# BHOLANATH MUKHERJEE & ORS v. R.K. MISSION V. CENTENARY COLLEGE & ORS

- **Citation:** [2011] 5 S.C.R. 416
- **Court:** Supreme Court of India
- **Decided:** 2011-04-18
- **Case number:** Civil Appeal No. 2457 of 2006
- **Bench:** B. Sudershan Reddy, Surinder Singh Nijjar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bholanath-mukherjee-ors-v-r-k-mission-v-centenary-college-ors-27641
- **Pages:** 32

## Headnote

Service law:
Appointment - Appointment of respondent No. 3, a monk
as Principal of Missionary College -
Challenged by
appellants-teachers in the College - On the ground that
respondent no.3 was junior to them and did not possess the
0
requisite qualifications - Writ Petition allowed by the Single
Judge of the High Court - However, dismissed by the Division
Bench of the High Court - On appeal held: Litigation in the
instant case does not survive as the appellants have retired
- Even if the writ petition is allowed and the appointment of
E respondent No. 3 is declared null and void, none of the
appellants could be appointed on the post of Principal - By
the retirement of all the appellants the issues raised have
been rendered academic - More so, no interim relief was
granted by the High Court or Supreme Court restraining
respondent No. 3 from performing the functions of a Principal
F - By now respondent No. 3 has acquired the requisite
experience for the post of principal - Instant dispute is a pure
and simple service dispute -
Merely because the writ
petitioners are senior most teachers in the same institution,
would not necessarily give rise to the presumption, that they
G had filed the writ petition in public interest - Also, the
submission that the writ petition can be treated as a writ in the
nature of a quo warranto cannot be accepted - Appellants did
not claim a writ of quo warranto either before the Single Judge
or before the Division Bench of the High Court - The said
H
416
BHOLANATH MUKHERJEE v. R.K. MISSION V.
417
CENTENARY COLLEGE
submission was made as a weapon of last resort -
A
Constitution of India, 1950 - Article 226.
Appellants-teachers in respondent No. 1 College,
filed a writ petition challenging the appointment of
respondent no. 3, a monk at RK Mission as principal of
8
respondent No. 1 College on the ground that he was.
junior to the appellants and did not possess the requisite
qualifications for the post of principal as laid down in the
Government Order. The Single Judge of the High Court
allowed the writ petition holding that the appointment of C
the Principal was not made under the provisions of the
West Bengal Act of 1975, West Bengal Act of 1978 and
the Calcutta University First Statute, 1979. The Governing
Body of the College was directed to take steps to fill the
post either temporarily or permanently in accordance with
laws in force. Aggrieved, respondent No. 1 College filed
D
an appeal before the Division Bench of the High Court
and the same was allowed. Therefore, the appellants filed
the instant.appeal.
Dismissing the appeal, the Court
HELD: 1.1 There is much substance in the
submissions that at this stage, litigation in the instant
case does not survive as the appellants have retired. Even
E
if the writ petition is allowed and the appointment of
F
respondent No.3 is declared null and void, none of the
appellants could be appointed on the post of Principal.
A perusal of the averments made in the writ petition
before the High Court would show that the gravamen of
the grievances of the writ petitioners/appellants was that G
they were all senior to respondent No. 3; that he had only
six years of teaching experience, while G.O. No. 149Edn(CP) dated 22nd Fe.bruary, 1994 prescribes a
minimum teaching experience of sixteen years with
administrative experience; that on the one hand,
H
418
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A respondent No.3 did not possess the necessary
experience and was appointed as the Principal, and on
the other hand, the applications of the petitioner Nos. 1,
9 and 12 for the post of Principal made through
appropriate channel were not at all considered at any
B stage by the appropriate authority, though they were
more qualified and senior to respondent No. 3; that the
petitioners are suffering irreparable loss in the form of
deprivation from being promoted as a Teacher-in-Charge
and compelled to serve under a junior in service and
C possessing lesser qualifications; that respond

## Text

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A
B
c
[2011] 5 S.C.R. 416
BHOLANATH MUKHERJEE & ORS.
v.
R.K. MISSION V. CENTENARY COLLEGE & ORS.
(Civil Appeal No. 2457 of 2006)
APRIL 18, 2011
[B. SUDERSHAN REDDY AND SURINDER SINGH
NIJJAR, JJ.]
Service law:
Appointment - Appointment of respondent No. 3, a monk
as Principal of Missionary College -
Challenged by
appellants-teachers in the College - On the ground that
respondent no.3 was junior to them and did not possess the
0
requisite qualifications - Writ Petition allowed by the Single
Judge of the High Court - However, dismissed by the Division
Bench of the High Court - On appeal held: Litigation in the
instant case does not survive as the appellants have retired
- Even if the writ petition is allowed and the appointment of
E respondent No. 3 is declared null and void, none of the
appellants could be appointed on the post of Principal - By
the retirement of all the appellants the issues raised have
been rendered academic - More so, no interim relief was
granted by the High Court or Supreme Court restraining
respondent No. 3 from performing the functions of a Principal
F - By now respondent No. 3 has acquired the requisite
experience for the post of principal - Instant dispute is a pure
and simple service dispute -
Merely because the writ
petitioners are senior most teachers in the same institution,
would not necessarily give rise to the presumption, that they
G had filed the writ petition in public interest - Also, the
submission that the writ petition can be treated as a writ in the
nature of a quo warranto cannot be accepted - Appellants did
not claim a writ of quo warranto either before the Single Judge
or before the Division Bench of the High Court - The said
H
416
BHOLANATH MUKHERJEE v. R.K. MISSION V.
