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2019 DIGILAW 35 (CAL)

Subhasis Mondal v. State of West Bengal

2019-01-10

ARIJIT BANERJEE

body2019
JUDGMENT : ARIJIT BANERJEE, J. 1. The petitioner was appointed as an Assistant Teacher of Bengali in the respondent school on 26 March, 2013. He joined service on 2 April, 2013. He was initially on probation. The probationary period ended on 31 March, 2015. Thereafter, a vacancy arose due to resignation of an approved Assistant Teacher of language group and the petitioner was confirmed in that vacancy on or about 15 April, 2015. 2. The short grievance of the petitioner is that his name does not figure in the final voter list dated 28 September, 2018 published for the Teachers' Representative Election, 2018. He contends that names of other similarly placed unapproved teachers (confirmed) are included in the said list but his name has been omitted. 3. Learned Counsel for the petitioner initially relied on the Special Rules for Management of Secondary Schools established and run by a Christian Church/Missionary Society (Board)/Religious Society/Subsidiary Trust or their successors-in-law in West Bengal. These Rules were framed by the State Government in exercise of power under R. 33 of the Rules for Management of Recognized Non-Government Institutions (Aided and Unaided), 1969. The Special Rules provided for representative of the teachers on the General Committee of the School. Learned Counsel submitted that following the said Special Rules, the last Managing Committee of the respondent school was constituted in March, 2015. The term of the Managing Committee was valid up to 9 March, 2018. 4. Mr. Jana, learned Counsel for the petitioner submitted that R. 33 of the 1969 Rules was omitted by notification dated 29 August, 2008. There is no existence of R. 33 from that date. Hence, the Special Rules which were framed in exercise of power under R. 33 also closed to exist. Therefore, the 1969 Rules will apply to the respondent school. The R. 6 of the Management Rules 1969 provides for three teaching staff on the General Committee of the school. The petitioner, as a confirmed teacher of the school is entitled to participate in the election of the Teachers' Representative. He is being wrongfully prevented from doing so. 5. Mr. Therefore, the 1969 Rules will apply to the respondent school. The R. 6 of the Management Rules 1969 provides for three teaching staff on the General Committee of the school. The petitioner, as a confirmed teacher of the school is entitled to participate in the election of the Teachers' Representative. He is being wrongfully prevented from doing so. 5. Mr. Baid, Learned Counsel for the respondent school pointed out that R. 32 of the 1969 Rules provides that the said Rules shall not apply to, inter alia, Non-Government aided Educational Institutions established and administered by a Minority referred to in Sec. 2 (c) of the West Bengal Minorities Commission Act, 1996. He submitted that admittedly the respondent school is such an educational institution. Hence, the 1969 Rules would not apply to the respondent school. 6. Mr. Jana responded to the said argument by submitting that it is not possible that no Rules would be applicable to the respondent school. There must be some Rule that will govern the conduct of election of the General Committee of the School. In this connection he referred to amended R. 32 of the 1969 Rules which was brought in by a notification dated 29 August, 2008 in substitution of the earlier R. 32. The amended Rule 32 reads as follows:- "R. 32. Rules not to apply to certain Institutions: Nothing in these rules shall apply to- (a)The Institutions maintained and managed by the State Government, the Central Government or the Railway Board; or (b) The Institutions managed under the provisions of the St. Thomas School Act, 1923 (Bengal Act XII of 1923); or (c)The non-Government aided Educational Institution established and administered by a Minority referred to in clause (c) of section 2 of the West Bengal Minorities' Commission Act, 1996 (West Bengal Act XVI of 1996 : or (d) Such other Institution as the State Government may, by order specify. Explanation : For removal of any doubt, it is hereby declared that the State Government may, for the purpose of ensuring quality education, access and equity, on an application made by any non-Government aided Educational Institution referred to in clause (c), make rules under the provisions of the said Act for the composition, powers, functions etc. of the Committee of such Institution;" Referring to the explanation to amended Rule 32, Mr. of the Committee of such Institution;" Referring to the explanation to amended Rule 32, Mr. Jana submitted that it is incumbent on the respondent school to apply to the State Government to frame rules under the provisions of the West Bengal Minorities' Commission Act, 1996 for the composition, powers, functions etc. of the Committee of the school. He submitted that when the respondent school is receiving recurring financial assistance from the State Government in the shape of dearness allowance for its employees, it must be subjected to some rules and regulations framed and approved by the State Government and the Managing Committee cannot run the school arbitrarily and on its own whims. Minority institutions like the respondent school do not, under Art. 30 of the Constitution, have absolute and unfettered right to manage their own affairs. The State Government has the right to regulate the administration of such institutions. In this connection, learned Counsel referred to the following three decisions:- (i) In Re: The Kerala Education Bill, AIR 1957, 1958 SC 956. (ii) Rev. Father W. Proost & Ors. Vs. State of Bihar & Ors., AIR 1969 SC 465 . (iii) Don Bosco School & Anr.-vs.-Luton Thakur & Ors.,1997 2 CalHN 613. 