# CHANDANA DAS (MALAKAR) v. THE STATE OF WEST BENGAL & ORS

- **Citation:** [2019] 12 S.C.R. 631
- **Court:** Supreme Court of India
- **Decided:** 2019-09-25
- **Case number:** Civil Appeal No. 2858 of 2007
- **Bench:** R. F. Nariman, R. Subhash Reddy, Surya Kant
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/chandana-das-malakar-v-the-state-of-west-bengal-ors-33219
- **Pages:** 30

## Headnote

Service Law:
Appointment - Of teachers - In minority institution - Not
approved by District Inspector of Schools on the ground that the
same was without recommendation by School Service Commission
mandated u/r. 28 of 1969 Rules - Writ petition - Single Judge of
High Court held that the institution being a linguistic minority
institution was entitled u/Art. 30 of the Constitution to appoint its
teachers - Division Bench of High Court held that since the
institution was recognized aided institution, management was
bound to follow mandate of r. 28 of the Rules - Appeal to Supreme
Court - Difference of opinion between Judges of Supreme Court
(one agreeing with opinion of Single Judge of High Court while
the other agreeing with Division Bench of High Court) - Matter
referred to larger Bench - Held: In the facts of the case, it is made
out that the institution is a linguistic minority institution -
Therefore, r. 28 would not apply as the same would result in serious
infraction of the right of the institution u/Art. 30 of the Constitution
to administer the institution with teachers of its own choice -
Management of Recognized Non-Government Institutions (Aided
and Unaided) Rules, 1969 - r. 28 - West Bengal Board of
Secondary Education Act, 1963 - Constitution of India - Art.
30.
Constitution of India:
Art. 30 - Linguistic minority status - Determination of -
Held: Where challenge is to the State law, linguistic minority status
has to be determined State-wise.
Art. 30 - Linguistic minority status - Determination of -
Criteria - Held: Medium of instruction (language) followed in the
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institution would be irrelevant to discover as to whether the
institution in question was founded by a linguistic minority for the
purpose of imparting education to members of its community.
Art. 350B - Special Officer's Report - In respect of linguistic
minority institution - Absence of - Affect on minority status of
the institution - Held: Absence of report of the Special Officer
would not lead to the conclusion that no linguistic minority can
claim protection as such u/Art. 30 (1) of the Constitution.
Allowing the appeals, the Court
HELD: 1. A perusal of the Management of Recognized
Non-Government Institutions (Aided and Unaided) Rules, 1969
as they stood prior to the 2008 amendment, would show that in
case the provisions of Article 30 of the Constitution apply, further
or other rules for the composition, powers, functions of the
managing committee or committees of such institutions or class
of institutions would be framed. It is admitted, that no such Rules
have been framed under Rule 33. [Para 12] [646-C-D]
2. By a letter dated 19th April, 1976, Respondent No.4
institution wrote to the Secretary, West Bengal Board of
Secondary Education asking that it may be declared as a minority
community institution and the special constitution for the same
may be approved on that basis. By a letter dated 7th May, 1982
from the Secretary, West Bengal Board of Secondary Education
to the Respondent No.4, a special constitution of the managing
committee of the school was set up. It is obvious on a reading
of this document that whereas Rule 6 of the Rules required only
one representative of the Sikh community to be on the
Management Board, there are three representatives appointed.
Equally, whereas Rule 6 requires that there be six guardian
representatives to be elected, only four are provided. Thus, it
cannot be said that by acceptance of this letter, Respondent No.4
has, in any manner, unequivocally waived its right to be treated
as a minority institution. On the contrary, the application dated
19th April, 1976, was to recognise it as a minority institution, and
merely because Rule 8(3) of the Rules was purportedly applied,
it does not mean that the minority character of the institution
was not kept in mind while framing the special constitution for
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CHANDANA DAS (MALAKAR)
v.
THE STATE OF WEST BENGAL & ORS.
(Civil Appeal No. 2858 of 2007 etc.)
SEPTEMBER 25, 2019
[R. F. NARIMAN, R. SUBHASH REDDY AND
SURYA KANT, JJ.]
