linguistic minority whether all the schools situate in their area the linguistic minority status can be granted automatically or not. In order to get out of the applicability of the west Bengal School Service Commission Act under Section 15 Clauses (a)and (b) following pre-conditions are to be fulfilled: The school/schools must be established and administered by a linguistic minority or a school/schools under any trust is (are) established and administered by linguistic minority. (35.) IN the case of Manager, St. Thomas U. P. School, Kerala and Anr. (35.) IN the case of Manager, St. Thomas U. P. School, Kerala and Anr. v. Commissioner and Secretary, G. E. Department reported in AIR 2002 SC 756 (at page 758) following earlier decision of the Supreme Court in the case of state of Kerala v. Mother Provincial Very Rev. reported in (1970)2 SCC 417 meaning and expression of the word established has been explained. In this case, it is said that expression establish and administer educational institutions within the meaning of Article 30 of the Constitution of India will be inferred even if a single philanthropic individual with his own means funds the institution and the individual belongs to the minority community, whether by religion or language. If it is established then certainly it can be treated to be religious minority. Once it is established that a particular school is established and administered by linguistic minority obviously the provision of the West Bengal school Service Commission Act will not have any application by virtue of section 15 of the said Act. (36.) THE Supreme Court in case of St. Stephens College v. University of Delhi reported in (1992)1 SCC 558 (at page 591, paragraph 41) held that right to administer will consist, inter alia, of the right to choose its managing or governing body, to choose its teachers/ headmaster/ principal. (37.) ACCORDING to us, these are absolutely essential questions of fact. It is contended that it is possible for the High Court to come to such fact finding if the statement and averment made in the petition together with document are not controverted by any affidavit then such a statement and contention can be accepted to be correct. (38.) IN the case of West Bengal Board of Secondary Education and Anr. v. Siliguri Hindi High School reported in (2004)1 Cal HN 571 this contention of the petitioner was accepted by the Division Bench of this Court which came to the conclusion that minority status can be declared by the Court, because there was no denial of fact of minority run school. (39.) WE are of the view that this Division Bench judgement runs on absolutely different fact. Here schools are numerous and no document regarding their constitution, source of fund, nor any particulars regarding name of the founder and the pattern of management and office bearers of body of management are before us. (40.) BUT then who can give declaration? (39.) WE are of the view that this Division Bench judgement runs on absolutely different fact. Here schools are numerous and no document regarding their constitution, source of fund, nor any particulars regarding name of the founder and the pattern of management and office bearers of body of management are before us. (40.) BUT then who can give declaration? Obviously the power of the writ Court is wide and if necessary the Writ Court can do. But the Writ Court with its self-imposed restriction and discipline will not proceed to decide highly disputed question of fact which needs elaborate evidence of minute details which are lacking in this case. We are of the considered view that mere statement and averment in the petition are not good enough, when the same are denied by necessary implication by School Service Commission. (41.) WE can reasonably presume mat there might be good number of schools established and run by the linguistic minority. But in order to get coverage under Article 30 of the Constitution of India aiming at to wriggle out of the applicability of the said Act there must be conclusive evidence. At the same time we add that all the schools in the Darjeeling cannot claim linguistic minority status as a matter of course or rule. Declaration of minority institution depends upon constitution of the school, founder and management authorities and lastly class of students, not the population of the area concerned. (42.) IT is contended by the learned Lawyers for the State as well as contesting respondent in the appeal that it can be decided by the Central government by virtue of the provision of National Commission for Minorities act, 1992 and the National Commission for Minority Educational Institutions act, 2004. Mr. Amal Baran Chatterjee for the writ petitioners/respondents says that the authorities viz. Central Government under 1992 Act and under 2004 act are only authorities to the exclusion of all forums including this Court, who are competent to declare the status of minority as claimed by the petitioners. We have gone through the provisions of aforesaid two Acts. According to us, 1992 Act has no application in this case and it will be clear from Section 9 of the said Act wherein scope of the functions of the Commission has been provided. Section 9 of the said Act is set out hereunder : "9. We have gone through the provisions of aforesaid two Acts. According to us, 1992 Act has no application in this case and it will be clear from Section 9 of the said Act wherein scope of the functions of the Commission has been provided. Section 9 of the said Act is set out hereunder : "9. Functions of the Commission.