7. Mr. Baid learned Counsel for the respondent school submitted that upon omission of R. 33 of the 1969 Rules and the consequent extinction of the Special Rules, even on the face of the amended R. 32 of the 1969 Rules, an aided minority school can be administered by its founder body in a manner as it thinks fit and proper without any fetters from the Government. He referred to Art. 30(1) of the Constitution of India which provides that "all minorities, based on religion or language, shall have the right to establish and administer educational institutions of their choice." 8. Mr. Baid then referred to the decision of the Apex Court in the case of TMA Pai Foundation & Ors.-vs.-State of Karnataka & Ors., (2002) 8 SCC 481 , wherein at paragraph 54 of the judgment the Apex Court observed as follows:- "54. The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of mal-administration by those in charge of management. The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of mal-administration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions." 9. Mr. Baid also relied on the decision of the Apex Court in the case of Secy. Malankara Syrain Catholic College-vs.-T. Jose & Ors., (2007) 1 SCC 386 , wherein at paragraph 19 of the judgment the Apex Court observed as follows:- "19. The general principles relating to establishment and administration of educational institution by minorities may be summarized 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. 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 mal-administer. 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. Nor does it include the right to mal-administer. 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 utilization of the aid, without however diluting or abridging the right under Article 30(1)." 10. Relying on the aforesaid two judgments, learned Counsel submitted that a minority institution has fundamental right under Art. 30(1) to administer its own affairs in the manner it deems fit without state Government intervention so long as there is no maladministration of the affairs of the institution. He conceded that the State can take regulatory measures for ensuring educational character and standards and maintaining academic excellence. However, in the instant case, there is no regulation made by the Government which requires induction of Teachers' Representative in the Managing committee of the School. 11. Mr. Baid further submitted that R. 32 of the 1969 Rules, even as amended, does not impose any obligation on the concerned minority institution to apply to the State Government for making Rules for composition, powers, functions etc. of the Committee of such institution. 12. In response to Mr. Jana's argument based on Art. 14 of the Constitution of India that other teachers similarly situate had been permitted to participate in the Teachers' Representative Election, Mr. Baid submitted that the respondent school is not a State within the meaning of Art. 12 of the Constitution. Art. 14 applies only to State and Statutory Authorities. Further, Art. 14 does not give any negative right. Baid submitted that the respondent school is not a State within the meaning of Art. 12 of the Constitution. Art. 14 applies only to State and Statutory Authorities. Further, Art. 14 does not give any negative right. If other teachers have been granted some concession erroneously the same cannot create any positive right in favour of the petitioner. 13. Learned Counsel for the State relied on two decisions of the Apex Court. Firstly he relied on a decision in the case of Government of Andhra Pradesh & Anr.-vs.-Corporation Bank, (2007) 9 SCC 55 . This decision was relied on in support of the submission that in construing a statutory provision, the first and foremost rule of construction is literal construction. If the provision is unambiguous and if from that provision the legislative intent is clear, we need not call into aid the other rules of construction which are invoked only when legislative intent is not clear. An Explanation to a section must be read ordinarily to clear up any ambiguity in the main section and it cannot be construed to widen the ambit of the section. However, if on a true reading of an Explanation it appears to the court in a given case that the effect of the Explanation is to widen the scope of the main section, then, effect must be given to the legislative intent. With respect, I do not find how this decision is relevant to the facts of the instant case. The Explanation to amended R. 32 of the 1969 Rules is unambiguous and clear and no cannons of statutory interpretation need be resorted to, to understand the meaning thereof. 14. The second decision relied on by learned Counsel for the State is in the case of M/s. Vrajlal Manilal And Co. & Anr.-vs.-State of M.P. & Anr., (1986) Supp1 SCC 201. This decision was relied on to support the proposition that merely because a particular provision in a statute is labelled as an Explanation, it does not mean that it is inserted merely with a view to explain the meaning of words contained in the section of which it forms a part. The true scope and effect of an Explanation can only be judged by its express language and not merely by the label given to it. The true scope and effect of an Explanation can only be judged by its express language and not merely by the label given to it. Again with the deepest of respect, I do not find the said decision to be germane in any manner to the facts of the present case. Court's View:- 15. Admittedly the respondent school is a minority institution. It is conceded by learned Counsel for the petitioner and as is indeed the case, the Special Rules for Management of Secondary Schools established and run by a Christian Church/Missionary Society (Board)/Religious Society etc. ceased to exist with the omission of R. 33 of the 1969 Rules by notification dated 29 August, 2008. The question is as to whether or not the other provisions of the 1969 Rules will apply to the respondent school. The answer is clearly in the negative. R. 32 leaves no room for any doubt that the 1969 Rules would not apply to non-Government Aided Educational Institutions established and administered by a Minority referred to in Sec. 2(c) of the West Bengal Minorities Commission Act, 1996. It is not in dispute that the respondent school is such an educational institution. Hence, the 1969 Rules do not apply to the respondent school. 