# SK. MD. RAFIQUE v. MANAGING COMMITTEE, CONTAI RAHAMANIA HIGH MADRASAH AND OTHERS

- **Citation:** [2020] 1 S.C.R. 185
- **Court:** Supreme Court of India
- **Decided:** 2020-01-06
- **Case number:** Civil Appeal No. 5808 of 2017
- **Bench:** Arun Mishra, Uday Umesh Lalit
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sk-md-rafique-v-managing-committee-contai-rahamania-high-madrasah-and-others-34170
- **Pages:** 122

## Headnote

Constitution of India:
Art. 30(1) - Aided ' Madrasah' (a minority institution) -
Process of appointment of teachers in - Taken over and entrusted
to Commission constituted under West Bengal Madrasah Service
Commission Act, 2008 - Validity of s. 8, 10, 11 and 12 of the Act
challenged, alleging that the same transgressed upon the rights of
a minority institution of choosing its own teachers - Single Judge
of the High Court held that ss. 8, 10, 11 and 12 of the Act were ultra
vires - The judgment was upheld by Division Bench of High Court
- Appeal to Supreme Court - Held: The essence of Art. 30(1) is to
ensure equal treatment between majority and minority institutions -
A regulation framed in the national interest must apply to all
institutions regardless of they being minority or majority -
Regulation, if seeks to ensure the standards of excellence of the
institutions while preserving the right of the minorities, is permissible
- The Act has been specially designed for Madrasahs and Madrasah
Education system in the State - Legislature has taken care that
composition of the Commission would ensure compatibility of the
teachers who would be selected to impart education in Madrasah
education system - The Act has also provided that Managing
Committee of the Madrasah can point out error in appointment made
by the Commission and that the Madrasah has the right to refuse
the appointment of a candidate recommended by the Commission -
Thus the Act seeks to achieve 'excellence' in education and also
seeks to promote interest of the minority institution - Therefore, the
provisions of the Act, cannot be said to be transgressing the rights
of the minority educational institutions - Sections 8, 10, 11 and 12
of the Act are valid and constitutional - Hence, all the nominations
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of the teachers made under the Act are valid and operative - West
Bengal Madrasah Service Commission Act, 2008 - ss. 8, 10, 11
and 12 - West Bengal Madrasah Service Commission Recruitment
(Selection and Recommendation of Persons for Appointment and
Transfer to the Posts of Teaching and Non-Teaching Staff) Rules,
2010 - r. 8.
Disposing of the appeal, the Court
HELD : 1. Out of five incidents which constitute "the right
to establish and administer" an educational institution as noted
in *TMA Pai Foundation case, the right to admit students has not
been considered to be an absolute and an unqualified right. The
decision in **P.A. Inamdar case shows that in professional
educational institutions or those imparting higher education, merit
based selection has been taken to be in the interest of the nation
and subserving and strengthening the national welfare. Selection
of meritorious students has been accepted to be in the national
interest. A minority institution cannot in the name of right under
Article 30(1) of the Constitution, disregard merit or merit-based
selection of students as regards professional and higher
education. The right to take disciplinary action against the staff
has also not been accepted to be an unqualified right. *TMA Pai
Foundation case itself lays down that even in an unaided minority
educational institution, a mechanism must be evolved and
appropriate Tribunal must be constituted to consider the
grievances and till then the Tribunals could be presided over by
a judicial officer of the rank of a District Judge. Going by the
decision *TMA Pai Foundation case so long as the principles laid
down therein are satisfied, it is permissible if any regulations
seek to ensure the standard of excellence of the institutions while
preserving the right of the minorities to establish and administer
their educational institutions. [Para 45] [300-D-H; 301-A]
2. When it comes to the right to appoint teachers, in terms
of law laid down in *TMA Pai Foundationcase, a regulation framed
in the national interest must necessarily apply to all institutions
regardless whether they are run

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SK. MD. RAFIQUE
v.
MANAGING COMMITTEE, CONTAI RAHAMANIA HIGH
MADRASAH AND OTHERS
(Civil Appeal No. 5808 of 2017 etc.)
JANUARY 6, 2020
[ARUN MISHRA AND UDAY UMESH LALIT, JJ.]