Service Law:
Appointment - Of teachers - In minority institution - Not
approved by District Inspector of Schools on the ground that the
same was without recommendation by School Service Commission
mandated u/r. 28 of 1969 Rules - Writ petition - Single Judge of
High Court held that the institution being a linguistic minority
institution was entitled u/Art. 30 of the Constitution to appoint its
teachers - Division Bench of High Court held that since the
institution was recognized aided institution, management was
bound to follow mandate of r. 28 of the Rules - Appeal to Supreme
Court - Difference of opinion between Judges of Supreme Court
(one agreeing with opinion of Single Judge of High Court while
the other agreeing with Division Bench of High Court) - Matter
referred to larger Bench - Held: In the facts of the case, it is made
out that the institution is a linguistic minority institution -
Therefore, r. 28 would not apply as the same would result in serious
infraction of the right of the institution u/Art. 30 of the Constitution
to administer the institution with teachers of its own choice -
Management of Recognized Non-Government Institutions (Aided
and Unaided) Rules, 1969 - r. 28 - West Bengal Board of
Secondary Education Act, 1963 - Constitution of India - Art.
30.
Constitution of India:
Art. 30 - Linguistic minority status - Determination of -
Held: Where challenge is to the State law, linguistic minority status
has to be determined State-wise.
Art. 30 - Linguistic minority status - Determination of -
Criteria - Held: Medium of instruction (language) followed in the
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institution would be irrelevant to discover as to whether the
institution in question was founded by a linguistic minority for the
purpose of imparting education to members of its community.
Art. 350B - Special Officer's Report - In respect of linguistic
minority institution - Absence of - Affect on minority status of
the institution - Held: Absence of report of the Special Officer
would not lead to the conclusion that no linguistic minority can
claim protection as such u/Art. 30 (1) of the Constitution.
Allowing the appeals, the Court
HELD: 1. A perusal of the Management of Recognized
Non-Government Institutions (Aided and Unaided) Rules, 1969
as they stood prior to the 2008 amendment, would show that in
case the provisions of Article 30 of the Constitution apply, further
or other rules for the composition, powers, functions of the
managing committee or committees of such institutions or class
of institutions would be framed. It is admitted, that no such Rules
have been framed under Rule 33. [Para 12] [646-C-D]
2. By a letter dated 19th April, 1976, Respondent No.4
institution wrote to the Secretary, West Bengal Board of
Secondary Education asking that it may be declared as a minority
community institution and the special constitution for the same
may be approved on that basis. By a letter dated 7th May, 1982
from the Secretary, West Bengal Board of Secondary Education
to the Respondent No.4, a special constitution of the managing
committee of the school was set up. It is obvious on a reading
of this document that whereas Rule 6 of the Rules required only
one representative of the Sikh community to be on the
Management Board, there are three representatives appointed.
Equally, whereas Rule 6 requires that there be six guardian
representatives to be elected, only four are provided. Thus, it
cannot be said that by acceptance of this letter, Respondent No.4
has, in any manner, unequivocally waived its right to be treated
as a minority institution. On the contrary, the application dated
19th April, 1976, was to recognise it as a minority institution, and
merely because Rule 8(3) of the Rules was purportedly applied,
it does not mean that the minority character of the institution
was not kept in mind while framing the special constitution for
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future management of the school. On facts, therefore, it is
difficult to appreciate how Respondent No.4 can be said to have
waived its right to be treated as a linguistic minority institution
set up by a linguistic minority, namely, the Sikhs in the State of
West Bengal. [Paras 13 and 15] [646-E; 647-D-H; 648-A-C]
3. If Respondent No.4 is a minority institution, Rule 28 of
Management of Recognized Non-Government Institutions
(Aided and Unaided) Rules, 1969, cannot possibly apply as there
would be a serious infraction of the right of Respondent No.4
to administer the institution with teachers of its choice. [Para
23] [655-B-C]
Kesavananda Bharati v. State of Kerala (1973) 4 SCC
225 : [1973] 0 Suppl. SCR 1 ; Ahmedabad St.
Xavier's College Society v. State of Gujarat [1975] 1
SCR 173 ; T.M.A. Pai Foundation v. State of
Karnataka (2002) 8 SCC 481 - followed
4. The competent authorities set up by the West Bengal
Board of Secondary Education Act, 1963 do not give any power
to recognise a minority institution. Respondent No.4 was started
as a primary school by the Sikh community living in Kolkata to
impart education to their children who came from Punjab, so that
they may learn their mother tongue and religion, ethics etc.
