# 13 $.C.R. 796 CHANDANA DAS v. STATE OF WEST BENGAL & ORS

- **Citation:** [2014] 13 S.C.R. 796
- **Court:** Supreme Court of India
- **Decided:** 2014-12-11
- **Case number:** Civil Appeal No. 2858 of 2007
- **Bench:** T. S. Thakur, R. Banumathi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/13-c-r-796-chandana-das-v-state-of-west-bengal-ors-29657
- **Pages:** 46

## Headnote

Constitution of India, 1950 -Arts 26 and 30 - Khalsa
C Girls High School in Calcutta - Whether the said School, a ·
minority Institution entitled to appoint its own teachers -
Whether the Institution's right to select and appoint teachers
is affected by the provisions of the 1969 Rules - Held: In
view of difference of opinion between two Hon'ble Judges,
D matter referred to larger Bench - Rules of Management of
Recognised Non-Gover.nment Institutions (Aided and
Unaided), 1969 - rr. 28, 33, 8(3) - West Bengal Board of
Secondary Education Act, 1963.
E
Referring the matters to the larger Bench, the Court
Per T.S. Thakur, J.:
HELD: 1.1 Linguistic institution and religious are
entitled to establish and administer their institutions.
Such right of administration includes the right of
F appointing teachers of its choice but does not denude
the state of its power to frame regulations that may
prescribe the coflditions of eligibility for appointment of
such teachers. The regulations can also prescribe
measures to ensure that the institution is run efficiently
G for the right to administer does not include the right to
maladministration. While grant in aid is not included in
the guarantee contained in the Constitution to linguistic
and reli~Jious minorities for establishing and running their
educational institutions, such grant cannot be denied
H
796
CHAN DANA DAS v. STATE OF WEST BENGAL
797
to such institutions only because the institutions are A
establis·hed by linguistic or religious minority. Grant of
aid cannot, however, be made subservient to conditions
· which deprive the institution of their substantive right of
administering such institutions. Once respondent No.4institution is held to be a minority institution entitled to B
the protection of Articles 26 and 30 of the Constitution,
the right to appoint teachers of its choice who satisfy
the condi~ions of eligibility prescribed for such
appointments under the relevant rules is implicit in their
rights to administer such institutions. Such rights cannot C
then be diluted by the State or its functionaries insisting
that the appointment should be made only with the
approval of the Director or by following the mechanism
generally prescribed for institutions that do not enjoy 0
the minority status. [Para 16][817-H; 818-A-F]
1.2 The view taken by the Division Bench of the
High Col;lrt that appointments of the appellants were
dehors the rules inasmuch as they were not made by
the School Service Commission hence did not qualify E
for approval, cannot be accepted. The mechanism
provided for making appointments under Rule 28 of the
Rules of Manage.ment of Recognised Non-Government
Institutions (Aided and Unaided), 1969 has no application
to minority educational institutions. Placed in F
juxtaposition to Rule 33, it is self evident that while Rule
28 applies generally to other institutions; Rule 33 is more
specific in its application to minority educational
institutions covered by Article 26 or 30 of the
Constitution. In the absence of any rules framed for such G
minority educational institutions, the minority
educational institution in the instant case was entitled
to select and appoint its teachers so long as other
conditions for such appointments, namely, availability
H
798
SUPREME COURT REPORTS
[2014] 13 S.C.R.
A of substantive vacancies and the eligibility of the
candidates for such appointments were duly satisfied.
[Para 17, 18][818-F-H; 826-D-F]
1.3 The appellants were both duly qualified for
8 appointment as teachers in the subject concerned; and
that they have been serving for a considerable length of
time on a meagre salary which the institution has been
paying to them in the absence of the State Government
recognising the appointments and releasing grant in aid
C against their posts. [Para 19][826-G-H]
1.4 As regards the absence of a sanctioned post as
on the date the appointments were made, it was
submitted that vacancies had subsequently arisen
against which the appointments

## Text

_Characters 0–39,983 of 83,406. This is a partial read: ask again with offset=39983 for what follows._

A
B
[2014] 13 $.C.R. 796
CHANDANA DAS
v.
STATE OF WEST BENGAL & ORS.
(Civil Appeal No. 2858 of 2007)
DECEMBER 11, 2014
[T. S. THAKUR AND R. BANUMATHI, JJ.]
Constitution of India, 1950 -Arts 26 and 30 - Khalsa
C Girls High School in Calcutta - Whether the said School, a ·
minority Institution entitled to appoint its own teachers -
Whether the Institution's right to select and appoint teachers
is affected by the provisions of the 1969 Rules - Held: In
view of difference of opinion between two Hon'ble Judges,
D matter referred to larger Bench - Rules of Management of
Recognised Non-Gover.nment Institutions (Aided and
Unaided), 1969 - rr. 28, 33, 8(3) - West Bengal Board of
Secondary Education Act, 1963.