Constitution of India:
Art. 30(1) - Aided ' Madrasah' (a minority institution) -
Process of appointment of teachers in - Taken over and entrusted
to Commission constituted under West Bengal Madrasah Service
Commission Act, 2008 - Validity of s. 8, 10, 11 and 12 of the Act
challenged, alleging that the same transgressed upon the rights of
a minority institution of choosing its own teachers - Single Judge
of the High Court held that ss. 8, 10, 11 and 12 of the Act were ultra
vires - The judgment was upheld by Division Bench of High Court
- Appeal to Supreme Court - Held: The essence of Art. 30(1) is to
ensure equal treatment between majority and minority institutions -
A regulation framed in the national interest must apply to all
institutions regardless of they being minority or majority -
Regulation, if seeks to ensure the standards of excellence of the
institutions while preserving the right of the minorities, is permissible
- The Act has been specially designed for Madrasahs and Madrasah
Education system in the State - Legislature has taken care that
composition of the Commission would ensure compatibility of the
teachers who would be selected to impart education in Madrasah
education system - The Act has also provided that Managing
Committee of the Madrasah can point out error in appointment made
by the Commission and that the Madrasah has the right to refuse
the appointment of a candidate recommended by the Commission -
Thus the Act seeks to achieve 'excellence' in education and also
seeks to promote interest of the minority institution - Therefore, the
provisions of the Act, cannot be said to be transgressing the rights
of the minority educational institutions - Sections 8, 10, 11 and 12
of the Act are valid and constitutional - Hence, all the nominations
 [2020] 1 S.C.R. 185
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of the teachers made under the Act are valid and operative - West
Bengal Madrasah Service Commission Act, 2008 - ss. 8, 10, 11
and 12 - West Bengal Madrasah Service Commission Recruitment
(Selection and Recommendation of Persons for Appointment and
Transfer to the Posts of Teaching and Non-Teaching Staff) Rules,
2010 - r. 8.
Disposing of the appeal, the Court
HELD : 1. Out of five incidents which constitute "the right
to establish and administer" an educational institution as noted
in *TMA Pai Foundation case, the right to admit students has not
been considered to be an absolute and an unqualified right. The
decision in **P.A. Inamdar case shows that in professional
educational institutions or those imparting higher education, merit
based selection has been taken to be in the interest of the nation
and subserving and strengthening the national welfare. Selection
of meritorious students has been accepted to be in the national
interest. A minority institution cannot in the name of right under
Article 30(1) of the Constitution, disregard merit or merit-based
selection of students as regards professional and higher
education. The right to take disciplinary action against the staff
has also not been accepted to be an unqualified right. *TMA Pai
Foundation case itself lays down that even in an unaided minority
educational institution, a mechanism must be evolved and
appropriate Tribunal must be constituted to consider the
grievances and till then the Tribunals could be presided over by
a judicial officer of the rank of a District Judge. Going by the
decision *TMA Pai Foundation case so long as the principles laid
down therein are satisfied, it is permissible if any regulations
seek to ensure the standard of excellence of the institutions while
preserving the right of the minorities to establish and administer
their educational institutions. [Para 45] [300-D-H; 301-A]
2. When it comes to the right to appoint teachers, in terms
of law laid down in *TMA Pai Foundationcase, a regulation framed
in the national interest must necessarily apply to all institutions
regardless whether they are run by majority or minority as the
essence of Article 30(1) of the Constitution is to ensure equal
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treatment between the majority and minority institutions. An
objection can certainly be raised if an unfavourable treatment is
meted out to an educational institution established and
administered by minority. But if ensuring of excellence in
educational institutions is the underlying principle behind a
regulatory regime and the mechanism of selection of teachers is
so designed to achieve excellence in institutions, the matter may
stand on a completely different footing. [Para 46] [301-B-C]
3. The test accepted in *TMA Pai Foundation case, and
the balance between two objectives can well be considered in
the context of two categories of institutions; one imparting
education which is directly aimed at or dealing with preservation
and protection of the heritage, culture, script and special
characteristics of a religious or a linguistic minority; while the
second category of institutions could be those which are imparting
what is commonly known as secular education. When it comes
to the institutions in the former category, the teachers who believe
in the religious ideology or in the special characteristics of the
concerned minority would alone be able to imbibe in the students
admitted in such educational institutions, what the minorities
would like to preserve, profess and propagate. But, if the subjects
in the curriculum are purely secular in character, that, is to say,
subjects like Arithmetic, Algebra, Physics, Chemistry or
Geography, the intent must be to impart education availing the
best possible teachers. In the first category, maximum latitude
may be given to the managements of the concerned minority
institutions as they would normally be considered to be the best
judges of what would help them in protecting and preserving the
heritage, culture, script or such special features or characteristics
of the concerned minorities. However, when it comes to the
second category of institutions, the governing criteria must be to
see to it that the most conducive atmosphere is put in place where
the institution achieves excellence and imparts best possible
education. [Para 47] [301-D-H]
4. Regulations which will serve the interest of the students
so also regulations which will serve the interest of the teachers
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are of paramount importance in good administration; that
regulations in the interest of efficiency of teachers are necessary
for preserving harmony amongst the institutions; and that the
appointment of teachers is an important part in educational
institutions. It is quite natural that qualitatively better teachers
will ensure imparting of education of the highest standard and
will help in achieving excellence. The excellence of the instruction
provided by an institution would depend directly on the excellence
of the teaching staff and would in turn depend inter alia on the
quality of teachers. [Para 48] [302-A-C]
Ahmedabad St. Xavier's College Society and Another v.