[Para 24] [655-D-E]
N. Ammad v. Emjay High School (1998) 6 SCC 674 :
[1998] 1 Suppl. SCR 453 ; Corporate Educational
Agency v. James Mathew (2017) 15 SCC 595 : [ 2017]
6 SCR 498 - relied on.
5. It cannot be said that Respondent No.4 is, in any
manner, estopped from claiming its minority status on the facts
of the present case. Quite apart from this, it is settled law that
the fundamental right under Article 30 cannot be waived. [Para
26] [657-G]
Olga Tellis v. Bombay Municipal Corporation (1985)
3 SCC 545 : [1985] 2 Suppl. SCR 51 - followed.
K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 :
[2017] 10 SCR 569 - relied on.
CHANDANA DAS (MALAKAR) v. STATE OF
WEST BENGAL & ORS.
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6. Article 350B of the Constitution only sets up a Special
Officer for linguistic minorities, to be appointed by the
President, whose duty it is to investigate matters relating to
safeguards provided for linguistic minorities and send reports
to the President of India, which reports the President shall cause
to be laid before each House of Parliament, and send to the
Governments of the States concerned. Even a cursory reading
of this Article cannot possibly lead to the conclusion that absent
a report by the Special Officer, no linguistic minority can claim
protection as such under Article 30(1) of the Constitution. [Para
29] [659-C]
7. Where the challenge is to a State law, linguistic minority
status would have to be determined State-wise. There can be
no doubt that qua the State of West Bengal, Sikhs are a linguistic
minority vis-à-vis their language, namely, Punjabi, as against the
majority language of the State, which is Bengali. The argument
on behalf of the State that the school is, in fact, teaching in the
Hindi medium is neither here nor there. What is important is
that the fundamental right under Article 30 refers to the
"establishment" of the school as a linguistic minority institution
which is very clear from the paragraphs 5(a) and 5(b) of letter
dated 19th April, 1976. Therefore, the medium of instruction,
whether it be Hindi, English, Bengali or some other language
would be wholly irrelevant to discover as to whether the said
school was founded by a linguistic minority for the purpose of
imparting education to members of its community. [Paras 30 and
31] [659-D-H]
D.A.V. College v. State of Punjab [1971] Supp. SCR
688 ; T.M.A. Pai Foundation v. State of Karnataka
(2002) 8 SCC 481 - followed.
Shiromani Gurudwara Prabandhak Committee v. Shail
Mittal SLP (C) No.2755/2008 - distinguished.
Chandana Das (Malakar) v. State of West Bengal
(2015) 12 SCC 140 : Bal Patil v. Union of India (2005)
6 SCC 690 : [2005] 2 Suppl. SCR 459 ; Brahmo
Samaj Education Society v. State of West Bengal
(2004) 6 SC 224 : [ 2004] 2 Suppl. SCR 214 -
referred to.
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Case Law Reference
(2015) 12 SCC 140
referred to
Para 1
SLP (C) No. 2755/2008
referred to
Para 8
[1973] Suppl. SCR 1
followed
Para 17
(1975) 1 SCR 173
followed
Para 18
(2002) 8 SCC 481
followed
Para 19
[1998] 1 Suppl. SCR 453
relied on
Para 25
[2017] 6 SCR 498
relied on
Para 25
[1985] 2 Suppl. SCR 51
followed
Para 26
[2017] 10 SCR 569
relied on
Para 26
[1971] Supp. SCR 688
followed
Para 30
[2005] 2 Suppl. SCR 459
referred to
Para 33
[2004] 2 Suppl. SCR 214
distinguished
Para 33
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2858
of 2007.
From the Judgment and Order dated 23.09.2004 of the High
Court of Judicature at Calcutta in CAN No. 3863 of 2004.
With
Civil Appeal No. 2859 of 2007.
Siddharth Bhatnagar, Sr. Adv., Ms. Sonia Dube, S. Chakraborty,
Ms. Kanchan Yadav, Anurag Singh, Ms. Harshita Verma, Ms. Surbhi
Anand, Aditya Sidhra, M/s. Legal Options, Advs. for the Appellant.
