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       REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2858 OF 2007

Chandana Das …Appellant

Versus

State of West Bengal & Ors. …Respondents

WITH

CIVIL APPEAL NO.2859 OF 2007

Sukhbinder Kaur …Appellant

Versus

State of West Bengal & Ors. …Respondents

J U D G M E N T

T.S. THAKUR, J.

1. These  appeals  arise  out  of  an  order  dated  23rd

September, 2004 passed by a Division Bench of the High

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Court  of  Calcutta  whereby  CANs  No.3863/2004  and

3861/2004 filed by the respondent-State of West Bengal and

others have been allowed, order dated 18th December, 2003

passed by a Single Bench of the High Court set aside and

Writ  Petitions  No.16256  and  16255  of  2003  filed  by  the

appellants herein dismissed.

2. The appellants, it appears, were appointed as teachers

on temporary basis in what is known as Khalsa Girls High

School,  Puddopukur  Road,  Bhowanipore,  Calcutta.  Their

appointment  did  not,  however, meet  the  approval  of  the

District 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

(the Rules) (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

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Petitions No.16256 and 16255 of 2003 which were allowed

by a learned Single Judge of the High Court by his order

dated 29th January, 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 28th July,

1999 and release  the  arrears  of  salary  and other  service

benefits in their favour with effect from the said date.   

4. Aggrieved by the Judgment and Order of the learned

Single Judge, the State of West Bengal, Director of School

Education and District  Inspector  of  Schools preferred CAN

Nos.3861  of  2004  and  3863  of  2004  against  the  order

passed by the Single Bench which appeals were allowed and

disposed of by a Division Bench of that Court by a common

order dated 23rd September, 2004. The High Court held that

since the Institution in which the appellants were appointed

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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.  The Division Bench further held that

the appellants having been appointed beyond the sanctioned

staff strength at the relevant point of time and de hors the

rules could not claim any approval in their favour.  The Court

noted  that  directions  issued  by  the  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

employees-writ petitioners to claim any such status on its

behalf.  The Division Bench further took the view that once a

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minority community applies for a Special Constitution under

Sub-Rule III 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.

5. The  short  question  that  falls  for  determination  is

whether  Khalsa  Girls  High  School,  Puddopukur  Road,

Calcutta  is  a  Minority  Institution,  if  so,  whether  the

Institution’s right to select  and appoint teachers is in any

way affected by the provisions of the Rules of Management

of  Recognised  Non-Government  Institutions  (Aided  and

Unaided),  1969  framed  under  the  provisions  of  the  West

Bengal Board of Secondary Education Act, 1963.

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6. The  respondent-State  contends  that  respondent

No.4-Institution  has  not  been  recognised  as  a  Minority

Institution  nor  was  the  minority  status  claimed  by  the

Institution when it applied for grant of a Special Constitution

under  Rule  33  of  the  Rules  mentioned  above.   In  the

absence of a proper recognition of the minority status of the

Institution,  it  is  governed  by  the  rules  including  Rule  28

which  regulates  the  appointment  of  teachers  in  the

Institution. The appointment of the appellants in the present

appeals being de hors the said procedure was not entitled to

any approval or regularisation by the authorities concerned,

argues the State.

7. The Institution’s case, on the other hand, is that the

same  was  and  continues  to  be  a  linguistic  minority

institution from its inception. The affidavit filed on behalf of

the Institution traces the history behind the establishment of

the  institution  for  the  benefit  of  Punjabi  speaking  Sikhs

settled  in  Calcutta  and other  parts  of  West  Bengal.   The

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affidavit  states  that  on  19th April,  1976  a  detailed

Memorandum was sent by institution to the Secretary, West

Bengal, Board of Secondary Education asking for approval of

the Special Constitution for the school in terms of Rule 33 of

the Rules mentioned above. That prayer was according to

the Institution made only because the school was a Minority

Educational  Institution.  The  affidavit  also  relies  upon

recognition  of  the  minority  status  of  the  school  by  West

Bengal Minority Commission in terms of its order dated 6th

October, 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

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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

appointment of teachers in minority Institutions, therefore,

does not apply in the present case.   