State of Gujarat and Another (1974) 1 SCC 717 : [1975]
1 SCR 173 ; Frank Anthony Public School Employees'
Assoication v. Union of India and others (1986) 4 SCC
707 : [1987] 1 SCR 238 - followed.
5. Thus, if the intent is to achieve excellence in education,
would it be enough if the concerned educational institutions were
to employ teachers with minimum requisite qualifications in the
name of exercise of Right under Article 30 of the Constitution,
while better qualified teachers are available to impart education
in the second category of institutions. For example, if the
qualifying percentile index for a teacher to be appointed in an
educational institution, considering his educational qualifications,
experience and research, is required to be 50, and if teachers
possessing qualifications far greater and higher than this basic
index are available, will it be proper exercise for a minority
educational institution to select teachers with lower index
disregarding those who are better qualified? Will that subserve
pursuit of excellence in education? One can understand if under
the regulatory regime candidates who are otherwise less qualified
are being nominated in the minority educational institution and
the minority educational institution is forced to accept such less
meritorious candidates in preference to better qualified
candidates. In such cases, the minority educational institution
can certainly be within its rights to agitate the issue and claim a
right to choose better teachers. But if the candidates who are
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selected and nominated under the regulatory regime to impart
education which is purely secular in character, are better qualified,
would the minority institution be within its rights to reject such
nomination only in the name of exercise of a right of choice? The
choice so exercised would not be in pursuit of excellence. Can
such choice then be accepted? If the right u/Art. 30 is taken to
be absolute and unqualified, then certainly such choice must be
recognised and accepted. But, if the right has not been accepted
to be absolute and unqualified and the national interest must
always permeate and apply, the excellence and merit must be the
governing criteria. Any departure from the concept of merit and
excellence would not make a minority educational institution an
effective vehicle to achieve what has been contemplated in various
decisions of this Court. Further, if merit is not the sole and
governing criteria, the minority institutions may lag behind the
non-minority institutions rather than keep in step with them.
[Para 49] [302-D-H; 303-A-B]
6. If the minority institution has a better candidate available
than the one nominated under a regulatory regime, the institution
would certainly be within its rights to reject the nomination made
by the authorities but if the person nominated for imparting
education is otherwise better qualified and suitable, any rejection
of such nomination by the minority institution would never help
such institution in achieving excellence and as such, any such
rejection would not be within the true scope of the Right protected
under Article 30(1) of the Constitution. [Para 50] [303-E-F]
7. In terms of Section 4 of the West Bengal Madrasah
Service Commission Act, the Commission is to consist of a
Chairman and four Members. The Chairman of the Commission
has to be an eminent educationist having profound knowledge in
Islamic Culture and must be well versed in education with
teaching experience inter alia as a teacher of a University or as a
Principal of a college, for a period of not less than twelve years.
It is true that the latter part of Section 4(ii) speaks of an officer of
the State Government not below the rank of Joint Secretary who
could also be appointed as the Chairman of the Commission.
Considering the nature of duties that the Chairman is to
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discharge, even an officer of the State Government has to be a
person with profound knowledge in Islamic Culture. Apart from
the Chairman, there are four Members who are to be appointed
in terms of Section 4(iii) of the Commission Act. Out of these
four Members, one has to be an eminent educationist having
profound knowledge in Islamic Theology and Culture, while the
other two Members must have teaching experience inter alia as
a teacher of a University, or a Principal of a College for a period
of not less than ten years. The fourth member could be a noneducationist, but he must have held the position of eminence in
public life or in Legal or Administrative Service. Predominant
composition of the Commission is thus of educationists and two
of them have to be persons with profound knowledge in Islamic
Culture and Islamic Theology. [Para 52] [303-G-H; 304-A-D]
8. The provisions of the Commission Act are thus specially
designed for Madrasahs and Madrasah Education System in the
State. Rule 8 of the West Bengal Madrasah Service Commission
Recruitment (Selection and Recommendation of Persons for
Appointment and Transfer to the Posts of Teaching and NonTeaching Staff) Rules, 2010 stipulates fair and transparent process
of merit based selection and the statutory mechanism would
ensure that only those teachers would be selected who would be
best suited to impart education in Madrasah Education System.