417
CENTENARY COLLEGE
submission was made as a weapon of last resort -
A
Constitution of India, 1950 - Article 226.
Appellants-teachers in respondent No. 1 College,
filed a writ petition challenging the appointment of
respondent no. 3, a monk at RK Mission as principal of
8
respondent No. 1 College on the ground that he was.
junior to the appellants and did not possess the requisite
qualifications for the post of principal as laid down in the
Government Order. The Single Judge of the High Court
allowed the writ petition holding that the appointment of C
the Principal was not made under the provisions of the
West Bengal Act of 1975, West Bengal Act of 1978 and
the Calcutta University First Statute, 1979. The Governing
Body of the College was directed to take steps to fill the
post either temporarily or permanently in accordance with
laws in force. Aggrieved, respondent No. 1 College filed
D
an appeal before the Division Bench of the High Court
and the same was allowed. Therefore, the appellants filed
the instant.appeal.
Dismissing the appeal, the Court
HELD: 1.1 There is much substance in the
submissions that at this stage, litigation in the instant
case does not survive as the appellants have retired. Even
E
if the writ petition is allowed and the appointment of
F
respondent No.3 is declared null and void, none of the
appellants could be appointed on the post of Principal.
A perusal of the averments made in the writ petition
before the High Court would show that the gravamen of
the grievances of the writ petitioners/appellants was that G
they were all senior to respondent No. 3; that he had only
six years of teaching experience, while G.O. No. 149Edn(CP) dated 22nd Fe.bruary, 1994 prescribes a
minimum teaching experience of sixteen years with
administrative experience; that on the one hand,
H
418
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A respondent No.3 did not possess the necessary
experience and was appointed as the Principal, and on
the other hand, the applications of the petitioner Nos. 1,
9 and 12 for the post of Principal made through
appropriate channel were not at all considered at any
B stage by the appropriate authority, though they were
more qualified and senior to respondent No. 3; that the
petitioners are suffering irreparable loss in the form of
deprivation from being promoted as a Teacher-in-Charge
and compelled to serve under a junior in service and
C possessing lesser qualifications; that respondent No. 3
is junior to all the petitioners; that 'BK' was the then
petitioner No. 1 and the then senior most Teacher who
had put in more than three decades of lawful and
approved service to the Institution, therefore, he was
D lawful claimant to the post of Teacher-in-Charge of the
college. Therefore, it was a matter of great humiliation and
injustice to all the petitioners to be forced to serve under
an illegally appointed person, who is junior to all of them.
It becomes evident that the grievances of the writ
E petitioners were that they have been compelled to work
under a person, who was junior to them. The petitioners
having retired from service, no relief could possibly be
granted to them, even if the appointment of respondent
No.3 is held to be illegal or void. In such circumstances,
F it would be an exercise in futility to examine the merits
of the controversy raised in the- appeal. By the retirement
of all the appellants the issues raised have been rendered
academic. [Paras 18) [437-E-G; 438-A-H; 439-A-B]
G
M.L. Binjo/kar vs. State of M.P. (2005) 6 SCC 224; State
of Manipur and Ors. vs. Chandam Manihar Singh (1999) 7
SCC 503; Sumedico Corporation and Anr. vs. Regional
Provident Fund Commr. (1998) 8 SCC 381 - relied on.
H
1.2 Throughout the proceedings before the High
1
I
BHOLANATH MUKHERJEE v. R.K. MISSION V.
419
CENTENARY COLLEGE
Court as well as before this Court, no interim rettetwas- -A- -
granted by restraining respondent No.3 from performing
the functions of a Principal. He has continued to function
on the said basis since his appointment on 14th May,
1999 as Acting Principal and then from 23rd March,, 2001
onward as Principal. Even according to the appellants,
B
at the time of his appointment, respondent No.3 had
possessed the experience of only six years. Therefore,
by now, he would have more than fifteen years of
required experience for the post of Principal. Therefore,
the ground that the respondent No.3 was not qualified as
C
he did not possess the necessary experience would also
no longer be available to the appellants. [Para 19] [441F-H]
Ram Sarup vs. State of Haryana and Ors. (1979) 1 SCC
D
168 - relied on.