E
Referring the matters to the larger Bench, the Court
Per T.S. Thakur, J.:
HELD: 1.1 Linguistic institution and religious are
entitled to establish and administer their institutions.
Such right of administration includes the right of
F appointing teachers of its choice but does not denude
the state of its power to frame regulations that may
prescribe the coflditions of eligibility for appointment of
such teachers. The regulations can also prescribe
measures to ensure that the institution is run efficiently
G for the right to administer does not include the right to
maladministration. While grant in aid is not included in
the guarantee contained in the Constitution to linguistic
and reli~Jious minorities for establishing and running their
educational institutions, such grant cannot be denied
H
796
CHAN DANA DAS v. STATE OF WEST BENGAL
797
to such institutions only because the institutions are A
establis·hed by linguistic or religious minority. Grant of
aid cannot, however, be made subservient to conditions
· which deprive the institution of their substantive right of
administering such institutions. Once respondent No.4institution is held to be a minority institution entitled to B
the protection of Articles 26 and 30 of the Constitution,
the right to appoint teachers of its choice who satisfy
the condi~ions of eligibility prescribed for such
appointments under the relevant rules is implicit in their
rights to administer such institutions. Such rights cannot C
then be diluted by the State or its functionaries insisting
that the appointment should be made only with the
approval of the Director or by following the mechanism
generally prescribed for institutions that do not enjoy 0
the minority status. [Para 16][817-H; 818-A-F]
1.2 The view taken by the Division Bench of the
High Col;lrt that appointments of the appellants were
dehors the rules inasmuch as they were not made by
the School Service Commission hence did not qualify E
for approval, cannot be accepted. The mechanism
provided for making appointments under Rule 28 of the
Rules of Manage.ment of Recognised Non-Government
Institutions (Aided and Unaided), 1969 has no application
to minority educational institutions. Placed in F
juxtaposition to Rule 33, it is self evident that while Rule
28 applies generally to other institutions; Rule 33 is more
specific in its application to minority educational
institutions covered by Article 26 or 30 of the
Constitution. In the absence of any rules framed for such G
minority educational institutions, the minority
educational institution in the instant case was entitled
to select and appoint its teachers so long as other
conditions for such appointments, namely, availability
H
798
SUPREME COURT REPORTS
[2014] 13 S.C.R.
A of substantive vacancies and the eligibility of the
candidates for such appointments were duly satisfied.
[Para 17, 18][818-F-H; 826-D-F]
1.3 The appellants were both duly qualified for
8 appointment as teachers in the subject concerned; and
that they have been serving for a considerable length of
time on a meagre salary which the institution has been
paying to them in the absence of the State Government
recognising the appointments and releasing grant in aid
C against their posts. [Para 19][826-G-H]
1.4 As regards the absence of a sanctioned post as
on the date the appointments were made, it was
submitted that vacancies had subsequently arisen
against which the appointments of the appellants could
D be approved and the salary payable to them from the
date of such vacancies becoming available released. If
that be so, there is no reason why the appointments of
the appellants should not be approved with effect from
the date of such vacancies becoming available against
E which such appointments could be regularised. To that
extent the relief prayed for by the appellants shall
suitably moulded. [Para 20][827-A-C]
1.5 The orders passed by the Division Bench of the
F High Court are set aside and the writ petitions filed by
the appellants are allowed with a direction to the
respondents to grant approval to the appointment of the
appellants with effect from the date vacancies became
G
H
available for such appointments. [Para 21][827-D-E]
The Ahmed a bad St. Xavier's College Society and
Anr. v. State of Gujarat and Anr. 1975 (1) SCR 173
: (1974) 1 SCC 717; St. Stephen's College v.
University of Delhi 1991 (3) Suppl. SCR 121 :
(1992) 1 SCC 558; T.M.A Pai Foundation v. State
CHANDANADAS v. STATE OF WEST BENGAL
799
of Karnataka 2002 (3) Suppl. SCR 587 : (2002)
A
8 SCC 481; Sindhi Education Society and Anr. v.
Chief Secretary, Government of NCT of Delhi and
Ors. 201 o (8) SCR 81 : (201 O) 8 sec 49 -
referred to.