The State Legislature has taken care to see that the composition
of the Commission would ensure compatability of the teachers
who would be selected to impart education in Madrasah Education
System, which is also emphasized in the Statement of Objects
and Reasons. [Para 52] [304-D-F]
9. It is true that the recommendations or nominations of
teachers made by the Commission are otherwise binding on the
Managing Committees of concerned Madrasahs, but, in terms of
second proviso to Section 10 of the Commission Act, if there be
any error, it is open to the Managing Committee of the concerned
Madrasah to bring it to the notice of the Commission for removal
of such error. The concept of 'error' as contemplated must also
include cases where the concerned Madrasah could appoint a
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better qualified teacher than the one nominated by the
Commission. If any such error is pointed out, the Commission
will certainly have to rectify and remove the error. The further
protection is afforded by Section 12 of the Commission Act, under
which the concerned Madrasah could be within its rights to refuse
to issue appointment letter to the candidate recommended by
the Commission if any better qualified candidate is otherwise
available with the managing committee of the concerned
Madrasah. Such refusal may also come within the expression
'any reasonable ground' as contemplated in Section 12(i) of the
Act. The legislature has thus taken due care that the interest of
a minority institution will always be taken care of by ensuring
that i) in normal circumstances, the best qualified and suitable
candidates will be nominated by the Commission; ii) and in case
there be any error on part of the Commission, the concerned
Managing Committee could not only point out the error which
would then be rectified by the Commission but the Managing
Committee may also be within its rights in terms of Section 12(i)
to refuse the nomination on a reasonable ground. [Para 53]
[304-F-H; 305-A-C]
10. The regime put in place by the State legislature thus
ensures that the Commission comprising of experts in the field
would screen the talent all across the State; will adopt a fair
selection procedure and select the best available talent purely
on merit basis; and even while nominating, the interest of the
minority institution will also be given due weightage and taken
care of. The statutory provisions thus seek to achieve 'excellence'
in education and also seek to promote the interest of the minority
institutions. The provisions satisfy the test as culled out in the
decision of this Court in *TMA Pai Foundation case. [Para 54]
[305-D]
11. Going by the principles laid down in the decision in
*TMA Pai Foundation case, the concerned provisions cannot,
therefore, be said to be transgressing the rights of the minority
institutions. The selection of the teachers and their nomination
by the Commission constituted under the provisions of the
Commission Act would satisfy the national interest as well as the
interest of the minority educational institutions and said provisions
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are not violative of the rights of the minority educational
institutions. Therefore, sections 8, 10, 11 and 12 of the
Commission Act are valid and constitutional. [Paras 55 and 57]
[305-E-F; 306-E]
12. All nominations made by the Commission in pursuance
of the provisions of the Commission Act are valid and operative.
However, if after the disposal of the matters by the High Court
any appointments are made by the concerned Madarshas, such
appointments of teachers shall be deemed to be valid for all
purposes. But the Commission shall hereafter be competent to
select and nominate teachers to various Madarshas in accordance
with the provisions of the Commission Act and the Rules framed
thereunder. [Para 58] [306-F-G]
*TMA Pai Foundation and others v. State of Karnataka
and others (2002) 8 SCC 481 : [2002] 3 Suppl. SCR
587 ; Re: The Kerala Education Bill 1957 [1959] SCR
995 ; Lily Kurian v. Sr. Lewina and Others (1979) 2
SCC 124 : [1979] 1 SCR 820; St. Stephen's College v.
University of Delhi (1992) 1 SCC 558 : [1991] 3 Suppl.
SCR 121;**P.A.Inamdar and others v. State of
Maharashtra and others (2005) 6 SCC 537 : [2005]
2 Suppl. SCR 603 - followed.
The Gandhi Faiz-e-am College, Shahjahanpur v.
University of Agra and Another (1975) 2 SCC 283
- relied on.
Sindhi Education Society and another v. Chief Secretary,
Government of NCT of Delhi and others (2010) 8 SCC
49 : [2010] 8 SCR 81 ; Chandana Das (Malakar) v.
State of West Bengal and others (2015) 12 SCC 140 ;
Brahmo Samaj Education Society v. State of West Bengal
(2004) 6 SCC 224 : [2204] 2 Suppl. SCR 214
- distinguished.
State of Kerala, etc v. Very Rev. Mother Provincial, etc
(1970) 2 SCC 417 : [1971] 1 SCR 734 ; Secretary,
Malankara Syrian Catholic v. T. Jose and others (2007)
1 SCC 386 : [2006] 9 Suppl. SCR 644 ; Rev. Sidhajbhai
Sabhai and Others v. State of Bombay and Another
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[1963] 3 SCR 837 ; Rev. Father W. Proost and Others.
v. the State of Bihar and Others AIR 1969 SC 465 ;
[1969] 2 SCR 73 ; D.A.V. College, etc. v. State of Punjab
and Others [1971] Suppl. SCR 688 ; All Saints High
School, Hyderabad and Others v. Government of
Andhra Pradesh and Others (1980) 2 SCC 478 : [1980]
2 SCR 924 ; Bihar State Madarasa Education Board,
Patna v. Madarasa Hanfia Arabic College, Jamalia and
others (1990) 1 SCC 428 : [1989] 2 Suppl. SCR 399 ;
Board of Secondary Education and Teachers Training
v. Jt. Director of Public Instructions, Sagar and others
(1998) 8 SCC 555 ; N. Ammad v. Manager, Emjay High
School and others (1998) 6 SCC 674 : [1998] 1 Suppl.