Soumya Chakraborty, Rana Mukherjee, Sr. Advs. Suhaan
Mukerji, Ms. Astha Sharma, Ms. Kajal Dalal, Amit Verma, M/S. PLR
Chambers and Co., Ms. Daisy Hannah, Ms. Sreoshi Chatterjee,
Ms. Kanika Sharma, Shekhar Kumar, Advs. for the Respondents.
The Judgment of the Court was delivered by
R. F. NARIMAN, J.
1. These appeals have been referred to a Three Judge Bench in
view of a disagreement between T.S. Thakur, J. and R. Banumathi, J.,
CHANDANA DAS (MALAKAR) v. STATE OF
WEST BENGAL & ORS.
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reported as Chandana Das (Malakar) v. State of West Bengal
(2015) 12 SCC 140. The facts that are necessary in order to decide
these appeals are set out by Thakur, J. in his judgment as follows:
"2. The appellants, it appears, were appointed as teachers on
temporary basis in what is known as Khalsa Girls High School,
Paddapukur Road, Bhowanipore, Calcutta. Their appointment did
not, however, meet the approval of the District Inspector of
Schools, Calcutta, according to whom any such 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 (hereinafter referred to as "the Rules").
3. Aggrieved by the order passed by the District Inspector, the
appellants approached the High Court of Calcutta in Writ Petitions
Nos. 16256 and 16255 of 2003 which were allowed by a learned
Single Judge of the High Court by his order dated 29-1-2004
holding that the Institution in which the appellants were appointed
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-time teachers with effect from 28-7-1999
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 Single
Judge, the State of West Bengal, Director of School Education
and District Inspector of Schools preferred CANs Nos. 3861 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 23-9-2004 [State of W.B.
v. Sukhbindar Kaur, 2004 SCC OnLine Cal 570 : (2005) 3 CHN
604]. The High Court held that since the Institution in which the
appellants were appointed was a 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.
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5. The Division Bench further held that the appellants having
been appointed beyond the sanctioned staff strength at the
relevant point of time and dehors the Rules could not claim any
approval in their favour. The Court noted that the directions issued
by the 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 its being
a minority institution it was not open to the employee writ
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 (3) of Rule 8 of
the said Rules it represents to the State 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 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.
6. The short question that falls for determination is whether
Khalsa Girls High School, Poddapukur 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
Institutions (Aided and Unaided), 1969 framed under the
provisions of the West Bengal Board of Secondary Education
Act, 1963?
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8. 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 for the
benefit of Punjabi-speaking Sikhs settled in Calcutta and other
parts of West Bengal. The affidavit states that on 19-4-1976 a
detailed memorandum was sent by the Institution to the Secretary,
West Bengal Board of Secondary Education asking for approval
CHANDANA DAS (MALAKAR) v. STATE OF
WEST BENGAL & ORS. [R. F. NARIMAN, J.]
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of the special constitution for the school 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 the West Bengal Minority
Commission in terms of its Order dated 6-10-1989. The affidavit
states that minority status of the 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 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 to the appointment of teachers in minority
institutions, therefore, does not apply in the present case."
2. The question posed by Thakur, J. in paragraph 6 of the
judgment was answered stating:
"21. It is unnecessary to multiply decisions on the subject for
the legal position is well settled. Linguistic institution and religious
are entitled to establish and administer their institutions. Such right
of administration includes the right of appointing teachers of its
choice but does not denude the State of its power to frame
regulations that may prescribe the conditions of eligibility for
appointment of such teachers. The regulations can also prescribe
measures to ensure that the institution is run efficiently 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 religious minorities for establishing
and running their educational institutions, such grant cannot be
denied to such institutions only because the institutions are
established 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. Suffice it to say that once Respondent 4 Institution
is held to be a minority institution entitled to the protection of
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Articles 26 and 30 of the Constitution of India the right to appoint
teachers of its choice who satisfy the conditions of eligibility
prescribed for such appointments under the relevant rules is
implicit in their rights to administer such institutions. Such rights
cannot 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 the minority status.
22. The view taken by the Division Bench of the High Court
that appointments of the appellants were dehors the Rules
inasmuch as they were not made by the School Service
Commission hence did not qualify for approval, does not appear
to us to be sound. The mechanism provided for making
appointments under Rule 28 has no application to minority
educational institutions.