Per Banumathi, J.:(Dissenting)
B
HELD: 1.1 Merely because an educational
institution is established by a religious or linguistic
minority, it does not automatically become a minority
institution for the purposes of claiming right of C
administration and for getting grant-in-aid. The
concerned educational institution so established by the
religio"us or linguistic minority must be recognized or
·granted the status of minority institution by the
competent authorities. The fourth respondent-school D
was established by the Sikh Community in 1932 and
adopted its constitution and bye-laws in 1945. That Sikh
Community being a minority in the State of West Bengal
does not necessarily imply that the fourth respondentschoo I would be minority institution as per law. E
According to the official respondents, minority status
was never granted to the fourth respondent-school and
only Special Constitution of Management was granted
to the school as is seen from the proceedings dated F
3;10.1985 of the West Bengal Board of Secondary
Education. There is nothing on record to show that the
school was granted minority status by the competent
authority. [Para 9, 11)[831-E-G; 833-B]
1.2 Rule 33 of the Rules for Management of G
Recognized Non-Government Institutions (both Aided
and Unaided) enables the State Government to frame
further rules for certain institutions to which the
provisions of Article 26 or Article 30 of the Constitution
H
800
SUPREME COURT REPORTS
[2014] 13 S.C.R.
A of India may apply. Though the fourth respondentschool contends that in terms of Rule 33 of the Rules,
no special rules have been framed for minority
community institutions, in its representation, the fourth
respondent-school requested for grant of minority
B status in terms of the said rules framed under Rule 33.
The appellants as well as the fourth respondent-school
relied upon the document signed by a member of the
West Bengal Minorities Commission (dated 6.10.1999)
stating that Khalsa Girls High School is enjoying the
C status of a linguistic minority institution having all
facilities enjoyable and available under Articles 29(1) and
30(1) of the Constitution of India. Neither the appellants
nor the fourth respondent-school produced any
0
document issued by the competent authority, namely,
the West Bengal Board of Secondary Education, granting
minority status to fourth respondent-school. In the
absence of·any order by the competent authority, the
fourth respondent-school is bound by the mandate
E contained in the Rules. In the absence of any such order
issued by the competent authority or material, the fourth
respondent-school cannot claim the status of a minority
institution. In terms of Rule 28, the fourth respondentschool can only appoint in permanent posts the persons/
F teachers, who have been recommended by the West
Bengal Regional School Service Commission. When the
fourth respondent-school has not been granted minority
status, the fourth respondent-school cannot appoint its
own teachers dehors Rule 28 of the Rules. Admittedly,
G the appellants were appointed dehors Rule 28 and they
cannot seek direction for approval of their appointment
and arrears of salary. [Paras 12, 13)[833-F·H; 834-A-H]
H
1.3 The fourth respondent-school being a
recognized aided institution is bound by the 1969 Rules.
CHAN DANA DAS v. STATE OF WEST BENGAL
801
Permission for Special Constitution was granted to the A
fourth respondent-school in terms of Rule 8(3) of the
Rules. Having accepted the Special Constitution in terms
of Rule 8(3), the fourth respondent-school cannot turn
round and contend that it is a minority institution as per
special rules framed in terms of Rule 33. Having not B
challenged the permission for Special Constitution,
fourth-respondent-school cannot place reliance on the
above decision to contend that it is only a minority
institution. [Para 15][835-G-H; 836-A-C]
c
1.4 Relying upon a document signed by a Member
of West Bengal Minorities Commission, on behalf of
respondent Nos.4 and 5 a feeble attempt was made to
contend that fourth respondent-school was granted
minority status with effect from the said date, i.e. o
6.10.1999, and by virtue of the said document the fourth
respondent-school must be deemed to be a minority
institution. The said document is signed by only a
Member of the West Bengal Minorities Commission. The
proceedings (dated 3.10.1985) of West Bengal Board of E
Secondary Education continuing the permission of
special constitution states that the special constitution
of the fourth respondent school is continued until further
orders. The fourth respondent- school has not produced
any material showing that over the years it has been F
appointing its own teachers dehors Rule 28 and that
those appointments were approved by the 0105.
[Para 16][836-C-G]
1.5 Special constitution has been granted to the G
fourth respondent-school in terms of Rule 8(3) of the
Rules. A reading of Rule 8(3) thereon would clearly show
that the institution having special constitution cannot
have a managing committee of its own, but the managing
committee should be in terms of Rule 8(3) of the Rules H
802
SUPREME COURT REPORTS
[2014) 13 S.C.R.
A which indicates that the right of the institution to have
the managing committee is curtailed. The right of the
minorities is to establish and to administer educational
institutions of their choice. Choice must be an absolute
choice of the minority community. The moment the said
B right is abridged, the choice no longer remains a choice.