1.3 The submission that the appeal would not be
rendered infructuous by the mere retirement of the
appellants; that all the appellants have been engaged in
the field of education throughout their lives and are
deeply interested in ensuring that tt:ie standards of
education are maintained and that the appointment for the
post of Principal should be made in accordance with the
statutory provisions, therefore, the appellants would have
E
F
the locus standi to continue the proceedings, cannot be
accepted. The entire pleadings in the writ petition are
founded on the personal grievance of the writ petitioners/
appellants. The writ petitioners have not come before this
Court as educationists. Merely because they are senior G
most teachers in the same institution, would not
necessarily give rise to the presumption, that they had
filed the writ petition in public interest A pure and simple
service dispute is sought to be camouflaged as a p·ublic
interest litigation. Therefore, the said submission cannot H
420
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A be accepted as it is tantamount to treating the writ
petition as a public interest litigation. The entire grievance
of the writ petitioners/appellants was personal. They were
all aggrieved and humiliated for being compelled to serve
under a Principal junior to them in service. Therefore, it
B could not be treated as a public interest litigation. [Paras
21, 22 and 23) [443-C-G; 445-G-H; 446-A-B]
Gurpa/ Singh vs. State of Punjab and Ors. (2005) 5 SCC
136; Seshadri vs. S.Mangati Gopal Reddy and Ors. 2011 (4)
C SCALE 41; Dr. B. Singh vs. Union of India and Ors. (2004)
4 sec 363 - referred to.
1.4 The submission that the writ petition can be
treated as a writ in the nature of a quo warranto cannot
be accepted. It appears that the appellants had not
D claimed a writ of quo warranto either before the Single
Judge or before the Division Bench of the High Court.
Even in this Court, it appears that the said submission
was made as a weapon of last resort. During the
pendency of the proceedings, respondent No. 3 has
E acquired the experience of sixteen years. The
requirement under Rules was of fifteen years experience,
it would, therefore, not be appropriate to go into the
question as to whether a writ of quo warranto would lie
in the instant case or not. It would be an exercise in
F futility. The issue has become purely academic [Para 24)
(446-G-H; 447-A-B]
Bramchari Sidheswar Shai and Ors. vs. State of West
Bengal and Ors. (1995) 4 SCC 646; Dr. Duryodhan Sahu and
G Ors. vs. Jitendra Kumar Mishra and Ors. (1998) 7 SCC 273
- referred to.
Case Law Reference:
(1995) 4 sec 646
Referred to
Para 5
H
BHOLANATH MUKHERJEE v. R.K. MISSION V.
421
CENTENARY COLLEGE
(2005) 6 sec 224
Relied on
Para 18
A
(1979) 1 sec 168
Relied on
Para 20
(1998) 1 sec 213
Referred to
Para 17
(2005) 5 sec 136
Relied on
Para 22
B
(1998) 8 sec 381
Relied on
Para 18
(1999) 1 sec 503
Relied on
Para 18
2011 (4) SCALE 41
Relied on
Para 22
c
(2004) 4 sec 363
Relied on
Para 23
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2457 of 2006.
From the Judgment and Order 21.09.2004 of the Division
D
Bench of the High Court of Calcutta in M.A.T. 476 of 2004.
Prashant Bhushan, Rohit Kumar Singh and Bhanoo Sood
for the Appellants.
L.N. Rao, Dipankar P. Gupta and Bhaskar P. Gupta, D.N.
E
Ray, Lokesh K. Choudhary, Sumita Ray, Kishan Datta and Tara
Chandra Sharma for the Respondents.
The Judgment of the Court was delivered by
SURINDER SINGH NIJJAR, J. 1. This appeal is directed
against the final judgment and order of the Calcutta High Court
dated 21st September, 2004 in M.A.T. No. 476 of 2004 arising
out of Writ Petition No. 29805(W) of 1997 vide which the order
F
of the learned Single Judge of the High Court was set aside.
G
2. We may notice the essential facts, which would have a
bearing on the determination of the issues raised in this
appeal. Admittedly, there has been a controversy with regard
to the special status enjoyed by the Ramakrishna Mission
H
422
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A Vivekananda Centenary College at Rahara (hereinafter
referred to as 'respondent No.1 ') for a long period of time. The
College was initially established in the year 1961 with a grant
of Rs.2 lakhs given by the Government of West Bengal in the
Education Department. The additional cost for establishing the
B College had been borne. by the State Government.
Subsequently on 25th April, 2002, the Government of West
Bengal, in order to advance collegiate education and with a
view to reduce the overcrowding in good colleges in Calcutta
decided to set up a three year degree college at Rahara. Such
c college was to be set up on the recommendations of the
University Grants Commission (for short 'UGC'). The college
was duly established and granted affiliation to Calcutta
University on 13th May, 1963. It is a fully aided college; being
sponsored and financed by the State Government.