SCR 453 ; Kanya Junior High School, Bal Vidya
Mandir, Etah,U.P. v. U.P. Basic Shiksha Parishad,
Allahabd, U.P. and others (2006) 11 SCC 92 : [2006]
4 Suppl. SCR 813 - referred to.
Case Law Reference
[1971] 1 SCR 734
referred to
Para 13
[1975] 1 SCR 173
followed
Para 13
[2006] 9 Suppl. SCR 644
referred to
Para 13.1
[2010] 8 SCR 81
distinguished
Para 13.1
[2002] 3 Suppl. SCR 587
followed
Para 16
[1959] SCR 995
followed
Para 17
[1963] 3 SCR 837
referred to
Para 18
[1969] 2 SCR 73
referred to
Para 19
[1971] Suppl. SCR 688
referred to
Para 21
(1975) 2 SCC 283
relied on
Para 23
[1979] 1 SCR 820
followed
Para 24
[1980] 2 SCR 924
referred to
Para 25
[1987] 1 SCR 238
followed
Para 26
[1989] 2 Suppl. SCR 399
referred to
Para 27
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[1991] 3 Suppl. SCR 121
followed
Para 28
(1998) 8 SCC 555
referred to
Para 29.1
[1998] 1 Suppl. SCR 453
referred to
Para 29.2
[2004] 2 Suppl. SCR 214
referred to
Para 32
[2005] 2 Suppl. SCR 603
followed
Para 33
[2006] 4 Suppl. SCR 813
distinguished
Para 56
[2010] 8 SCR 81
distinguished
Para 56
(2015) 12 SCC 140
distinguished
Para 37
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5808
of 2017.
From the Judgment and Order dated 09.12.2015 of the High Court
at Calcutta in A.S.T. No. 192 of 2014.
With
Civil Appeal Nos. 6098, 5809, 5826, 5817, 5814 of 2017, Contempt
Petition (C) Nos. 583, 846 of 2016, & Contempt Petition (C) Nos. 670,
669, 828 of 2017 in S.L.P.(C) No. 6661 of 2016 and Contempt Petition
(C) Nos. 1509, 1798 of 2017 & Contempt Petition (C) Nos. 937, 938,
1219, 1274, 1669, 1921-1922 of 2018 in C.A. No. 5808 of 2017, W.P.(C)
No. 723 of 2016, W.P. (C) No. 629 of 2017.
Jayant Bhushan, Mohan Parasaran, Siddharth Luthra, Y. S. Narula,
Salman Khurshid, Kalyan Bandopadhyay, Jaideep Gupta, Huzefa Ahmadi,
Sr. Advs., Zoheb Hossain, Mrs. Adeeba Mujahid, Ashwin Kumar D.S.,
Ms. Aditi Dani, Ketan Paul, Shahan Ulla, Vivek Gurnani, Ms. Sonal
Mashankar, Ali Choudhary, Azeem Kalebudde, Atarup Banerjee, Abu
Sohel, Ms. Azra Rahman, Arpit Shukla, Anindo Mukherjee, Chanchal
Kumar Ganguli, Mrs. Sarla Chandra, Khairul Alam, Rameshwar Prasad
Goyal, Pijush K. Roy, Mrs. Kakali Roy, Rajan K. Chourasia, Siddharth
Dave, M. R. Shamshad, Aditya Samaddar, Ms. Sarah Haque, Subhashish
Bhowmick, Adv. Ms. G. Goyal, Adv. Mr. Dipak Kumar Jena, Adv. Ms.
Minakshi Ghosh, Jalabhar Das, Kumar Shourish, Abhijit Sengupta,
Dibyadyuti Banerjee, Kumar Neeraj, B. P. Yadav, Ranjan Mukherjee,
Kunal Chatterji, Ms. Anita Kanungo, Dipak Kumar Jena, Advs. for the
appearing parties.
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The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.
1. These appeals arise out of the Judgment and Order dated
09.12.2015 passed by the Division Bench of the High Court1 dismissing
A.S.T. No.192 of 2014 and other connected matters and thereby affirming
the decision of the Single Judge of the High Court passed on 12.03.2014
in Writ Petition No.20650 (W) of 2013 which in turn had found Sections
8, 10, 11 and 12 of the West Bengal Madrasah Service Commission Act,
2008 ("the Commission Act", for short) to be ultra vires.