The Division Bench of the High Court rightly held that
Rule 8(3) amounts to an imposition abridging the
fundamental right and, therefore, a special constitution
permitted under Rule 8(3) cannot be in relation to
C minority community institutions. [Para- 22][839-E-H;
840-A-C]
1.6 The fourth respondent-school has accepted the
special constitution in terms of Rule 8(3) and it has not
D chosen to challenge the same. The High Court rightly
held that when the fourth respondent-school accepted
the special constitution and did not claim to be a minority
institution, the appellants who are merely employees of
such an institution, cannot contend that the institution
E was a minority institution governed by the Special Rules
framed by the State under rule 33 and entitled to appoint
its own teachers. [Para 23][840-D-F]
1.1 Since the ~ppeliants were appointed dehors the
F provisions contained in Rule 28 of the Rules, the High
Court rightly held that their appointment is in
contravention of the Rules and beyond the sanctioned
strength at the relevant time and no direction could be
issued for approval of their appointment. The order of
G the High Court does not suffer from any infirmity
H
warranting interference. [Para 24][840-F-G]
T.M.A. Pai Foundation & Ors. v. State ofKarnataka
& Ors. 2002 (3) Suppl. SCR 587: (2002) 8 SCC
481 .;.. held inapplicable.
CHAN DANA DAS v. STATE OF WEST BENGAL
803
In Re: The Kera/a Education Bill, 19571959 SCR
A
· 995; The Ahmedabad St. Xaviers College Society
&Anr. v. State of Gujarat &Anr. 1975 (1) SCR 173
: (1974) 1 SCC 717; N. Ammad vs. Manager,
Emjay High School & Ors. 1998 (1) Suppl.
SCR 453: (1998) 6 SCC 674- referred to. ·
B
Case Law Reference:
In the judgment by Thakur, J.
1975 (1) SCR 173
referred to
Para 11
1991 (3) Suppl. SCR 121 referred to
Para 13
2002 (3) Suppl. SCR 587 referred to
Para 14
2010 (8) SCR 81
referred to
Para 15
In the judgment by Banumathi, J.
1959 SCR 995
referred to
Para 8
1·975 (1) SCR 173
referred to
Para 8
2002 (3) Suppl. SCR 587 held inapplicable Para 9
1998 (1) Suppl. SCR 453 referred to
Para 14
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2858 of 2007.
c
D
E
From the Judgment and Order dated 23.09.2004 of the
Division Bench of the High Court of Judicature at Calcutta in
F
CAN No. 3863 of 2004.
WITH
Civil Appeal No. 2859 of 2007.
Siddharth Bhatnagar, Anurag Singh (For Mis. Legal G
Options), Advs., for the Appellant.
Anip Sachthey, Ms. Shagun Matta, Rana Mukherjee, Ms.
Kasturika Kaumudi, Shekhar Kumar, Advs. for the
Respondents.
H
804
SUPREME COURT REPORTS
[2014] 13 S.C.R.
A
The Judgments of the Court were delivered by
T. S. THAKUR, J. 1. These appeals arise out of an order
dated 23'd September, 2004 passed by a Division Bench of
the High Court of Calcutta whereby CANs No.3863/2004 and
B 3861 /20Q4 filed by the respondent-State of West Bengal and
others have been allowed, order dated 18th December, 2003
passed by a Single Bench of the High Court set aside and
Writ Petitions No.16256 and 16255 of 2003 filecj by the
appellants herein dismissed.
C
2. The appellants, it appears, were appointed as
teachers on temporary basis in what is known as Khalsa Girls
High School, Puddopukur Road, Bhowanipore, Calcutta. Their
appointment did not, however, meet the approval of the District
lnsp_ector of Schools, Calcutta, according to whom any such
D appointment could be made only on the recommendations of
the School Service Commission established under the Rules
for Management of Recognised Non-Government Institutions
(Aided and Unaided), 1969 (the Rules) (hereinafter referred
to as "the Rules").
E
3. Aggrieved by the order passed by the District
Inspector, the appellants approached the High Court of Calcutta
in Writ Petitions No.16256 and 16255 of 2003 which were
allowed by a learned Single Judge of the High Court by his
F order dated 29th January, 2004 holding that the institution in
which the appellants were appoint~d being a linguistic minority
institution was entitled to select and appoint its teachers. The
Single Bench accordingly directed the respondents in the writ
petitions to approve the appointment of the appellants as whole
G time teachers with effect from 28th July, 1999 and release the
arrears of salary and other service benefits in their favour with
effect from the said date.
4. Aggrieved by the Judgment and Order of the learned
H Single Judge, the State of West Bengal, Director of School
CHAN DANA DAS v. STATE OF WEST BENGAL
805
[T. S. THAKUR, J.]