16. Learned Counsel for the petitioner argued that the Explanation to R. 32 of the 1969 Rules makes it obligatory for a minority school to apply to the Government to make Rules for composition, powers, functions etc. of the General Committee of the institution. I am unable to accept such contention. The Explanation merely gives liberty to a Minority Aided Educational Institution referred to in R. 32(c) of the 1969 Rules to make an application to the State Government for the purpose of framing Rules under the West Bengal Minorities Commission Act, 1996 for the purpose of ensuring quality education, access and equity. It is a discretion given to the Minority Aided Educational Institutions. It is up to a particular institution to decide whether or not to make such an application to the State Government. I am unable to read the Explanation as constituting a mandate on a Minority Aided Educational Institution to apply to the Government for framing Rules. 17. As held by the Apex Court in the cases of TMA Pai Foundation & Ors. (supra) and Secy. I am unable to read the Explanation as constituting a mandate on a Minority Aided Educational Institution to apply to the Government for framing Rules. 17. As held by the Apex Court in the cases of TMA Pai Foundation & Ors. (supra) and Secy. Malankara Syrain Catholic College (supra), regulations may be made by the State concerning generally the welfare of students and teachers and to maintain the standard of education in Minority Aided Educational Institutions but laying down Rules governing the day to day administration of affairs of such institution would not be permissible and would be violative of Art. 30(1) of the Constitution. Fixing of a fee structure or framing Rules regarding formation and composition of its governing body etc. would be unacceptable restrictions. Of course, right to administer does not include right to mal-administer. If mal-administration is detected the State Government can surely interfere. 18. In view of the aforesaid, I am of the view that the founder body of the respondent school can hold election of its General Committee/Governing Body in the manner that they deem fit and proper so long as the process is fair. The petitioner has no vested right to have his name include in the voters' list or to contest for the post of Teachers' Representative on the General Committee. Indeed, there is no Rule or Regulation requiring the management of the school to have a Teachers' Representative on the General Committee of the respondent school. 19. The argument advanced on behalf of the petitioner to the effect that by not including the petitioner's name in the voters' list, Art 14 of the Constitution has been violated, also cannot be accepted. Mr. Baid is right. Article 14 applies only to State and Statutory Authorities and not to a minority private institution. In any event, Article 14 does not envisage a negative right. Even if in the past, the names of certain teachers similarly situate as the petitioner were included in the voters' list, the same cannot create any positive right in favour of the petitioner. 20. In so far as the decisions cited by Learned Counsel for the petitioner are concerned, the same do not advance the case of the petitioner. Even if in the past, the names of certain teachers similarly situate as the petitioner were included in the voters' list, the same cannot create any positive right in favour of the petitioner. 20. In so far as the decisions cited by Learned Counsel for the petitioner are concerned, the same do not advance the case of the petitioner. In Re: The Kerala Education Bill (supra), the Apex Court observed that Article 30(1) of the Constitution confers on minorities, religious or linguistic, the right to establish and maintain their own educational institutions without any interference or hindrance from the State. The minorities should have the right to live and should be allowed by the State to live their own cultural life as regards religion or language. The State cannot prohibit the establishment of such institutions and should not interfere with the administration of such institutions by the minorities. The true intention of Article 30(1) is to equip the minorities with a shield whereby they could defend themselves against attacks by majorities, religious or linguistic. In Rev. Father W. Proost & Ors. (supra), the Apex Court held that the language of Art. 30(1) is very wide and must receive its full meaning. Any attempt to whittle down the protection of minorities granted by the said Article cannot be allowed. In Don Bosco School & Anr. (supra), a Learned Single Judge of this Court held that the protective umbrella of Art. 30 of the Constitution does not confer an unlimited right on a religious minority group to run its institution according to its whim and caprice and administration does not include mal-administration. The right conferred by Art. 30 is not an unfettered right but is subject to the principles of equality in the eye of law, arbitrariness, natural justice and human rights. 21. I do not see how the aforesaid three decisions help the petitioner. No case of mal-administration of the affairs of the respondent school has been made out. The petitioner has not been able to demonstrate that he has any vested right to participate in the election process. No legal right of the petitioner has been infringed by any action on the part of the management of the respondent school. 22. In view of the aforesaid, I am unable to grant any relief to the petitioner. The writ petition fails and is dismissed without any order as to costs. 23. No legal right of the petitioner has been infringed by any action on the part of the management of the respondent school. 22. In view of the aforesaid, I am unable to grant any relief to the petitioner. The writ petition fails and is dismissed without any order as to costs. 23. Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.