-(1) the Commission shall perform all or any of the following functions, namely : - (a) evaluate the progress of the development of minorities under the union and States ; (b) monitor the working of the safeguards provided in the Constitution and in laws enacted by Parliament and the State Legislature ; (c) make recommendations for the effective implementation of safeguards for the protection of the interests of minorities by the central Government or the State Governments ; (d) look into specific complaints regarding deprivation of rights and safeguards of the minorities and take up such matters with the appropriate authorities ; (e) cause studies to be undertaken into problems arising out of any discrimination against minorities and recommend measures for their removal; (i) conduct studies, research and analysis on the issues relating to socio-economic and educational development of minorities ; (g) suggest appropriate measures in respect of any minority to be undertaken by the Central Government or the State Governments ; (h) make periodical or special reports to the Central Government on any matter pertaining to minorities and in particular difficulties confronted by them ; and (i) any other matter which may be referred to it by the Central government. (2) The Central Government shall cause the recommendations referred to in clause (c) of subsection (1) to be laid before each House of parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any of such recommendations. (2) The Central Government shall cause the recommendations referred to in clause (c) of subsection (1) to be laid before each House of parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any of such recommendations. (3) Where any recommendation referred to in clause (c) of subsection (1) or any part thereof with which any State Government is concerned, the Commission shall forward a copy of such recommendation or part to such State Government who shall cause it to be laid before the legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the state and the reasons for the non-acceptance, if any, of any of such recommendation or part. (4) The Commission shall, while performing any of the functions mentioned in sub-clauses (a), (b) and (d) of sub-section (1), have all the powers of a Civil Court trying a suit and in particular, in respect of the following matters, namely: (a) summoning and enforcing the attendance of any person from any part of India and examining him on oath ; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any Court or office ; (e) issuing commissions for the examination of witnesses and documents ; and (f) any other matter which may be prescribed. " (43.) IT is clear that the Commission has not been empowered to decide or declare as to whether a particular institution is established and administered by linguistic minority. The function of the said Commission is quite different from the issues involved herein. It could look into complaint regarding deprivation of established right of minority which term is again unclear to include linguistic. When as in this case, such right is yet to be decided, the commissioner cannot do anything else. (44.) IT is contended that in Section 10 read with Section 11 (f) of 2004 act there is complete mechanism for granting declaration of minority status. Such contention in our view is not appropriate in this case. Section 10 enables any person to apply to the competent authority for the grant of no objection certificate to establish a minority educational institution. Such contention in our view is not appropriate in this case. Section 10 enables any person to apply to the competent authority for the grant of no objection certificate to establish a minority educational institution. This provision is applicable at the initial stage. This competent authority, it appears to us, can grant no objection certificate or refuse it but it has no power to declare a particular existing institution as minority one. The Commission is the appellate authority against the above order refusing to grant no objection certificate. The functions and powers of the Commission constituted under Act of 2004 has been provided in Section 11 of the said Act. It appears to us, that the commission, in the matter of deciding question of granting no objection certificate acts as an appellate authority and this would be clear from Section 12a and Section 12b of the 2004 Act. It is clear from Section 12b of the 2004 act that the Commission cannot pass any order for declaration at the first instance. This initial function has to be performed by the competent authority established by the Central Government or any State Government. In the process of doing so this authority has to reach fact finding about minority. Section 12b of 2004 Act is set out hereunder for better understanding: "12b. Power of the Commission to decide on the minority status of an educational institution: (1) Without prejudice to the provisions contained in the National minority Commission Act, 1992, where