Education and District Inspector of Schools preferred CAN
A
Nos.3861 of 2004 and 3863 of 2004 against the order passed
by the Single Bench which appeals were allowed and disposed
of by a Division Bench of that Court by a common order dated
23rd September, 2004. The High Court held that since the
Institution in which the appellants were appointed was a
B
recognised aided Institution, the Management of the Institution.
was bound to follow the mandate of Rule 28 of the Rules
aforementioned which permitted appointments against a
permanent post only if the candidate was recommended for
any such appointment by the School Service Commission. The C
Division Bench further held that the appellants having been
appointed beyond the sanctioned staff strength at the relevant
point of time and de hors the rules could not claim any approval
in their favour. The Court noted that directions issued by the D
Director of School Education, Government of West Bengal did
not permit any appointment without the prior permission of the
Director. No such permission had been, in the case at hand,
obtained from the Director. More importantly, the Division
Bench held that since the Institution had not made any claim to
E
its being a Minority Institution it was not open to the employeeswrit petitioners to claim any such status on its behalf. The
Division Bench further took the view that once a minority
community applies for a Special Constitution under Sub-Rule
Ill of Rule 8 of the said Rules it represents to the State
F
Government that it was not claiming the status of a minority
institution. The Single bench had, therefore, fallen in error in
holding that the Institution where the appellants worked was a
minority Institution or that the appointment made by such an
Institution would not be regulated by Rule 28 of the Rules G
mentioned above. The present appeals, as noticed above,
call in question the correctness of the view taken by the Division
bench of the High Court.
H
806
SUPREME COURT REPORTS
[2014] 13 S.C.R.
A
5.The short question that falls for determination is whether
Khalsa Girls High School, Puddopukur Road, Calcutta is a
Minority Institution, if so, whether the Institution's right to select
and appoint teachers is in any way affected by the provisions
of the Rules of Management of Recognised Non-Government
B Institutions (Aided and Unaided), 1969 framed under the
provisions of the West Bengal Board of Secondary Education
Act, 1963.
6. The respondent-State contends that respondent No.4C Institution has not been recognised as a Minority Institution nor
was the minority status claimed by the Institution when it applied
for grant of a Special Constitution under Rule 33 of the Rules
mentioned above. In the absence of a proper recognition of
the minority status of the Institution, it is governed by the rules
o including Rule 28 which regulates the appointment of teachers
in the Institution. The appointment of the appellants in the
present appeals being de hors the said procedure was not
entitled to any approval or regularisation by the authorities
concerned, argues the State.
E
7. The Institution's case, on the other hand, is that the
same was and continues to be a linguistic minority institution
from its inception. The affidavit filed on behalf of the Institution
traces the history behind the establishment of the institution
F for the benefit of Punjabi speaking Sikhs settled in Calcutta
and other parts of West Bengal. The affidavit states that on
19th April, 1976 a detailed Memorandum was sent by institution
to the Secretary, West Bengal, Board of Secondary Education
asking for approval of the Special Constitution for the school
G in terms of Rule 33 of the Rules mentioned above. That prayer
was according to the Institution made only because the school
was a Minority Educational Institution. The affidavit also relies
upon recognition of the minority status of the school by West
Bengal Minority Commission in terms of its order dated 61h
H
CHAN DANA DAS v. STATE OF WEST BENGAL
807
[T. S. THAKUR, J.]
October, 1989. The affidavit states that minority status of the A
Institution continues despite the grant sanctioned by the State
which cannot carry conditions that would have the effect of
defeating or diluting the right of minority to establish and
administer its own Institutions. It was also contended that Rule
33 of the Rules reserves in favour of the State Government the B
power to frame further rules for certain Institutions to which the
provisions of Articles 26 and 30 of the Constitution apply. No
such Rules having been framed a minority can establish and
run its Institution in accordance with a Special Constitution that
may be sanctioned in its favour. Rule 28 of the Rules relating C
to appointment of teachers in minority Institutions, therefore,
does not apply in the present case.
8. The appellants largely depend upon the fact that the
Institution is a minority Institution entitled to appoint its own D
teachers de hors the procedure that is applicable to other
institutes governed by the Rules. The historical backdrop in
which the respondent-school came to be established is not
disputed before us nor is it disputed that Punjabi speaking
Sikh community is a linguistic minority not only in the State of E
West Bengal but in the entire country. So long as these two
essential aspects are beyond the pale of any controversy, we
see no real reason for holding that an Institution established in
the backdrop set out in the counter affidavit by a community
that is admittedly a religious and linguistic minority both
F
nationally and in the State of West Bengal should be denied
the status of being a minority Institution~ The State's version
that the institution had never claimed the minority status is not
borne out from the record. On the contrary a representation
G
dated 191h April, 1976 filed by the Institution before the
Secretary, West Bengal Board of Secondary Education
specifically prayed for recognition of its minority status. The
representation sets out the circumstances in which the
institution was established by the Sikh Community for the
H
808
SUPREME COURT REPORTS
[2014] 13S.C.R.
A
benefit of students of that community with the support of the
Board of Management of Bara Sikh Sangat, Sri Guru Singh
Sabha and Gurdwara Sant Rutia.