D
3. The controversy herein relates to the appointment of the
Principal of the College. The post of Principal is included in the
definition of Teacher, as contained in Section 2 Clause 9 of the
aforesaid Act.· The aforesaid Clause defines the term Teacher
to include a Professor, Assistant Professor, Lecturer, Tutor,
E Demonstrator, Physical Instructor or any other person holding
a teaching post of a college recognised by the University to
which such college is affiliated and appointed as such by such
college and includes its Principal and Vice-Principal. Section
3 of the Act provides "appointment to the post of a Teacher shall
F be made by the Governing Body on the recommendations of
the University and College Service Commission to be
constituted by the State Government in the manner prescribed".
The appointment on the post of Teachers of a college is
governed by the College Service Commission established
G under the West Bengal College Service Commission Act, 1978.
H
Section 3 of the aforesaid Act is as under:-
"(1) The State Government shall, with effect from such date
as may by notification, appoint, constitute Commission by
the name of the West Bengal College Service Commission
BHOLANATH MUKHERJEE v. R.K. MISSION V.
423
CENTENARY COLLEGE [SURINDER SINGH NIJJAR, J.]
consisting· of five members of whom one shall be the
A
Chairman.
· (2) Of the members one shall be person who, not being
an educationist, occupies or has occupied in the opinion
of the State Government, a position of eminence in public
8
life or in Judicial or administrative service and the other
shall have teaching experience either as a Professor of a
University or as a Principal for a period of not less than
ten years or as a teacher, other .than Principal of a
College, for .a period of not less than fifteen years."
Section 7(1) and Proviso (ii) are as under:-
"Notwithstanding anything contained in any other law for the
time being in force or in any contract, custom or usage to
c
the contrary, it shall be the duty of the Commission to o
select persons for appointment to the post of Teachers of
a College:
Provided that-
(i) ..
(ii) For selection of a person for appointment to the post
of Principal, the Commission shall be aided by the viceChancellor of the University to which such college is
affiliated or his nominee and a nominee of the Chancellor
of such University."
4. Section 15 provides that "nothing contained in the Act
shall apply in relation to any college not receiving any aid from
E
F
the State Government or any college established and
administered by a minority, whether based on religion or G
language." The State Government issued Memo No. 752-Edn
(CS) to revise the existing pattern for the composition of the
governing bodies of the Government sponsored colleges
excepting in cases where the college has a special constitution
on the basis of Trust Deeds or where the colleges are run by
H
424
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A Missionary Societ.ies on the basis of agreement with the
respective missions. The academic qualification prescribed for
appointment on the post of Principal by the Government of West
Bengal vide a G.O. No. 149-Edn(CP) dated 22nd February,
1994.
B
5. It appears that earlier the controversy with regard to the
appointment on the post of Principal was subject matter of the
decision rendered by this Court in the case of Bramchari
Sidheswar Shai & Ors. Vs. State of WB. & Ors. 1• In deciding
the controversy raised in the aforesaid case, this Court has
C extensively traced the history with regard to the setting up of
three year degree colleges under the auspicious of
Ramakrishna Mission Boy's Home at Rahara. Therefore, it is
not necessary for us to recapitulate the entire sequence of
events in the present proceedings.
D
6. Suffice it to say that the aforesaid controversy had arisen
in the context of a challenge made in Writ Petition being
C.O.No. 12837(W) of 1980 to the appointment of Swami
Shivamayananda, who was till then Head ofRamakrishna
, E Mission, Vidya Mandir, Bellur Math, as the Principal of
Ramakrishna Mission College. The petitioners had claimed that
Shivamayananda did not have the requisite qualifications for
being appointed as the Principal and that he had not been
appointed by a duly constituted Governing Body. The prayers
F in the writ petition were for the issue of (i) a writ in the nature
of mandamus commanding the Government of West Bengal to
reconstitute the Governing Body of the Ramakrishna Mission
College according to standard pattern for Governing Bodies of
sponsored colleges as per Government Memo No. 752-Edn
G (CS)/C. S. 30-3/77 dated 18th April, 1978; (ii) a writ declaring
that the Ramakrishna Mission College is governed by West
Bengal Act of 1975 and West Bengal Act of 1978; (iii) a writ
in the nature of quo warranto restraining Swami
H 1.
(1995) 4 sec 646.
BHOLANATH MUKHERJEE v. R.K. MISSION V.
425
CENTENARY COLLEGE [SURINDER SINGH NIJJAR, J.]
Shivamayananda as Principal of Ramakrishna Mission
A
College and other incidental writs.