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24. Placed in juxtaposition to Rule 33 of the Rules extracted
earlier, 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
minority educational institutions the minority educational institution
in the present case was entitled to select and appoint its teachers
so long as other conditions for such appointments, namely,
availability of substantive vacancies and the eligibility of the
candidates for such appointments were duly satisfied.
25. It is not, in the instant case, disputed that the appellants were
both duly qualified for appointment as teachers in the subject
concerned. It is also not in dispute 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 grantin-aid against their posts.
26. The only other question that could possibly arise in the matter
of approval of such appointments was the absence of a
sanctioned post as on the date the appointments were made. It
was contended by the learned counsel for the appellants that
CHANDANA DAS (MALAKAR) v. STATE OF
WEST BENGAL & ORS. [R. F. NARIMAN, J.]
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vacancies had subsequently arisen against which the appointments
of the appellants could be approved and the salary payable to
them from the date of such vacancies becoming available
released. If that be so, we see no reason why the appointments
of the appellants should not be approved with effect from the
date of such vacancies becoming available against which such
appointments could be regularised. To that extent the relief
prayed for by the appellants shall be suitably moulded."
3. Banumathi, J. delivered a separate judgment disagreeing with
these conclusions. She agreed with the Division Bench judgment of the
Calcutta High Court, which had upset the Single Bench judgment of
that Court, and held as follows:
"34. The impugned judgment [State of W.B. v. Sukhbindar Kaur,
2004 SCC OnLine Cal 570 : (2005) 3 CHN 604] of the Division
Bench of the Calcutta High Court is as under: (Sukhbindar
Kaur case [State of W.B. v. Sukhbindar Kaur, 2004 SCC
OnLine Cal 570 : (2005) 3 CHN 604] , SCC OnLine Cal para
4)
"4. ... In such view of the matter, a Constitution permitted
under sub-rule (3) of Rule 8 of the said Rules cannot be in
relation to minority community institutions. That has been
amply cleared by framing Rule 33 in the Management Rules
which specifically deals with institutions entitled to protection
of Articles 26 and 30. It authorises the State Government
to make special rules for constitution of the Managing
Committee of such institutions. The moment a minority
community applies for a special constitution under sub-rule
(3) of Rule 8 of the said Rules it represents to the State
Government that it is not claiming the status of minority
community at least at the time when such application is
made."
In my considered view, the above reasoning of the Calcutta High
Court is to be affirmed for the reasons indicated by me herein."
4. The main grounds for disagreement were two. In paragraphs
36 to 40, the learned Judge found that in the absence of any order by
the competent authority under the West Bengal Board of Secondary
Education Act granting minority status to the Respondent No.4 school,
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the said school cannot claim to be a minority institution for the purpose
of Article 30 and is, therefore, bound, being an aided institution, by the
1969 Rules, in particular Rule 28 thereof. The other plank of the decision
was contained in paragraphs 43 and 51, stating that the school having
accepted the special constitution in terms of Rule 8(3) of the Rules,
the school is estopped from contending that it is a minority institution
governed by special rules to be framed by the State under Rule 33 of
the Rules.
5. Shri Siddharth Bhatnagar, learned Senior Advocate appearing
on behalf of the Appellants, has taken us through the impugned High
Court judgment as well as the judgments of Thakur, J. and Banumathi,
J. He also read Rules 6, 8(3), 28 and 33 of the Rules together with
the request dated 19th April, 1976 of the Khalsa Girls School, stating
that it was formed on behalf of the Sikh religious and linguistic minority
in the State of West Bengal and to accord it the status of a minority
institution. He then relied upon an order dated 7th May, 1982 of the
West Bengal Board of Secondary Education, in which, despite approving
of a special constitution for future management of the school, was done
in deviation of Rule 6 in recognition of the fact that it was a minority
institution. He also brought to our notice the fact that since 2008, Rule
32(c) is now substituted as follows:
"32. Rules not to apply to certain Institutions- Nothing in
these rules shall apply to -
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(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);
xxx xxx xxx
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 nonGovernment 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;"
As a consequence, Rule 33 has been omitted.
CHANDANA DAS (MALAKAR) v. STATE OF
WEST BENGAL & ORS. [R. F. NARIMAN, J.]