8. The appellants largely depend upon the fact that the

Institution  is  a  minority  Institution  entitled  to  appoint  its

own teachers  de hors the procedure that  is  applicable  to

other  institutes  governed  by  the  Rules.  The  historical

backdrop  in  which  the  respondent-school  came  to  be

established is not disputed before us nor is it disputed that

Punjabi speaking Sikh community is a linguistic minority not

only in the State of West Bengal but in the entire country.

So long as these two essential aspects are beyond the pale

of any controversy, we see no real reason for holding that an

Institution established in the backdrop set out in the counter

affidavit by a community that is admittedly a religious and

linguistic minority both nationally and in the State of West

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Bengal  should  be  denied  the  status  of  being  a  minority

Institution. The State’s version that the institution had never

claimed the minority status is not borne out from the record.

On the contrary a representation dated 19th April, 1976 filed

by the Institution before the Secretary, West Bengal Board

of Secondary Education specifically prayed for recognition of

its  minority  status.  The  representation  sets  out  the

circumstances in which the institution was established by the

Sikh  Community  for  the  benefit  of  students  of  that

community with the support of the Board of Management of

Bara Sikh Sangat, Sri Guru Singh Sabha and Gurdwara Sant

Rutia.   In  conclusion,  the  representation  prayed  for  the

following relief:

“In  the  circumstances  stated  above  it  is  humbly requested that under Rule 33 of the Rules framed and approved by the Government of West Bengal for the  administration  of  aided  recognised  institutions our  Institution  may  be  declared  as  a  minority community Institution and a special constitution for the  same may  kindly  be  approved  –  the  draft  of which will be submitted soon.”      

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9. In  response  to  the  representation  the  Institution

received from the Secretary of the Board a communication

dated 3rd October, 1985 stating that  the permission  for  a

special constitution granted in terms of Board’s letter dated

7th June, 1962 will continue until further orders and asking

the  institution  to  submit  an  election  programme  for

completion of re-constitution of the Management Committee

within  a  period  of  six  months.   The  Special  Constitution

referred to in the representation and the order passed by

the Secretary was obviously referable to Rule 8 of the Rules

mentioned above.  Rule 8(3) which deal with the power of

the Executive Committee of the Board to approve a Special

Constitution may at this stage be extracted :

“8(3)  Notwithstanding  anything  contained  in  these rules, the Executive Committee shall have the power to approve, on the application of any Institution or class 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

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representation of the members of the teaching and the non-teaching staff,  guardians and the member nominated by the Director or an officer authorised by 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.”        

10. A  simple  reading  of  the  above  would  show  that  a

Special Constitution is not envisaged for any particular class

of institutes. Such Special Constitution can be approved on

the application of any Institution or class of institutions. It is

immaterial whether the institution is a minority institution or

otherwise.  The  argument  that  approval  of  a  Special

Constitution is by itself indicative of the institution giving up

its claim of being a minority institution has not appealed to

us.  The scheme of the Rules in particular Rule 8(3) (supra)

does  not  suggest  either  an  implied  recognition  of  an

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institution as a minority Institution or the surrender of any

such  claim  just  because  a  Special  Constitution  has  been

approved for it  by the Executive Committee of the Board.

This is made clear by Rule 33 of the Rules which reserves in

favour of the State Government the power to frame rules for

institutes governed by the provisions of Articles 26 and 30 of

the Constitution of India. Rule 33 reads:

“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. The above clearly shows that the State Government is

competent to frame rules for minority Institutes governed by

Articles 26 and 30 of the Constitution on the application of

any such Institute or class of Institutes.  Such rules when

framed  regulate  composition,  powers,  functions  of  the

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Managing Committee or Committees of such institution or

class  of  Institutions.  The  State  Government  has  not

admittedly exercised the rule making powers reserved in its

favour.  It follows that once an institute is recognised as a

minority  institution,  its  minority  status  would  entitle  the

managing committee of the institution to make appointment

of teachers’ against vacancies within its sanctioned strength.

