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2011 DIGILAW 989 (CAL)

Bidyut Kumar Biswas v. STATE OF WEST BENGAL

2011-07-28

HARISH TANDAN

body2011
JUDGMENT Harish Tandon, J. 1. THE writ petitioner has impugned the Memo No. 132/ 1/B/LS dated 24.12.2009 issued by the District Inspector of School (S.E.), Bankura whereby and whereunder the said authority refused to grant approval to the appointment of the petitioner to the Minority Linguistic Educational Institution. 2. THE brief facts are that the petitioner was appointed to the post of Assistant Teacher in Bio-Science in Bankura Christian Collegiate School (Minority Institution) on 2.5.2005. Though the petitioner is discharging his duties from the date of his appointment but his appointment was not approved by the concerned authority. 3. DUE to inaction on the part of the District Inspector of School (S.E.) Bankura to grant approval to the appointment of the petitioner, the petitioner moved writ petition being W.P. No. 8170(W)/2009 before this Court and the same was disposed of on 23.6.2009, directing the said authority to take a decision upon giving the reasonable opportunity of hearing within stipulated period. 4. PURSUANT to the said order the District Inspector of School (S.E)/ respondent No.3 declined to grant approval to the appointment of the petitioner by the impugned decision vide Memo 132/1/B/LS dated 24.12.2009. This Court on 28th March, 2011 directed the respondent to file in affidavit-in-opposition within three weeks from date and the matter was directed to appear after four weeks. In spite of the said direction the respondents have chosen not to file affidavit-in-opposition till the date of hearing. However, the learned advocate appearing for the respondents made submission orally in absence of the affidavit-in-opposition. 5. IT is submitted by the learned advocate appearing for the petitioner that the Educational Institution where the petitioner, has been appointed as an Assistant Teacher of Bio-Science is a Minority Linguistic Educational Institution and is governed by Article 30 of the Constitution of India. He further submits that there is a specific rule governing such Minority Institution where the freedom to appoint the teacher is vested upon the Managing Committee and the said respondent No.3 could not refuse to grant approval to the appointment of the petitioner made by the Managing Committee. IT is further submitted that any Government order which interferes with the freedom enjoyed by the Minority Linguistic Educational Institution Society, under Article 30 of the Constitution of India cannot said to be legal and is liable to be quashed and set aside. 6. IT is further submitted that any Government order which interferes with the freedom enjoyed by the Minority Linguistic Educational Institution Society, under Article 30 of the Constitution of India cannot said to be legal and is liable to be quashed and set aside. 6. RELIANCE is placed upon a judgment of this Court in case of Khshadhwai Mondal and Ors. v. State of West Bengal and Ors. reported in 2008 (1) CLJ 167 where it is held that any Government order which has an impact of superseding the special rules as well as interferes with Article 30 of the Constitution of India can not said to be legal. Thus it is lastly contended that the Government order dated 12th September, 2002 cannot operate as a bar in granting approval to the post of Assistant Teacher in the said Minority Linguistic Educational Institution. Per contra, the learned advocate appearing for the respondent contends that under Rule 33 of the Management of Recognized Non Government Institution (Aided and Unaided) Rule, 1969, the State Government has a power to frame rules subject to certain restrictions. By Government order No. 1314 (50)-S.E./(S)/4A-35/02 dated 17th September, 2002, it is clearly stipulated that no candidate shall be appointed by the Selection Committee or the Managing Committee of the said School without obtaining prior permission of the District Inspector of School. Thus, he contends that no prior approval for appointment of a teacher was taken by this institution. The decision of the respondent No.3, to decline to grant approval to the appointment of the petitioner, cannot be said to be invalid or illegal. 7. HAVING considered the respective submissions made by the learned advocates, it is undisputed that the School where the petitioner has been appointed as Assistant Teacher is a Minority Linguistic Educational Institution. 8. ARTICLE 30(1) of the Constitution of India confers right upon the Minority Institution to establish and administer the educational institution of their choice. 7. HAVING considered the respective submissions made by the learned advocates, it is undisputed that the School where the petitioner has been appointed as Assistant Teacher is a Minority Linguistic Educational Institution. 8. ARTICLE 30(1) of the Constitution of India confers right upon the Minority Institution to establish and administer the educational institution of their choice. The majority in the 11 judges Bench of the apex Court in case of T.M.A Pai Foundation v. State of Karnataka reported in (2002) 8 SCC 481 held that the right to appoint the teaching and non-teaching staff in respect of the minority linguistic educational institution is one of the important facet of the minority's right to administer under Article 30(1) of the Constitution of India, even if the said minority linguistic educational institution receives aid from the state or its agencies in these words: "143. This means that the right under Article 30(1) implies that any grant that is given by the State to the minority institution cannot have such conditions attached to it, which will in any way dilute or abridge the rights of the minority institution to establish and administer that institution. The conditions that can normally be permitted to be imposed, on the educational institutions receiving the grant, must be related to the proper utilization of the grant and fulfilment of the objectives of the grant. Any such secular conditions so laid, such as a proper audit with regard to the utilization of the funds and the manner in which the funds are to be utilized, will be applicable and would not dilute the minority status of the educational institutions. Such conditions would be valid if they are also imposed on other educational institutions receiving the grant." 9. SECTION 45 of the West Bengal Board of Secondary Education Act, 1963 empowers the State Government to make rules for various matters including the composition, power and functions of Managing Committee of the institution. Pursuant to the said power the state Government framed Management of recognized non Government Institutions (Aided and Unaided) Rules, 1969 (hereafter referred to as the Management Rules.) 