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6. He then took us through Section 2(c) of the West Bengal
Minorities' Commission Act, 1996, which states as follows:
"2. Definitions - In this Act, unless the context otherwise
requires,-
xxx xxx xxx
(c) "Minority", for the purpose of this Act, means a community
based on religion such as Muslim, Christian, Sikh, Buddhist, or
Zoroastrian (Parsee), and includes -
(i) such other minority as the Central Government may notify
under clause (c) of section 2 of the National Commission
for Minorities Act, 1992, or .
(ii) such other minority based on language within the purview
of article 29 of the Constitution of India (hereinafter referred
to as the Constitution) as the State Government may, by
notification, specify from time to time;"
On facts, he argued that it was wholly incorrect to hold that the
management of the school had given up its right to be a minority
institution. He also argued, based on several judgments, that the
fundamental right under Article 30 of the Constitution of India cannot
be waived. He also took us through various judgments to show that
though Respondent No.4 school was an aided institution, Rule 28 qua
appointment of teachers would not be applicable to it as it is a minority
institution. He also cited judgments before us to show that it was
unnecessary to first obtain a declaration from the competent authority
that the school is a minority institution as any such declaration would
only be a recognition of a pre-existing right, if the institution was, in
fact, set up by the minority community for the minority community.
7. Shri Rana Mukherjee, learned Senior Advocate appearing on
behalf of Respondent No.4 school, broadly echoed Shri Bhatnagar's
arguments and also took us through the letter dated 19th April, 1976 to
show that Respondent No.4 school was set up purely as a linguistic
minority school in the State of West Bengal. Hence, he supported the
prayer of the teachers that they be regularised against vacancies that
have since arisen.
8. Shri Soumya Chakraborty, learned Senior Advocate appearing
on behalf of the State, strongly relied upon the judgment of Banumathi,
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J. and, in addition, argued that Article 350B would make it clear that
the institution must first be declared to be a minority institution before
it can avail of the fundamental right under Article 30. He added that in
any case the medium of instruction was Hindi and, therefore, being the
national language, the institution could not be said to cater to the needs
of the minority community. He also made a fervent plea to refer the
matter to a larger Bench, given the fact that a Division Bench of this
Court had in Shiromani Gurudwara Prabandhak Committee v. Shail
Mittal SLP (C) No. 2755/2008 by an order dated 18th November, 2010
referred a similar matter to be heard along with other matters by a
Constitution Bench.
9. Before embarking on the questions raised in these appeals, it
is important to first advert to the West Bengal Board of Secondary
Education Act, 1963. It is enough to state that this Act establishes the
West Bengal Board of Secondary Education and various Committees
and Regional Examination Councils and then lays down their powers.
Suffice it to say that it is no part of the powers and duties of the Board
or of any authority set up therein to declare that a particular institution
is, or is not, a minority institution.
10. It is now necessary to advert to the Management of
Recognised Non-Government Institutions (Aided and Unaided) Rules,
1969. Rule 6 is relevant and is set out hereinbelow as follows:
"6. Composition of the Committee of an Institution other
than that sponsored by the State Government:
The Committee shall consist of the following members:-
(i) one founder to be chosen in the manner provided in Rule
6A;
(ii) one Life Member, if any, to be selected or nominated in
the manner laid down in Rule 6A;
(iii) six guardians of whom two shall be woman in case of a
girls school in the case of institutions having classes XI and
XII recognized by the West Bengal Council of Higher
Secondary Education and/or X-Class High Schools and
three guardians in the case of Junior High Schools, to be
elected or nominated, as the case may be, in the manner
laid down in sub-rule (2) of Rule 6A;
CHANDANA DAS (MALAKAR) v. STATE OF
WEST BENGAL & ORS. [R. F. NARIMAN, J.]
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(iv) one person interested in education (to be co-opted) in the
manner laid down in clause (i) of sub-rule (3) of Rule 6A;
Provided that in the case of an institution located within
the jurisdiction of a Panchayet, one person interested in
education shall be the nominee of the Local Panchayet Samity.
The person so nominated shall be a resident of the locality within
the jurisdiction of the said Panchayet Samity;
(v) three teaching staff except the Head of an Institution and
one non-teaching staff in the case of an institution with
Higher Secondary Classes (XI and XII) recognised by the
West Bengal Council of Higher Secondary Education and/
or a X-Class High School and two members from among
the teaching and non-teaching staff in the case of a junior
High School, to be elected in the manner prescribed in
Clause (i) of sub-rule (4) of Rule 6A;
(vi) one member of the Committee shall be nominated by the
Director or by an officer authorised by him in this behalf;
(vii) Head of the Institution (ex-officio).