In conclusion, the
representation prayed for the following relief:
B
c
"In the circumstances stated above it is humbly
requested that under Rule 33 of the Rules framed and
approved by the Government of West Bengal for the
administrati9n of aided recognised institutions our
Institution may be declared as a minority community
Institution and a special constitution for the same may
kindly be approved"'° the draft of which will be submitted
soon."
9. In response to the representation the Institution
received from the Secretary of the Board a communication
D dated 3rd October, 1985 stating that the permission for a
special constitution granted in terms of Board's letter dated
7th June, 1962 will continue until further orders and asking the
institution to submit an election programme for completion of
re-constitution of the Management Committee within a period
E of six months. The Special Constitution referred to in the
representation and the order passed by the Secretary was
obviously referable to Rule 8 of the Rules mentioned above.
Rule 8(3) which deal with the power of the Executive
F Committee of the Board to approve a Special Constitution may
at this stage be extracted :
"8(3) Notwithstanding anything contained in these rules,
the Executive Committee shall have the power to
approve, on the application of any Institution or class
G
of Institutions, of the special constitution of a Committee
in favour of such Institution or class of Institutions and
in approving the special constitution of a Committee,
the Executive Committee shall pay due regard to the
recommendations of the Director, if any. While granting
H
CHANDANA DAS v. STATE OF WEST BENGAL
809
[T. S. THAKUR, J.]
special constitution in favour of an Institution or a class
A
of Institution, the Executive Committee shall ensure that
representation of the members of the teaching and the
non-teaching staff, guardians and the member
nominated by the Director or an officer authorised by
l1im in this behalf, is made according to clause (iii),
B
cfause (v) and clause (vi) of Rule 6:
Provided that if the Executive Committee is of the
opinion that a school enjoying special constitution has
not been functioning properly, the Executive Committee c
. may, after paying due regard to the recommendations
of the Director, if any, amend or withdraw such special
constitution of a Committee and in that event, the
Executive Committee may, by order, appoint an
Administrator or an Ad-hoc Committee, as the case may o
be, to exercise the powers and perform the functions of
the Committee for such period as may be specified in
the order."
. 10. A simple reading of the above would show that a
Special Constitution is not envisaged for any particular class
E
of institutes. Such Special Constitution can be approved on
the application of any Institution or class of institutions. It is
immaterial whether the institution is a minority institution or
otherwise. The argument that approval of a Special Constitution
F
is by itself indicative of the institution giving up its claim of being
a minority institution has not appealed to us. The scheme of
the Rules in particular Rule 8(3) (supra) does not suggest either
an implied recognition of an institution as a minority Institution
or the surrender of any such claim just because a Special
G
Constitution has been approved for it by the Executive
Committee of the Board. This is made clear by Rule 33 of the
Rules which reserves in favour of the State Government the
power to frame rules for institutes governed by the provisions
of Articles 26 and 30 of the Constitution of India. Rule 33 reads:
H
810
SUPREME COURT REPORTS
[2014] 13S.C.R.
A
"33. Power of the State Government to frame further
rules for certain Institutions -
B
Nothing in these rules shall affect the power of the State
Government to frame, on the application of any
Institution or class of Institution to which the provisions
of Article 26 or Article 30 of the Constitution of India
may apply, further or other rules for the composition,
powers, functions of the Managing Committee or
Committees of such Institution or class of Institutions."
C
11. The above clearly shows that the State Government
is competent to frame rules for minority Institutes governed by
Articles 26 and 30 of the Constitution on the application of any
such Institute or class of Institutes. Such rules when framed
regulate composition, powers, functions of the Managing
D Committee or Committees of such institution or class of
Institutions. The State Government has not admittedly exercised
the rule making powers reserved in its favour. It follows that
once an institute is recognised as a minority institution, its
minority status would entitle the managing committee of the
E institution to make appointment of teachers' against vacancies
within its sanctioned strength. The power to make such
appointments is enjoyed by the Institutes by reason of the
constitutional protection which such institutions enjoy. The legal
F
position on the subject is fairly well settled by a long line of
decisions of this Court. We may refer to only some of those
decisions at this stage. But before we refer to the decisions
on the subject, we may as well deal with the argument, that
grant of a special constitution to a minority institution will be a
G contradiction in terms, because by granting a special
constitution under Rule 8(3), the Executive Committee acquires
the power in terms of the proviso under the said proviso to
appoint an administrator or an ad hoc committee, which will
have the effect of abridging the constitutionally guaranteed
H
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811
[T. S. THAKUR, J.]