7. During the pendency of this writ petition, the University
of Calcutta issued three notices to the Ramakrishna Mission
to reconstitute the Governing Bodies of the Ramakrishna
B
Mission Residential College, Narendrapur, Ramakrishna
Mission Shiksha Mandir, Howrah and Ramakrishna Mission
Vidya Mandir, Howrah. The legality of these notices was
challenged by the Ramakrishna Mission by filing an Interlocutory
Application in the writ petition. The writ petition was resisted
C
by the Ramakrishna Mission on the ground that being a minority
based on religion, the institutions established by it would be
protected under Article 30(1) of the Constitution. Therefore, the
West Bengal Act of 1975 and West Bengal Act of 1978 would
not be applicable. The Ramakrishna Mission had also claimed
its right to establish and maintain institutions for religious and
D
charitable purposes and to manage its own religious affairs;
to own and acquire movable and immoveable property; and to
administer such property in accordance with the law. The
aforesaid rights were claimed under Article 26 of the
Constitution of India. The writ petition was dismissed by the
E
learned Single Judge. It was held that institutions established
by Ramakrishna Mission were protected under Article 30(1) of
the Constitution of India. It was also held that the West Bengal
Act of 1975 and West Bengal Act of 1978 would not be
applicable. It quashed the three notices issued by the Calcutta
F
University. It, however, rejected the claim of Ramakrishna
Mission under Article 26(a) of the Constitution of India. The
aforesaid judgment was carried in appeal before the Division
Bench by the writ petitioners as well as the State of West
Bengal and Calcutta University. The Division Bench heard all
G
the appeals together, and by a common judgment dismissed
all the appeals. The Division Bench upheld the conclusion of
the learned Single Judge that Ramakrishna Mission being a
minority based on religion was protected under Article 30(1)
of the Constitution of India. It further held that the Ramakrishna
H
426
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A Mission had the right to establish educational institutions as
religious denomination under Article 26(a) of the Constitution
of India. It further held that both the West Bengal Act of 1975
and West Bengal Act of 1978 would not be applicable as these
enactments did not contain any express provision indicating
B their application to educational institutions established and
maintained by the Ramakrishna Mission. It further observed that
to hold otherwise would lead to infringement of the rights
enjoyed by the Ramakrishna Mission under Article 26(a) and
26(b) of the Constitution. However, it left open the question of
c legality or otherwise of the direction contained in the notices
issued by the Calcutta University to the Ramakrishna Mission
for reconstitution of Governing Bodies of the Ramakrishna
Mission Residential College, Narendrapur, Ramakrishna
Mission Shiksha Mandir, Howrah and Ramakrishna Mission
D Vidya Mandir, Howrah.
8. The aforesaid judgment of the Division Bench was
challenged before this Court in a number of appeals, which has
been noticed above. These appeals were decided by this Court
by a common judgment dated 2nd July, 1995 in the case of
E Bramchari Sidheswar Shai (supra).
F
G
H
9. This Court formulated six points arising for consideration
in the appeals, which were as follows:-
"1. Can the citizens of India residing in the State of West
Bengal who are professing, practising or propagating the
religious doctrines and teachings of Ramakrishna and
have become his followers, claim to belong to a minority
based on Ramakrishna religion which was distinct and
different from Hindu religion and as such entitled to the
fundamental right under Article 30(1) of the Constitution of
India, of establishing and administering educational
institutions of their choice through Ramakrishna Mission
or its branches in that State ?
2. Do persons belonging to or owing allegiance to
BHOLANATH MUKHERJEE v. R.K. MISSION V.
427
CENTENARY COLLEGE [SURINDER SINGH NIJJAR, J.]
Ramakrishna Mission belong to a religious denoi:nination
A
or any section thereof as would entitle them to claim the
fundamental rights conferred on either of them under Article
26 of the Constitution of India ?
3. If persons belonging to or owing allegiance to
B
Ramakrishna Mission. is a religious denomination or a
section thereof, have they the fundamen.tal right of
establishing and maintaining institutions for a charitable
purpose under Article 26(a) of the Constitution of India?
4. If Ramakrishna Mission as c;i religious denomination or
C
a section thereof .establishes and maintains educational
institutions, can such institutions be regarded as
institutions established and maintained for charitable
purpose within the meaning of Article 26(a) of the
Constitution of India ?
D
5. Is Ramakrishna Mission College at Rahara established
and maintained by Ramakrishna Mission and if so, will the
constitution of its governing body by the Government of
West Bengal amount to infringement of Ramakrishna
E
Mission's fundarnentc;il right to establish and maintain an
educational institution under Article 26(a) of the
Constitution of India?
6. Can the court direct the West Bengal Government
because of W.B. Act 1975 and W.B. Act 1978, to
F
constitute governing body on a "standard pattern" of
sponsored college envisaged under its Memo dated 184-1978 in respect of Ramakrishna Mission College when
that memo itself says that colleges established and
maintained by Missions on the basis of agreements cannot
G
be treated as sponsored colleges for the purpose of
constituting governing bodies for them on a "standard
pattern"?"
H
428
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A
10. Upon consideration of the entire matter, the conclusions
recorded were as under :-
Point 1
B
(i)
For the foregoing reasons, we hold that the citizens
of India residing in the State of West Bengal, who
are professing, practising or propagating the
religious doctrines and teachings of Ramakrishna
and have become his followers, cannot claim to
belong to a minority based on Ramakrishna religion
c
which was distinct and different from Hindu religion
and as such are not entitled to the fundamental right
under Article 30(1) of the Constitution of India, of
establishing and administering educational
institutions of their choice through Ramakrishna
D
Mission or its branches in that State and answer
Point 1 accordingly, in the negative.