any authority established by the Central Government or any State government, as the case may be, for grant of minority status to any educational institution rejects the application for the grant of such status, the aggrieved person may appeal against such order of the authority to the Commission. (2) An appeal under sub-section (1) shall be preferred within thirty days from the date of the order communicated to the applicant : provided that the Commission may entertain an appeal after expiry of the said period of thirty days, if it is satisfied that there was sufficient cause for not filing it within that period. (3) An appeal to the Commission shall be made in such form as may be prescribed and shall be accompanied by a copy of the order against which the appeal has been filed. (3) An appeal to the Commission shall be made in such form as may be prescribed and shall be accompanied by a copy of the order against which the appeal has been filed. (4) On receipt of the appeal under sub-section (3), the Commission may, after giving the parties to the appeal, an opportunity of being heard, decide on the minority status of the educational institution and shall proceed to give such directions as it may deem fit and, all such directions shall be binding on the parties. Explanation : For the purposes of this section and section 12c, authority means any authority or officer or commission which is established under any law for the time being in force or under any order of the appropriate Government, for the purpose of granting a certificate of minority status to an educational institution. " (45.) THUS, the functions of the authorities mentioned in the 2004 Act and also in the 1992 Act are completely different. (46.) IT is urged that under provision of Section 19a (3) (e) (iii) of the West bengal Board of Secondary Education Act, 1963 provides for approval and withholding of the constitution of the Managing Committee. Therefore, education Board under the said Act is the authority to recognize or approve a particular institution as linguistic minority institution. We have considered this contention and having regard to the said provision it appears to us that the provision of Section 19a (3) (e) (iii) merely empowers the Board to approve or withhold approval of special constitution of the Managing Committee. It does not empower the Board to declare whether a particular institution is established and administered by the linguistic minority or not. Similarly, provision of Rule 8 (3) of Management Rules, 1969 does not empower the Executive Committee of the Board to make such declaration. The whole issue is as to whether the court can grant declaration or any other authority can do it. In order to find out answer to this issue we have checked up the Rule 33 of the Management rules, 1969 and it appears to us that the said Rule is having some relevance, and the same is set out hereunder : "33. In order to find out answer to this issue we have checked up the Rule 33 of the Management rules, 1969 and it appears to us that the said Rule is having some relevance, and the same is set out hereunder : "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 institutions to which the provisions of Article 26 or Article 30 of the constitution of India may apply, further or other rules for the composition, powers, functions of the Managing Committee or Committees of such institution or class of Institutions. " (47.) THUS, from the aforesaid Rule it is clear that whether a particular institution is established or administered by the linguistic minority or not could be examined and decided by the State Government before the said Act of 2004 came into force. After this Act of 2004 came into force, one has to apply to competent authority under Section 10 of the said Act for obtaining no objection for establishing such institution. In our view, the Commission under Act of 2004 can act as an appellate authority, if such application is rejected. (48.) IT is rightly contended by Mr. Debabrata Roy, learned Lawyer for the State, that minority status cannot be inferred and/or presumed automatically and it has to be declared and recognized under the provisions of the aforesaid act and Rules. We are of further view that a person has to apply to the government for examining as to whether the institution has been established or administered before the said Act came into force as being a linguistic or religious minority and on receipt of the same Government shall make enquiry and examine that claim. In order to establish a new institution one has to make an application to the competent authority for obtaining no objection certificate. In the event no objection certificate is obtained or deemed to have been obtained under Section 10 of Act 2004 then the Government shall recognize and declare that such an institution is minority institution, Once it is done then it is the power of the Board to approve the special constitution for this minority institution with regard to the management. In the event no objection certificate is obtained or deemed to have been obtained under Section 10 of Act 2004 then the Government shall recognize and declare that such an institution is minority institution, Once it is done then it is the power of the Board to approve the special constitution