rights of the minority to administer the institution. That argument A
is fallacious for reasons more than one. Firstly, because under
the proviso the Executive Committee may amend or withdraw
the special constitution if it is of t_he opinion that the institution
has not been functioning properly. That power when exercised
may no doubt deny to the institution the advantage, if any,
B
enjoyed by it under such a constitution; but the minority status
would remain unaffected by any such amendment or
withdrawal. Secondly, because the power to appoint an
administrator or an ad hoc committee may or may not be
exercised even when the special constitution is either C
withdrawn or amended. The former does not follow as an
inexorable consequence of the latter. Thirdly, because
exercise of the power to appoint an administrator for a limited
period, is no infraction of the right of the minority to administer 0
the institution as the right to administer guaranteed under the
constitution does not include the right to maladminister to
borrow the expression used by Khanna J. in TheAhmedabad
St. Xavier's College Society and Anr. v. State of Gujarat
andAnr. (1974) 1SCC717where His Lordship observed:
·"90. We may now deal with the scope and ambit of the
right guaranteed by clause (1) of Article 30. The clause
confers a right on all minorities, whether they are based
E
on religion or language, to establish and administer
educational instructions of their choice. The right con
F
.ferred by the clause is in absolute terms and is not
subject to restrictions, as in the case of rights conferred
by Article 19 of the Constitution. The right of the
minorities to administer educational institutions does
not, however, prevent the making of reasonable G
regulations in respect of those institutions. The
regulations have necessarily to be made in the interest
of the institution as a minority educational institution.
They have to be so designed as to make it an effective H
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vehicle for imparting education. The right to administer
educational institutions can plainlv not include the right
to ma/administer. Regulations can be made to prevent
the housing of an educational institution in unhealthy
surroundings as also to prevent the setting up or
continuation of an educational institution without
qualified teachers. The State can prescribe regulations
to ensure the excellence of the institution. Prescription
of standards for educational institutions does not
militate against the right of the minority to administer
the institutions. Regulations made in the true interests
of efficiency of instruction, discipline, health, sanitation,
morality, public order and the like may undoubtedly be
imposed. Such regulations are not restrictions on the
substance of the right which is guaranteed: they secure
the proper functioning of the institution, in matters
educational [see observations of Shah, J. in Rev.
Sidhajbhai Sabhai p. 850]. Further as obsenied by
Hidyatullah, C.J. in the case of Very Rev. Mother
Provincial the standards concern the body politic and
are dictated by considerations of the advancement of
the country and its people. Therefore, if universities
establish syllabi for examinations they must be
followed, subject, however, to special subjects which the
institutions may seek to teach, and to a certain extent
the State may also regulate the conditions of
employment of teachers and the health and hygiene of
students. Such regulations do not bear directly upon
management as such although they may indirectly
affect it. Yet the right of the State to regulate education,
educational standards and allied matters cannot be
denied. The minority institutions cannot be allowed to
fall below the standards of excellence expected of
educational institutions, or under the guise of exclusive
CHAN DANA DAS v. STATE OF WEST BENGAL
813
[T. S. THAKUR, J.]
right of management, to decline to follow the general A
pattern. While the management must be left to them,
they may be compelled to keep in step with others."
(emphasis supplied)
12. In St. Xavier's case (supra) a Constitution Bench of B
this Court was examining the scope and ambit of the right of
the minority whether based on religion or language to establish
and administer educational institutions under clause (1) of
Article 30 of the Constitution. The.question arose in the context
of certain provisions in the Gujarat University Act, 1949 being C
applied to linguistic or religious minorities. This Court by a
majority decision declared that the right of the minorities to
administer educational institutions does not prevent the making
of reasonable regulations in respect of those institutions. Such
regulatioris can be made to prevent housing of an educational D
institution in unhealthy surroundings or to prevent the setting
up or continuation of an educational institution without qualified
teachers. Prescription of standards for educational institutions
was not violative of the right of the minority to administer the
institutions declared this Court. Regulations made in the
E
interests of efficiency of instructions, discipline, health,
sanitation, morality public order and the like can be made and
enforced against minority institutions also. Such regulations
do not restrict the substance of the right which is guaranteed
F
but only secure a proper functioning of the institution in matt<:irs
of education. On a comprehensive review of the earlier
decisions of this Court, Khanna, J. in his concurring judgment
recognised the right of all minority institutions to appoint
qualified teachers of its choice and also to exercise discipHnary G
control over such teachers and other members of the staff of
the institution. The following passage is, in this regard, apposite:
"103. Another conclusion which follows from what has
been discussed above is that a law which interferes with
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a minority's choice of qualified teachers or its
disciplinary control over teachers and other members
of the staff of the institution is void as being violative of
Article 30(1). It is, of course, permissible for the State
and its educational authorities to prescribe the
qualifications. of teachers, but once the teachers
possessing the requisite qualifications are selected by
the minorities for their educational institutions, the State
would have no right to veto the selection of those
teachers. The selection and appointment of teachers
for an educational institution is one of the essential
ingredients of the right to manage an educational
institution and the minorities can plainly be not denied
such right of selection and appointment without
infringing Article 30(1) .... "
13. That the right to administer does not include the right
to maladminister a minority institution was reiterated by another
Constitution Bench of this Court in St. Stephen's College v.