Point 2
(ii)
For the said reasons, we hold that persons
E
belonging to or owing their allegiance to
Ramakrishna Mission or Ramakrishna Math belong
to a religious denomination within Hindu religion or
a section thereof as would entitle them to claim the
fundamental rights conferred on either of them under
F
Article 26 of the Constitution of India and answer
Point 2, accordingly, in the affirmative.
Point 3
G
(iii)
Since we have held while dealing with Point 2 which
arose for our consideration that the persons
belonging to or owing allegiance to Ramakrishna
Mission or Ramakrishna Math as followers of
Ramakrishna, form a religious denomination in
Hindu religion, as a necessary concomitant thereof,
H
BHOLANATH MUKHERJEE v. R.K. MISSION V.
429
CENTENARY COLLEGE [SURINDER SINGH NIJJAR, J.]
we have to hold that they have a fundamental right
A
of establishing and maintaining institutions for a
charitable purpose under Article 26(a) of the
Constitution of India, subject, of course, to public
order, morality and health envisaged in that very
article. Point 3 is, accordingly answered, in the
B
affirmative.
(iv)
On Point Nos. 4 & 5, it was observed as follows:-
"We think that the learned Judges of the High Court
should not have decided on the general question c
whether educational institutions established and
maintained by religious denomination including
those established and maintained by Ramakrishna
Mission for general education get the protection of
Article 26(a) of the Constitution when that question
D
in a general form, was not really at issue before
them. Therefore, the views expressed on the
question shall, according to us, ought to be treated
as non est and the question is left open to be
decided in proper case, where such question really
E
arises and all the parties who might be concerned
with it are afforded adequate opportunity to have
their say in the matter."
(v)
On Point No. 6, it was observed as follows:-
F
"67. As stated above, the State Government has
excepted the Ramakrishna Mission College at
Rahra in the matter of constituting a Governing
Body on a standard pattern for the obvious reason
that constituting such a governing body for a college
G
like Ramakrishna Mission College which was all
through allowed to have a governing body
constituted by Ramakrishna Mission, which had
built the College on its land conceding to the
request made in that behalf by the State
H
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B
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(2011] 5 S.C.R.
Government itself on the initiation of the Central
Government, may not be just. Thus when
Ramakrishna Mission College had come to be
built, established and managed by the
Ramakrishna Mission, it is difficult for us to think that
the learned Judges of the Division Bench of the
High Court were not right in holding that the
Government should not be directed by issue of a
mandamus, to constitute a governing body for the
Ramakrishna Mission College on a standard
pattern taking recourse to the W.B. Act of 1975 and
the W.B. Act of 1978, although for its own reasons.
Therefore, in the peculiar facts and circumstances
in which Ramakrishna Mission College at Rahra
was established on Ramakrishna Mission's land
and allowed to be administered by the
Ramakrishna Mission through its own governing
body, we feel that interests of justice may suffer by
directing the State Government to constitute its own
governing body on a standard pattern of the usual
sponsored colleges, as prayed for by the writ
petitioners. However, the view we have expressed
in the matter shall not come in the way of the State
Government to change their earlier arrangement
with the Ramakrishna Mission in the matter of
governance of the Ramakrishna Mission College,
if on objective considerations such change
becomes necessary in the larger interests of
students, teachers and other employees of that
College and is so permitted by law.
68. In the said view we have taken in the matter of
constituting a Governing Body by the Government
of West Bengal in respect of the Ramakrishna
Mission College at Rahra, there is no need to go
into the question that there has been infringement
by the Government of Ramakrishna Mission's
BHOLANATH MUKHERJEE v. R.K. MISSION V.
431
CENTENARY COLLEGE [SURINDER SINGH NIJJAR, J.]
fundamental rights to establish and maintain
A
educational institutions under Article 26(a) of the
Constitution of India inasmuch as such a question
does not arise, in view of the answer already given
by us on Point 3 above. So also, question of
directing the West Bengal Government because of
B
the W.B. Act of 1975 and the W.B. Act of 1978, to
constitute governing body on "standard pattern" of
sponsored college envisaged under its Memo
dated 18-4-1978 in respect of Ramakrishna
Mission College, cannot arise.
c
69. Points 4 to 6 are accordingly answered."
11. After the decision in the aforesaid case, again Writ
Petition No.29805(W) of 1997 was filed in the Calcutta High
Court challenging initially the appointment of Swami
D
Shivamayananda (Respondent No.16 herein) and Swami
Divyananda (respondent No.17 herein) as Principal and
Honorary Vice-Principal respectively. It was alleged that
appointment of both the respondents had been made without
following the provisions of the West Bengal Act of 1975 and
E
West Bengal Act of 1978. However, both the persons during
the pendency of the writ petition before the High Court went on
open ended leave from their respective posts. Thereafter on
14th May, 1999, by an Office Order No.RKMVCC/21/99, the
college authorities elevated Swami Sukadevananda
F
(respondent No. 3 herein) Vice-Principal of the college to the
post of Acting Principal with immediate effect, again without
following the West Bengal Act of 1975 and West Bengal Act
of 1978. He was designated as the Principal of the College on
20th March, 2001 vide Office Order No.3/RKMVCC/21/2001.