2. The aforementioned Writ Petition No.20650(W) of 2013 was
filed by the Managing Committee of Contai Rahmania High Madrasah
challenging validity of Sections 8, 10, 11 and 12 of the Commission Act
submitting, inter alia, that by virtue of the provisions of the Commission
Act, the process of appointment of teachers in an aided Madrasah, which
was recognised as a minority institution, was taken over and entrusted
to the Commission appointed under Section 4 of the Commission Act;
and that the Commission was empowered under the provisions of the
Commission Act to make recommendations which would be binding on
the Managing Committee of an aided Madrasah. It was submitted that
the provisions of the Commission Act transgressed upon the rights of a
minority institution of choosing its own teachers. The submission was
accepted by the Single Judge of the High Court and the Writ Petition
was allowed. Aggrieved, some of the candidates, including the Appellant
herein, whose names were recommended by the Commission to be
appointed as teachers in aided Madrasahs, filed appeal being A.S.T. No.
192 of 2014 before the Division Bench of the High Court. C.A.N. No.
3078 of 2014 was filed by the Secretary, West Bengal Madrasah
Service Commission while M.A.T. No. 473 of 2014 was filed by State
of West Bengal challenging the very same decision of the Single Judge.
All the appeals were dismissed by the Division Bench while affirming
the view taken by the Single Judge.
3. The decisions of the Single Judge and the Division Bench have
given rise to the present set of Appeals wherein number of Intervention
Applications have also been filed.
1 The High Court of Judicature at Calcutta
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STATUTORY PROVISIONS
4. The West Bengal Board of Madrasah Education Act, 1994
was enacted to establish a Board of Madrasah Education in West Bengal
and to provide for matters connected therewith or incidental thereto.
The expressions "Madrasah", "Madrasah Education", "Managing
Committee" and "Senior Madrasah" are defined in Sections 2(f), (g),
(h) and (p) as under:-
"2(f) "Madrasah" means an educational institution imparting
instruction in Madrasah Education;
(g) "Madrasah Education" means a system of education in which
instruction is imparted in Arabic, Islamic history and culture, and
theology, and includes-
(i) High Madrasah Education System which, in addition to
covering Arabic language and Islamic history and culture,
imparts general education including primary education with a
view to qualifying students for admission to a certificate,
diploma or degree course instituted by a University or by a
Government or by any statutory authority, and includes such
other type of education as the State Government may, in
consultation with the Board, specify;
(ii) Senior Madrasah Education System which imparts
instruction in Arabic language and literature, Islamic theology,
history, culture and jurisprudence and some general education
with a view to qualifying students for a certificate, diploma or
degree of the Board or a University or a Government or any
other statutory authority;
(h) "Managing Committee" used in reference to an Institution
means the person or the body of persons for the time being
entrusted with the management of the affairs of the Institution;
... ... ...
(p) "Senior Madrasah" means a Madrasah where the Senior
Madrasah Education System is followed."
4.1 Chapter 2 of the Act inter alia, deals with establishment and
composition of the Board while Section 18 deals with constitution of
various Committees. Section 19 then deals with functions of the
Committees as under:-
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"19. Functions of Committee.-(1) It shall be the duty of the
Recognition Committee to advise the Board on all matters
concerning recognition of Institutions.
(2) It shall be the duty of the Syllabus Committee to advise the
Board on all matters relating to the syllabus, courses of studies to
be followed and the books to be studied in recognised Institutions
and for examinations instituted by the Board.
(3) It shall be the duty of the Examinations Committee to advise
the Board on -
(a) matters relating to selection of paper setters, moderators,
tabulators, examiners, invigilators, supervisors and others to
be employed in connection with examinations instituted by the
Board and the rates of remuneration to be paid to them;
(b) the fees to be paid by candidates for such examinations;
and
(c) any other matter relating to such examinations which may
be referred to it by the Board for advice
(4) It shall be the duty of the Finance Committee to prepare the
budget of the Board and to advise the Board on such matters
relating to finance as may be referred to it by the Board for advice.
(5) (a) All appeals by the members of the teaching and nonteaching staff against the decisions of the Managing Committees
of the recognised Institutions shall be heard and decided by the
Appeal Committee.
(b) The decisions of the Appeal Committee under clause (a)
shall be final and no suit or proceeding shall lie in any Civil or
Criminal Court in respect of any matter which has been or
may be referred to, or has been decided by, the Appeal
Committee.
(c) Any other Committee or Committees that may be constituted
under clause (f) of sub-section (1) of section 18 shall have
such powers or functions as the Board may confer or impose
on such Committee or Committees."