Provided that no person shall be eligible to represent
more than one category.
Rule 8(3) is important for our purpose and states as follows:
"8. Power of Executive Committee to approve and
Supersede Committee, to appoint Administrator or Ad-hoc
Committee and to grant special constitution;
xxx xxx xxx
(3) Notwithstanding anything contained in these rules, the
Executive Committee shall have the power to approve, on the
application of any Institution or class 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 special
constitution in favour of an Institution or a class of Institution,
the Executive Committee shall ensure that representation of the
members of the teaching and the non-teaching staff, guardians
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and the member nominated by the Director or an officer
authorised by him in this behalf, is made according to clause (iii),
clause (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 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 be, to
exercise the powers and perform the functions of the Committee
for such period as may be specified in the order."
Rule 28(1)(i), which is sought to be applied to Respondent No.4,
states as follows:
"28. Powers of Committee - (1) In an aided institution the
Committee shall, subject to the provisions of any Grant-in-aid
Scheme or Pay Revision Scheme or any order or direction or
guide-lines issued by the State Government or the Director in
connection therewith and in force for the time being, have the
power -
(i) to appoint on the recommendation of the West Bengal
Regional School Service Commission in respect of the region
concerned, teachers on permanent or temporary basis against
permanent or temporary vacancies, if and when available, within
the sanctioned strength of teachers and on approval by the
Director or any Officer authorized by him, such approval being
sought for within a fortnight from the date of decision of the
committee in this behalf;"
Rules 32 and 33 are also important and state as follows:
"32. Rules not to apply to certain Institutions-Nothing in
these rules shall apply to the Institutions maintained and managed
by the State Government, the Union Government or the Railway
Board or the schools managed under the provisions of the St.
Thomas' School Act, 1923, (Bengal Act XII of 1923) or to any
other Institution as may be specified by the State Government
by order, made in this behalf from time to time.
CHANDANA DAS (MALAKAR) v. STATE OF
WEST BENGAL & ORS. [R. F. NARIMAN, J.]
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33. Power of the State Government to frame further rules
for certain Institutions-Nothing in these rules shall affect the
power of the State Government to frame, on the application of
any Institution or class of 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."
11. These Rules have since been amended by a notification dated
29th August, 2008, as has been noticed hereinabove. And Rule 33 has
been omitted altogether.
12. A perusal of the Rules, as they stood prior to the 2008
amendment, would show that in case the provisions of Article 30 of
the Constitution apply, further or other rules for the composition, powers,
functions of the managing committee or committees of such institutions
or class of institutions would be framed. It is admitted, as has been
noticed in the judgment of Thakur, J. that no such Rules have been
framed under Rule 33.
13. At this juncture, it may be noted that by a letter dated 19th
April, 1976, Respondent No.4 wrote to the Secretary, West Bengal
Board of Secondary Education asking that it may be declared as a
minority community institution and the special constitution for the same
may be approved on that basis. What is of importance is what is stated
in paragraph 5(a) and 5(b) of the said letter, which is set out
hereinbelow:
"5. The brief History of the said Khalsa High School is as follows:-
(a) In the year 1932 this institution was started in the shape of a
Khalsa Primary School by the Sikh Community living in Calcutta
to impart education to their children who came from Punjab
where they had ample opportunities to learn their mother tongue
viz: Punjabi and to impart religious, ethical and moral training in
soothing atmosphere.
(b) Earlier to this in the year 1930, the late Reverend Sant
Mastan Singh started a small Pathashala at 573, Paddopukur
Road, Calcutta, with about twenty children to teach them Punjabi,
in Gurumukh Script. In 1932, Baba Harnam Singh Kaunka was
made in charge of that School which was becoming popular day
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by day among the Sikh Community. After some time he opened
a new School at 16, Paddapukur Road, Calcutta. By this time
the population of the Sikhs was increasing in Calcutta. A large
number of Sikh Children were facing serious difficulties in the
absence of their own proper School. The urgent need of opening
a School of their own choice came to the forefront and it was
unanimously resolved by the Sikhs in a congregation to start a
Khalsa Primary School without any loss of time. The social and
religious workers left no stone unturned to get a suitable building
for this purpose. After intense endeavours the building situated
at No. 75, Bakul Begal Road, Calcutta was acquired on rent to
start with. Thus, Khalsa Primary School was inaugurated on the
1st November, 1933, by Sardar B.R. Singh, Head of Eastern
Railway. He donated a handsome amount to the School on this
pious occasion. Baba Harnam Singh Kanuka threw his lot with
this venture of the Sikh Community in toto."