University of Delhi (1992) 1 SCC 558 where this Court said:
"The need for a detailed study on this aspect is indeed
not necessary. The right to minorities whether religious
or linguistic, to administer educational institutions and
the power of the State to regulate academic matters and
management is now fairly well settled. The right to
administer does not include the right to maladminister.
The State being the controlling authority has right and
duty to regulate all academic matters. Regulations
which will serve the interests of the students and
·teachers, arid to preserve the uniformity in standards
of education among the affiliated institutions could be
made. The minority institutions can not claim immunity
against such general pattern and standard or against
general lavys such as laws relating to law and order,
CHAN DANA DAS v. STATE OF WEST BENGAL
815
[T. S.THAKUR, J.]
health, hygiene, labour relations, social welfare A
legislations, contracts, torts, etc. which are applicable
to all communities. So long as the basic right of
minorities to manage educational institution is not taken
away, the State is competent to make regulatory
legislation. Regulations, however, shall not have the
B
effect of depriving the right of minorities to educate their
children in their own institution. That is a privilege which
is implied in the light conferred by Article 3Q(1 ). "
14. In T.M.A Pai Foundation v. State of Karnataka c
(2002) 8 SCC 481, this Court had another occasion to examine
the right of the linguistic and minority institutions to establish
and administer their institutions. In the context of grant of aid
to such institutions this Court held that grant of aid cannot be
made subject to conditions that may impinge upon the right of o
the linguistic minority institution to establish and administer its
institution. The co~ditions t~at could normally be permitted to
be imposed for minority educational institution receiving grant
must be related to the proper utilisation of the grant and
fulfilment of the objectives of the grant. This Court said:
E
"143. This
means
that
the
right
under
Article 30(1) implies that any grant that is given by the
State to the minority institution cannot have such
conditions attached to it, which will in any way dilute or · F
abridge the rights of the minority institution to establish
and administer that institution. The conditions that can
normally be permitted to be imposed, on the
educational institutions receiving the grant, must be
related to the proper utilization of the grant and fulfilment G
of the objectives of the grant. Any such secular
conditions so laid, such as a proper audit with regard to
the utilization of the funds and the manner in which the
funds are to be utilized, will be applicable and would
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not dilute the minority status of the educational
institutions. Such conditions would be valid if they are
also imposed on other educational institutions receiving
the grant.
144. It cannot be argued that no conditions can be
imposed while giving aid to a minority institution.
Whether it is an institution run by the majority or the
minority, all conditions that have relevance to the proper
utilization of the grant-in-aid by an educational
institution can be imposed. All that Article 30(2) states
is that on the ground that an institution is under the
management of a minority, whether based on religion
or language, grant of aid to that educational institution
cannot be discriminated against, if other educational
institutions are entitled to receive aid. The conditions
for grant or non-grant of aid to educational institutions
have to be uniformly applied, whether it is a majorityrun institution or a minority-run institution."
15. More recently this Court had another occasion to
E examine the rights guaranteed in favour of linguistic and
religious minority and the provisions in Sindhi Education
Society and Anr. v. Chief Secretary, Government of NCT
of Delhi and Ors. (2010) 8 SCC 49. The question there was
F whether regulation 64(1 )(2) of the Delhi School Education
Rules, 1973 and orders and instructions issued therein would,
if made applicable to an aided minority educational institution,
violate the fundamental right guaranteed under Article 30(1) of
the Constitution. This Court held that regulatory powers vested
G in the State to frame regulations for the objective of ensuring
better organisation and development of school education and
matters incidental thereto must operate within its limitation. In
cases where the minority status was duly accepted and
declared by the judgment of the High Court, it was not
H
CHAN DANA DAS v. STATE OF WEST BENGAL
817
[T. S. THAKUR, J.]
permissible for the Government to stop grant-in-aid on the A
ground that the institution had failed to comply with the
conditions or restrictions otherwise impermissible in law
especially in the matter of appointment of teachers of such
minority institution where the institution had satisfied the laid
down criteria and/or eligibility conditions for such B
appointments. This Court held that the right to appoint those
who possess the eligibility and qualification prescribed cannot
be curtailed. The Court observed:
"112. Every linguistic minority may have its own social, c
economic and cultural limitations. It has a constitutional
right to conserve such culture and language. Thus, it
would have a right to choose teachers, who possess
the eligibility and qualifications, as provided, without
really being impressed by the fact of their religion and o
community.