G
The appointment of Swami Sukhadevananda, as Principal of
the College led to the amendment of the writ petition
incorporating a challenge to his appointment.
12. It is the case of the appellants, that the respondent No.
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[2011) 5 S.C.R.
A 3 was only First class M.Sc. in Biochemistry from Karnataka
University and had worked as Scientific Officer in Bhabha
Atomic Research Centre, Bombay for about four years. As far
as teaching experience in the college is concerned, he had only
six years of such experience. Thus, according to the appellants,
B he did not possess the requisite qualifications for the post of
Principal as laid down in the above mentioned Government
order dated 22nd February, 1994. The learned Single Judge
by his judgment dated 29th September, 2003 allowed the writ
petition and it was observed as under;
c
D
E
"Therefore, I hold that as regard management,
administration and maintenance of this Institution the State
government at present has denuded itself its authority or
right to interfere with. But the provisions of the Acts namely
West Bengal College Teachers (Security of Service) Act,
1975, West Bengal College Service Commission Act,
1978 and the Calcutta University First Statute, 1979 will
have application unless these laws by themselves exempt
these organizations from being applicable. I do not find any
such exception."
The appointment of the Principal was declared not to have
been made under the provisions of the West Bengal Act of
1975, West Bengal· Act of 1978 and the Calcutta University
First Statute, 1979. A direction was issued to the Governing
i=
Body of the College to take steps to fill the post either
'
temporarily or permanently in accordance with laws in force.
Aggrieved, the Ramakrishna Mission College went in appeal
before the Division Bench. In order to consider the entire matter,
the Division Bench analyzed the judgment of this Court in
G Bramchari Sidheswar Shai's case (supra) extensively. It noticed
the conclusions recorded by this Court as extracted by us
above. The Division Bench concluded as under:-
"Thus, from the questions raised by the Hon'ble Court and
the answers given to each of them by the Hon'ble Court
H
as indicated above, we are fully convinced that although
BHOLANATH MUKHERJEE v. R.K. MISSION V.
433
CENTENARY COLLEGE [SURINDER SINGH NIJJAR, J.]
the Hon'ble Court declined to give protection of Article
A
30(1) or protection under Section 26(a) of the Constitution
to the Ramakrishna Mission and the college established
by it, the Court certainly decided in a most assertive
manner that having regard to the background of the
establishment of the college and having regard to the stand
B
taken by the Government of West Bengal since inception
of the college in the matter of its governance and
management with special reference to office memo dated
18th April, 1978, there is no need to ask for
implementation of the provisions of the Act of 1975 or the c
Act of 1978."
13. The Division Bench negated the contentions of the
learned counsel for the writ petitioners/ appellants that in view
of the provisions contained in the West Bengal Act of 1975,
0
West Bengal Act of 1978 and the Calcutta University First
Statute, 1979, the college could not be allowed to have the
Monk as Principal. It is observed that the Government was very
much aware of the fact that in the matter of this college, the
general procedure for selection of a Principal through the
College Service Commission shall not be made applicable. It
E
is further observed that natural consequence of the aforesaid
conclusion was that there would be no applicatio'n under the
provisions of the Calcutta University First Statute, 1979, aimed
at filling up of temporary vacancy of the post of Principal like
other Government sponsored colleges. In the concluding
F
paragraphs, the Division Bench observed as follows:-
" After close examination of the judgment '6f the Apex Court
rendered in the case of Bramchari Sidheswar Shai's
(supra), we are seriously contemplating whether the
G
present writ petition at all was maintainable before the
learned Single Judge as the parties of the present writ
petition are almost identical of the previous writ petition
and almost same issues as raised in the present petition
were matter of consideration before the Apex court and
l::L
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B
c
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E
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[2011] 5 S.C.R.
further we are of the view that following the long
established principle of judicial discipline and binding
precedent, it was not at all permissible to make any
departure from the conclusion reached by the Apex court
which has a binding effect upon the writ petitioners who
were parties to the earlier adjudication and that apart, the
present writ petition is also barred under the principle of
res judicata.
Thus, having regard to the submissions of contesting
parties and on examination of the materials placed before
us, we are of firm view that following the judgment of the
Apex Court rendered in the case of Bramchari Sidheswar
Shai's (supra) and in view of the recent office memo of the
Government of West Bengal dated 30th April, 2004, it was
not permissible to reopen the issue once again and to
issue any writ dishonouring the mandate of the Apex Court
when admittedly the State Government has not deviated
form its earlier stand relating to the special status accorded
to the college. We, therefore, find sufficient merit in the
present appeal and in the stay petition and we are inclined
to allow the both.
Accordingly, both the appeal and the stay petition are
allowed resulting in dismissal of the writ petition and
setting aside the judgment and order of the learned Single
Judge delivered in connection with Writ Petition No.