The power to make such appointments is  enjoyed by the

Institutes by reason of  the constitutional  protection which

such institutions enjoy. The legal position on the subject is

fairly well settled by a long line of decisions of this Court.

We may refer to only some of those decisions at this stage.

But before we refer to the decisions on the subject, we may

as  well  deal  with  the  argument,  that  grant  of  a  special

constitution to a minority institution will be a contradiction in

terms, because by granting a special constitution under Rule

8(3), the Executive Committee acquires the power in terms

of  the  proviso  under  the  said  proviso  to  appoint  an

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administrator or an ad hoc committee, which will have the

effect of abridging the constitutionally guaranteed rights of

the minority to administer the institution. That argument is

fallacious for reasons more than one. Firstly, because under

the  proviso  the  Executive  Committee  may  amend  or

withdraw the special constitution if it is of the opinion that

the institution has not been functioning properly. That power

when exercised may no doubt deny to the institution the

advantage, if any, enjoyed by it under such a constitution;

but the minority status would remain unaffected by any such

amendment or withdrawal. Secondly, because the power to

appoint  an administrator or  an ad hoc committee may or

may not be exercised even when the special constitution is

either withdrawn or amended.  The former does not follow

as an inexorable consequence of the latter.  Thirdly, because

exercise  of  the  power  to  appoint  an  administrator  for  a

limited period, is no infraction of the right of the minority to

administer  the  institution  as  the  right  to  administer

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guaranteed under the constitution does not include the right

to maladminister to borrow the expression used by Khanna

J. in  The Ahmedabad St. Xavier’s College Society and

Anr.  v.  State of Gujarat and Anr.  (1974) 1 SCC 717

where His Lordship observed:

“90. We may now deal with the scope and ambit of the right guaranteed by clause (1) of Article 30. The clause confers a right on all minorities, whether they are based on religion or language, to establish and administer  educational  instructions  of  their  choice. The  right  con  ferred  by  the  clause  is  in  absolute terms and is  not  subject  to restrictions,  as in the case  of  rights  conferred  by  Article  19  of  the Constitution.  The  right  of  the  minorities  to administer  educational  institutions  does  not, however,  prevent  the  making  of  reasonable regulations  in  respect  of  those  institutions.  The regulations  have  necessarily  to  be  made  in  the interest of the institution as a minority educational institution. They have to be so designed as to make it an effective vehicle for imparting education.  The right  to  administer  educational  institutions  can plainly  not  include  the  right  to  maladminister. Regulations can be made to prevent the housing of an educational institution in unhealthy surroundings as also to prevent the setting up or continuation of an educational institution without qualified teachers. The State  can prescribe  regulations  to  ensure  the excellence  of  the  institution.  Prescription  of standards  for  educational  institutions  does  not militate  against  the  right  of  the  minority  to administer the institutions. Regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed. Such regulations are

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not restrictions on the substance of the right which is guaranteed:  they  secure  the  proper  functioning  of the  institution,  in  matters  educational  [see observations of Shah, J. in Rev. Sidhajbhai Sabhai p. 850]. Further as observed by Hidyatullah, C.J. in the case of  Very Rev.  Mother  Provincial the  standards concern  the  body  politic  and  are  dictated  by considerations  of  the  advancement  of  the  country and  its  people.  Therefore,  if  universities  establish syllabi  for  examinations  they  must  be  followed, subject,  however,  to  special  subjects  which  the institutions  may  seek  to  teach,  and  to  a  certain extent the State may also regulate the conditions of employment of teachers and the health and hygiene of  students.  Such  regulations  do not  bear  directly upon  management  as  such  although  they  may indirectly  affect  it.  Yet  the  right  of  the  State  to regulate education, educational standards and allied matters cannot be denied. The minority institutions cannot  be  allowed  to  fall  below  the  standards  of excellence  expected  of  educational  institutions,  or under the guise of exclusive right of management, to decline  to  follow  the  general  pattern.  While  the management  must  be  left  to  them,  they  may  be compelled to keep in step with others.”  