4.2 Section 20 deals with functions of the Board as under:-
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20. Functions of the Board. - (1) It shall be the duty of the
Board to advise the State Government on all matters relating to
Madrasah Education referred to it by the State Government.
(2) Subject to any general or special orders of the State
government, the provisions of this Act and any rules made
thereunder, the Board shall have generally the power to direct,
supervise and control Madrasah Education and in particular, the
power-
(a) to grant or refuse recognition to Madrasah and to withdraw
such recognition if it thinks fit and necessary, after considering
the recommendations of the Recognition Committee in
accordance with such regulations as might be made in this
behalf :
(b) to maintain a register of recognized Madrasahs;
(c) to provide by regulations, after considering the
recommendations of the Syllabus Committee, if any, the
curriculum, syllabus, courses or studies to be followed and books
to be studied in recognized Madrasahs for examinations
instituted by the Board;
(d) to undertake, if necessary, with the approval of the State
Government, the preparation, publication or sale of text-books
and other books for use in recognised Madrasahs;
(e) to maintain and publish list of holidays for recognised
Madrasahs, list of books approved for use in recognized
Madrasahs and for examinations instituted by the Board and
to remove the name of any such book from any such list;
(ee) to maintain, print and issue from time to time, the
Registration Certificate, Admit Card, Marksheet, Migration
Certificate, Certificates and such other papers as it may thinks
fit;
(f) To institute various Madrasah Examinations and such other
similar examinations as it may think fit and to make regulations
in this behalf;
(g) to set down the conditions to be fulfilled by the candidates
presenting themselves for examinations instituted by the Board;
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(h) to provide by regulations after considering the
recommendations of the Examinations Committee, if any, the
rates of remuneration' to be paid to the paper-setters,
moderators, tabulators, examiners. invigilators, supervisors and
others employed in connection with the examinations instituted
by the Board, and, the fees to be paid by candidates for such
examinations with the approval of the State Government;
(i) to grant or refuse permission to candidates to appear at
examinations instituted by the Board and to withdraw such
permission if it thinks fit in accordance with such regulations
as may be made in this behalf;
(j) to provide by regulations the procedure for filling and disposal
of appeals by the members of the teaching and non-teaching
staff against the decisions of the Managing Committees of
recognized Madrasahs;
(k) to administer the West Bengal Madrasah Education Board
Fund;
(l) to institute and administer such Provident Funds as may be
prescribed;
(m) to make regulations relating to the conduct, discipline and
appeal in respect of the members of the staff ;
(mm) to make regulations relating to conduct and discipline
in respect of teachers and non-teaching staff of the
recognised Institutions under the Board;
(mmm) to make regulations determining the qualification
for, and the method of, recruitment of teachers in class I to
class IV of the Senior Madrasah;
(n) to perform such other functions as may be assigned to it by
the State Government.
(3) Subject to the provisions of sub-section (2). the Board shall
have power to make regulations in respect of any matter for
the proper exercise of its powers under this Act.
Provided that any decision or action taken or any order made
by the Board in the discharge of its functions under this Act
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shall not be invalid merely on the ground that no regulation has
been made under this sub-section.
(4) No regulation shall be valid unless it is approved by the
State Government and the State Government may, in
accordance with such approval, make such additions, alterations
or modifications therein as it thinks fit:
Provided that before making any such addition, alteration or
modification, the State Government shall give the Board an
opportunity to express its views thereon within such period,
not exceeding one month, as may be specified by the State
Government.
(5) All regulations approved by the State Government shall be
published in the Official Gazette."
5. The West Bengal Minorities' Commission Act, 1996 was enacted
to constitute a Minorities Commission to study and suggest additional
social, economic, educational and cultural requirements of religious and
linguistic minorities of West Bengal with a view to equipping them to
preserve secular traditions of West Bengal and to promote national
integration. Section 3 deals with Constitution of the West Bengal
Minorities' Commission and sub Sections (1) and (3) of Section 4 are as
under:-
"4. Functions of the Commission.- (1) The Commission shall
perform the following functions:-
(a) evaluate the progress of the development of minorities of West
Bengal and review implementation of the policies and. programme
of the State Government;
(b) monitor the working of the safeguards provided in the
Constitution and in laws enacted by Parliament or the State
Legislature;
(c) make recommendations for the effective enforcement and
implementation of safeguards for the protection of the interests
of minorities provided by the Central Government or the State
Government;
(d) look into specific complaints regarding deprivation of social,
economic, educational, cultural and linguistic rights and safeguards
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of the minorities and take up such matters with the-appropriate
authorities;
(e) recommend to the State Government to accord minority status
to religious, linguistic and ethnic groups, provided such groups do
not enjoy any constitutional or statutory benefits or status;
(f) cause studies to be undertaken into problems arising out of
any discrimination against minorities and recommend measures
for their removal;
(g) conduct studies, research and analysis on the issues relating
to socio-economic and educational development of minorities;
(h) make annual report to the State Government on any matter
pertaining to any of the functions of the Commission under this
section.