for this minority institution with regard to the management. All these procedures are to be observed, anything short of this, the Court cannot declare automatically that a particular institution has been established or administered by minority. (49.) AS we have already observed that there are prima facie materials before us that writ petitioners as well as added respondents to the writ petitioners can take steps in accordance with the procedure laid down discussed as above by us. We, for the time being, do not like to make any enquiry into status of minority institution of the writ petitioners. Therefore, all the persons in this matter who are claiming to have established and administered their institutions as being linguistic minority may take steps for applying to the government as all these institutions are established prior to commencement of the Act, 2004. (50.) AT present, we do not find any appropriate authority has been appointed by the Government for this purpose. Therefore, we direct Secretary of Secondary School Education to constitute a team consisting of an official not below the rank of Deputy Director of Secondary Education as the head of this team and the concerned D. I. and one officer as he may think fit, to examine the claim of the writ petitioners and other added respondents. The Committee shall be constituted within one month from the date of communication of this order. Upon making enquiry if it is found that the institutions are established and run by the linguistic minority then such status must be declared and recognized by the Government with framing Rules for composition, powers, functions of the Managing Committee and the Board shall, on application being made, approve the special constitution regarding formation of Managing committee. This enquiry and consequential action must be completed within four months from the date of making application. This enquiry and consequential action must be completed within four months from the date of making application. (51.) WE are of the view that until and unless declaration is made or recognition is granted by the Government on compliance of all the procedures being observed as above a particular institution cannot be said automatically to be an institution of linguistic minority, meaning thereby there cannot be any retrospective operation of the said Act and the school or the schools concerned, cannot be kept outside the purview of the provisions of the School Service commission Act under the provision of Section 15 thereof till then. With the above observation and direction the PIL is disposed of. (52.) IN consequence thereof the respondents/writ petitioners in the appeal of Darjeeling Gorkha Hill Council who are already recommended by the School Service Commission for Darjeeling region are entitled to be appointed by the respective schools to fill up the vacancy. The challenge against the order of the learned Trial Judge is based on the above contention. As this challenge fails the appeal is dismissed. The Commission as well as all institutions and the concerned department of the Darjeeling Gorkha Hill Council are directed to implement the order of the learned Trial Judge. We make it clear that this order, however, will not be treated as a precedent the moment the particular institution or institutions is (are) recognized as a linguistic minority by the Government as above. (53.) THE provision of the Darjeeling Gorkha Hill Council Act, according to us, by virtue of Section 70 is subject to any law whether made before or after the commencement of Darjeeling Gorkha Hill Council Act, 1988. All the functions of the Darjeeling Gorkha Hill Council under the said Act are to be performed and/or discharged in accordance with the provisions of the Darjeeling gorkha Hill Council Act. However, the said Act cannot override in view of section 70, the other laws made by the appropriate legislatures. The said section is reproduced hereunder : "nothing in this Act shall affect the application of law, whether made before or after this Act, to the hill areas, unless such law specifically provided for exclusion of the hill areas from such application. Explanation : For the purposes of this section law shall include any enactment, ordinance, regulation, order, by-law, rule, scheme, notification or other instrument having the force of law. Explanation : For the purposes of this section law shall include any enactment, ordinance, regulation, order, by-law, rule, scheme, notification or other instrument having the force of law. " (54.) THEREFORE, provisions of the West Bengal School Service commission Act, West Bengal Board of Secondary Education Act and the aforesaid Commissions Act and all the Rules are obviously applicable, save and except, the explanation provided in the respective Acts thereof. (55.) THUS, the appeal is dismissed. No order as to costs. (56.) LEARNED Counsel appearing for the Gorkha Hill Council prays for stay of operation of the portion of the judgement, dismissing the appeal. Such prayer for stay is opposed by learned Counsel for the other parties. (57.) WE feel that this judgement has been delivered upon hearing both the matters analogously. It is difficult to dissect any portion of judgement. Therefore, we refuse to grant stay of operation of this judgement.