10. Pursuant to the said power the state Government framed Management of recognized non Government Institutions (Aided and Unaided) Rules, 1969 (hereafter referred to as the Management Rules.) 10. RULE 33 of the said Management Rules provided that the state has power to frame further or other rules for composition power, functions of the Managing Committee or committees of such institutions or class of institutions to which the provision under Article 26 or Article 30 of the Constitution of India applies. Pursuant to such power special rules for management of Secondary Schools established and run by the Christian Church/Missionaries Society (Board)/Religious Society/Subsidiary Trust or their successor-in-law in the State Government of West Bengal was promulgated. 11. RULE 7 of the said special Rules defines the power of the School Committee which apart from others includes powers relating to the appointment and determination of number of teachers and non teaching staffs. 12. ANY action which curtails, dilutes or abridges the rights of the Minority Institutions conferred by the Article 30 of the Constitution of India can not get a legal sanction. The Supreme Court in case of Secretary, Meslankar Syrian Catholic College v. T. Jose reported in (2007) 1 SCC 386 , upon considering the law laid down in case of T.M.A. Pal Foundation (Supra) and P.A. Imandar v. State of Maharashtra reported in 2005 (6) SCC 537 held: "19. The general principles relating to establishment and administration of educational institution by minorities may be summarised thus: (i) The right of minorities to establish and administer educational institutions of their choice comprises the following rights: (a) to choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution; (b) to appoint teaching staff (teachers/lecturers and Headmasters/ Principals) as also non-teaching staff, and to take action if there is dereliction of duty on the part of any of its employees; (c) to admit eligible students of their choice and to set up a reasonable fee structure; (d) to use its properties and assets for the benefit of the institution. (ii) The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-a-vis the majority. There is no reverse discrimination in favour of minorities. (ii) The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-a-vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation, etc. applicable to all, will equally apply to minority institutions also. (iii) The right to establish and administer educational institutions is not absolute. Nor does it include the right to mala minister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1). (iv) Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/lecturers by adopting any rational procedure of selection. (v) Extension of aid by the State does not alter the nature and character of the minority educational institution. Conditions can be imposed by the State to ensure proper utilisation of the aid, without however diluting or abridging the right under Article 30(1)." 13. THE Supreme Court further held in the judgment delivered in Secretary, Meskmkar Syrian Catholic College (Supra), the extent of regulation which can be made by the state In respect of the employees of the State Minority Linguistic Educational Institution in these words: "21. We may also recapitulate the extent of regulation by the State, permissible in respect of employees of minority educational institutions receiving aid from the State, as clarified and crystallised in T.M.A. Pai. We may also recapitulate the extent of regulation by the State, permissible in respect of employees of minority educational institutions receiving aid from the State, as clarified and crystallised in T.M.A. Pai. THE State can prescribe: (i) the minimum qualifications, experience and other criteria bearing on merit, for making appointments, (ii) the service conditions of employees without interfering with the overall administrative control by the management over the staff, (iii) a mechanism for redressal of the grievances of the employees, (iv) the conditions for the proper utilisation of the aid by the educational institutions, without abridging or diluting the right to establish and administer educational institutions." 14. IN other words, all laws made by the State to regulate the administration. of educational institutions and grant of aid will apply to minority educational institutions also. But if any such regulations interfere with the overall administrative control by the management over the staff, or abridges/dilutes, in any other manner, the right to establish and administer educational institutions, such regulations, to that extent, will be inapplicable to minority institutions. In view of the law enunciated by the Apex Court in case of T.M.A. Pai Foundation (Supra) and Secretary, Meslankar Syrian Catholic College (Supra), any action of the state by curtaining the power of the Managing Committee of the Minority Linguistic Educational Institution to appoint the teaching and non-teaching staffs cannot said to be legal and valid. 15. EVEN Rule 7(I) of the special rules gives power upon the School Committee to determine the teachers and non-teaching employees. Nowhere in the said special rule a condition is attached that an appointment should be made by the Minority Linguistic Educational Institution to the post of a teacher with prior approval of the District Inspector of School (S.F.). Appointment of a teaching and non-teaching staff is one of the basic ingredients under the Management and administration and those are being immuned from being curtailed under the constitutional mandate. 16. THE action of the District Inspector of School (S.F.) in rejecting the prayer for approval to the appointment of the petitioner on the plea that the prior permission for creation of the posts is not sustainable and cannot said to be legal and valid. Thus the impugned memo bearing No. 132/1 /B/LS dated. 24.12.2009 is not legal and valid and is therefore quashed and set aside. 17. Thus the impugned memo bearing No. 132/1 /B/LS dated. 24.12.2009 is not legal and valid and is therefore quashed and set aside. 17. THE District Inspector of School is directed to grant approval to the appointment of the petitioner within six weeks from the date of the communication of this order. 18. THE said authority shall give the actual financial benefit to the petitioner from the date of the approval but the same shall be calculated by giving a notional benefit from the date of the appointment of the petitioner to the post of Assistant Teacher by the Managing Committee of the said Educational Institution. The writ petition is thus allowed. There shall be no order as to costs. Writ petition allowed.