14. By a letter dated 7th May, 1982 from the Secretary, West
Bengal Board of Secondary Education to the Respondent No.4, a special
constitution of the managing committee of the school was set up as
follows:
1. Representative (s) of :-
(i) Bara Sikh Sangat
1(one)
(ii) Sri Guru Singh Sabha
1(one)
(iii) Gurudwara Sant Kutia
1(one)
2. Guardians' representative (to be elected)
4
3. Members of the teaching & non-teaching
Staff (to be jointly elected)
4(3+1)
4. P.I.E. (as per provisions of the amended rules
1
5. Head of the institution (ex-officio)
1
6. Departmental Nominee
1
14
15. It is obvious on a reading of this document that whereas Rule
6 required only one representative of the Sikh community to be on the
Management Board, there are three representatives appointed. Equally,
CHANDANA DAS (MALAKAR) v. STATE OF
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whereas Rule 6 requires that there be six guardian representatives to
be elected, only four are provided for by this letter. Thus, it cannot be
said that by acceptance of this letter, Respondent No.4 has, in any
manner, unequivocally waived its right to be treated as a minority
institution. On the contrary, the application dated 19th April, 1976, was
to recognise it as a minority institution, and merely because Rule 8(3)
of the Rules was purportedly applied, it does not mean that the minority
character of the institution was not kept in mind while framing the
special constitution for future management of the school. On facts,
therefore, it is difficult to appreciate how the Respondent No.4 can be
said to have waived its right to be treated as a linguistic minority
institution set up by a linguistic minority, namely, the Sikhs in the State
of West Bengal.
16. It is important at this juncture to first set out Article 30 of
the Constitution of India. Article 30(1) states:
"30. Right of minorities to establish and administer
educational institutions -
(1) All minorities, whether based on religion or language, shall
have the right to establish and administer educational institutions
of their choice."
17. The historical reasons for enacting Article 30(1) have been
set out in some detail in the judgment of Shelat, J. and Grover, J. in
Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 as
follows:
"535-A - It may be recalled that as regards the minorities the
Cabinet Mission had recognised in their report to the British
Cabinet on May 6, 1946 only three main communities; general,
Muslims and Sikhs. General community included all those who
were non- Muslims or non-Sikhs. The Mission had recommended
an Advisory Committee to be set up by the Constituent Assembly
which was to frame the rights of citizens, minorities, tribals and
excluded areas. The Cabinet Mission statement had actually
provided for the cession of sovereignty to the Indian people
subject only to two matters which were: (1) willingness to
conclude a treaty with His Majesty's Government to cover
matters arising out of transfer of power and (2) adequate
provisions for the protection of the minorities. Pursuant to the
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above and paras 5 and 6 of the Objectives Resolution the
Constituent Assembly set up an Advisory Committee on January
24, 1947. The Committee was to consist of representatives of
muslims, the depressed classes or the scheduled castes, the Sikhs,
Christians, Parsis, Anglo-Indians, tribals and excluded areas
besides the Hindus. As a historical fact it is safe to say that at a
meeting held on May 11, 1949 a resolution for the abolition of all
reservations for minorities other than the scheduled castes found
whole hearted support from an overwhelming majority of the
members of the Advisory Committee. So far as the scheduled
castes were concerned it was felt that their peculiar position would
necessitate special reservation for them for a period of ten years.
It would not be wrong to say that the separate representation of
minorities which had been the feature of the previous
Constitutions and which had witnessed so much of communal
tension and strife was given up in favour of joint electorates in
consideration of the guarantee of fundamental rights and
minorities' rights which it was decided to incorporate into the new
Constitution."
(Emphasis supplied)
18. This was further fleshed out in the judgment of Khanna, J.
in Ahmedabad St. Xavier's College Society v.