29805(W) of 1997. We, however, make no order as to
costs considering the fact and circumstances of the case."
14. This judgment is the subject matter of the present
appeal. We .have heard the learned counsel for parties.
15. Mr. Prashant Bhushan, learned counsel appearing for
the appellants submitted that even if the College established
by the Ramakrishna Mission enjoys a special status, the
appointment on the post of Principal would still has to be made
H in conformity with the qualifications prescribed by the
BHOLANATH MUKHERJEE v. R.K. MISSION V.
435
CENTENARY COLLEGE [SURINDER SINGH NIJJAR, J.]
Government of West Bengal in its Order dated 22nd February,
A
1994. Respondent No.3 does not even possess the
qualifications prescribed by the University Grants Commission.
Moreover, respondent No.3 has not cleared the eligibility test
N.E.T./S.L.E.T. for Lecturer as required by the UGC. His initial
appointment as Acting Principal and thereafter his appointment
B
as permanent Principal was null and void having been made
without following the provisions contained in the West Bengal
Act of 1975 and West Bengal Act of 1978. Learned counsel
submits that the qualifications prescribed under the
Government Order dated 22nd February, 1994 were in fact c
amended by the subsequent G.O.s being G.O. No. 625-Edn
(CS) dated 16th June, 1999 read with G.O. No.1047-Edn (CS)
dated 20th August, 2002. These qualifications were duly
published through advertisement No. 2 of 2004. For the post
of Principal, the qualifications prescribed are as under:-
"I. For General Degree Colleges:
(A) Academic qualifications:
D
(a) Master degree in Arts/Science/ Commerce/Music/Fine
E
Arts with at least 55% marks or its equivalent grade and
good academic record; Ph.D. Degree or evidence of its
equivalent published work of high standard and teaching/
research experience in an affiliated degree college or
University/Other Institutions of Higher Education for at least
F
15 (fifteen) years preferably with administrative
experience. Or
(b) Serving as reader in any affiliated degree College or
University/research Institute with total teaching e;xperience
of not less than 15 years. Or
G
(c) Serving as Selection Grade Lecturer in any affiliated
degree college with at least 55% marks at the Master's
level and good academic record with teaching experience
not less than 15 years in any academic Institution with · H
436
SUPREME COURT REPORTS
[2011] 5 S.C.R.
A
authenticated administrative experience of at least five
years and further having published work equivalent to Ph.D.
degree, the equivalence be evaluated by the University/
Selection Committee consisting of the subject experts who
in turn will have to mainly look in to the following aspects:-
B
c
1.
Number of research paper published,
2.
Quality of research paper,
3.
Relevance of the topic,
4.
Journals where these have been published."
16. It is submitted that respondent No.3 does not possess
the Ph.D, degree. He also did not possess fifteen years
administrative experience at the time of his appointment.
D Learned counsel further submitted that respondent No.3 has
been appointed on the said post merely because he is a monk
at the Ramakrishna Mission. The very purpose of prescribing
minimum qualifications and method of selection for an important
post like Principal of an educational institution has been
E defeated. Learned counsel further submitted that the Division
Bench has wrongly relied on the judgment of Bramchari
Sidheswar Shai's case (supra). The aforesaid judgment had no
relevance to the issue which has been raised in the present
proceedings.
F
17. On the other hand, Mr. L.N. Rao, learned senior
counsel appearing for the respondent Nos.1, 2 and 3 submits
that the litigation in this case does not survive as the appellants
have retired. He further submits that the appellants have not
sought a writ of quo warranto rather the relief sought is that one
G of the senior teachers should be appointed as Principal. The
writ petition was based on individual grievances. The relief
claimed is also for the redressal of individual grievances. All
the appellants had made a claim based on their seniority and
qualifications. Since all the appellants have retired in the mean
H time, the issue has become academic. This Court will,
BHOLANATH MUKHERJEE v. R.K. MISSION V.
437
CENTENARY COLLEGE [SURINDER SINGH NIJJAR, J.]
therefore, decline to examine the matter on merits. He relies
A
on the judgment of this Court in the case of M.L. Binjo/kar Vs.
State ofM.P. 2• On merits, the learned counsel submits that the
grievances of the appellants were that the respondent No.3
lacked fifteen years of experience. However, by now
respondent No.3 possesses the required fifteen years
B
experience. He also relies on certain observations made by this
Court in the case of Ram Sarup Vs. State of Haryana & Ors3•
The entire controversy has been rendered academic in the
peculiar facts and circumstances of this case. In the alternative,
the learned senior counsel submits that the writ petition would c
have to be treated as public interest litigation. It is, however,
settled by this Court that public interest litigation would not be
maintainable in service law cases. In support of this submission,
he relies on the judgments of this Court in the cases of Dr.
Duryodhan Sahu & Ors. Vs. Jitendra Kumar Mishra & Ors4
0
and Gurpa/ Singh Vs. State of Punjab & Ors. 5• Therefore,
again no reliefcan be granted to the writ petitioners/appellants.
18.