...
...
(3) The advice of the Commission and, especially, the findings of
the Commission concerning deprivation of any right of the minority
or any infringement of any well-being of the minority by omission
or commission, shall ordinarily be binding upon the State
Government."
6. The West Bengal School Service Commission Act, 1997 ("1997
Act", for short) was enacted to provide for the constitution of Regional
School Service Commissions and a Central School Service Commission
in the State and for matters connected therewith or incidental thereto.
The definitions of "School" and "Teacher" in Section 2(n) and (p) are as
under:-
"(n) "school" means a recognized non-Government aided -
(i) secondary school, or educational institution, or part or
department of such school or institution, imparting instruction in a
secondary education or
(ii) higher Secondary school, or educational institution (other than
a college), or part or department of such school or institution,
imparting instruction in higher secondary education, or
and includes a sponsored school.
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Explanation I -"Recognized" with its grammatical variations,
used with reference to a school, shall mean -
(a) recognized or deemed to have been recognized under the West
Bengal Board of Secondary Education Act, 1963 or
(b) recognized under the West Bengal Council of Higher Secondary
Education Act, 1975,
Explanation II - "Aided" with its grammatical variations, used
with reference to a school, shall mean aided by the State
Government in the shape of financial assistance towards the basic
pay of the teachers of that school.
Explanation III - "Basic pay" shall mean the monthly pay of a
teacher of a school which corresponds to a stage in the timescale of pay of the post, held by the teacher in that school.
Explanation IV - "Secondary Education" shall have the same
meaning as in clause (1) of section 2 of the West Bengal Board of
Secondary Education Act, 1963.
Explanation V - "Higher Secondary Education" shall have the
same meaning as in clause (d) of section 2 of the West Bengal
Council of Higher Secondary Education Act, 1975.
Explanation VI - "Sponsored School" shall mean a school
declared as a sponsored school by the State Government by
notification.
(p) "Teacher" means an Assistant Teacher or any other person,
holding a teaching post of a school and recognized as such by the
Board or the Council or the Board of Madrasah, as the case may
be, and includes the Headmaster or the Headmistress 2(but shall
not include the Assistant Headmaster or the Assistant Headmistress
or the Teacher holding a post against short-term vacancy caused
by deputation, leave or lien)."
6.1 Section 3 deals with constitution of the Commission and
Regional Commissions. Section 4(4) dealing with composition of
Chairman is as under:
2 The words within brackets were inserted by the West Bengal School Service Commission
 (Second Amendment) Act, 2001.
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"(4) (a) The office of the Chairman shall be whole-time; the other
members shall be honorary.
(b) The Chairman and other members shall hold office for a term
of four years 3[but in the case of ex officio member such term
shall be one year]:
(c) Subject to the foregoing provisions of this sub-section, the
other terms and conditions of service of the Chairman and other
members shall be such as may be prescribed."
6.2 Sections 7 and 9 are as under:-
"7. Functions of Regional Commission. - Notwithstanding
anything contained in any other law for the time being in force or
in any contract, custom or usage to the contrary, it shall be the
duty of the Regional Commission to recommend persons for
appointment to the posts of Teachers or non-teaching staff in school
within its territorial jurisdiction under he supervision and control
of the Central Commission on the basis of the result of the State
Level Selection Test conducted by the Central Commission.
9. Effect of recommendation of Commission - (1)
Notwithstanding anything contained in any other law for the time
being in force or in any contract, custom or usage to the contrary,
appointments to the posts of Teachers and non-teaching staff in
school shall be made by the Board or the ad-hoc committee or
the administrator of the Board on the recommendation of the
Regional Commission having jurisdiction.
(2) Any appointment of a Teacher or a non-teaching staff made
on or after the commencement of this Act in contravention of the
provisions of this Act shall be invalid and shall have no effect and
the Teacher or the non-teaching staff so appointed shall not be a
Teacher or a non-teaching staff within the meaning of clause (p)
or clause (ia) of section 2, as the case may be."
6.3 Sub-sections (a) and (b) of Section 15, however, stipulated as
under:
"15. Act not to apply in relation to certain schools:-
The provisions of this Act shall not apply to3 Words ins. By W.B. Act 5 of 2001.
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(a) a school established and administered by a minority, whether
based on religion or language, or
(b) a school under any trust, established and administered by a
minority, whether based on religion or language, or ... ... ... "
7. By notification issued on 12.10.2007, Government of West
Bengal, Minorities Development and Welfare and Madrasah Education
Department declared and granted to all recognised and aided Madrasahs
under the control of the Government the status of "Minority Educational
Institutions".