                                              (emphasis supplied)

12. In  St. Xavier’s  case (supra) a Constitution Bench of

this Court was examining the scope and ambit of the right of

the  minority  whether  based  on  religion  or  language  to

establish  and  administer  educational  institutions  under

clause  (1)  of  Article  30 of  the  Constitution.  The question

arose  in  the  context  of  certain  provisions  in  the  Gujarat

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University Act, 1949 being applied to linguistic or religious

minorities. This Court by a majority decision declared that

the  right  of  the  minorities  to  administer  educational

institutions  does  not  prevent  the  making  of  reasonable

regulations in respect of those institutions. Such regulations

can be made to prevent housing of an educational institution

in unhealthy surroundings or to prevent the setting up or

continuation of  an educational  institution without qualified

teachers.  Prescription  of  standards  for  educational

institutions was not violative of the right of the minority to

administer the institutions declared this Court.  Regulations

made in the interests of efficiency of instructions, discipline,

health, sanitation, morality public order and the like can be

made and enforced against minority institutions also. Such

regulations do not restrict the substance of the right which is

guaranteed  but  only  secure  a  proper  functioning  of  the

institution  in  matters  of  education.  On  a  comprehensive

review of the earlier decisions of this Court, Khanna, J. in his

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concurring  judgment  recognised  the  right  of  all  minority

institutions to appoint  qualified teachers of  its  choice  and

also to exercise disciplinary control over such teachers and

other members of the staff of the institution. The following

passage is, in this regard, apposite:

“103. Another conclusion which follows from what has  been  discussed  above  is  that  a  law  which interferes  with  a  minority’s  choice  of  qualified teachers or its disciplinary control over teachers and other members of the staff of the institution is void as being violative of Article 30(1). It is, of course, permissible  for  the  State  and  its  educational authorities  to  prescribe  the  qualifications  of teachers,  but  once  the  teachers  possessing  the requisite  qualifications  are  selected  by  the minorities  for  their  educational  institutions,  the State would have no right to veto the selection of those teachers.  The selection and appointment of teachers for an educational institution is one of the essential  ingredients  of  the  right  to  manage  an educational institution and the minorities can plainly be  not  denied  such  right  of  selection  and appointment without infringing Article 30(1)….”  

13. That the right to administer does not include the right

to  maladminister  a  minority  institution  was  reiterated  by

another Constitution Bench of this Court in  St. Stephen’s

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College v. University of Delhi (1992) 1 SCC 558 where

this Court said:

“The  need  for  a  detailed  study  on  this  aspect  is indeed  not  necessary.  The  right  to  minorities whether  religious  or  linguistic,  to  administer educational institutions and the power of the State to  regulate  academic  matters  and  management  is now fairly well settled. The right to administer does not  include  the  right  to maladminister.  The  State being the controlling authority has right and duty to regulate all academic matters. Regulations which will serve the interests of the students and teachers, arid to preserve the uniformity in standards of education among the affiliated institutions could be made. The minority institutions can not claim immunity against such general pattern and standard or against general laws such as laws relating to law and order, health, hygiene, labour relations, social welfare legislations, contracts,  torts,  etc.  which  are  applicable  to  all communities. So long as the basic right of minorities to manage educational institution is not taken away, the  State  is  competent  to  make  regulatory legislation. Regulations, however, shall not have the effect of depriving the right of minorities to educate their  children  in  their  own  institution.  That  is  a privilege which is implied in the light conferred by Article 30(1).”

14. In  T.M.A  Pai  Foundation  v.  State  of  Karnataka

(2002)  8  SCC  481,  this  Court  had  another  occasion  to

examine the right of the linguistic and minority institutions

to establish and administer their institutions. In the context

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of grant of aid to such institutions this Court held that grant

of  aid  cannot  be  made  subject  to  conditions  that  may

impinge upon the right of the linguistic minority institution to

establish and administer its institution. The conditions that

could  normally  be  permitted  to  be  imposed  for  minority

educational institution receiving grant must be related to the

proper utilisation of the grant and fulfilment of the objectives

of the grant. This Court said:

“143. This  means  that  the  right  under Article 30(1) implies that any grant that is given by the  State  to  the minority institution cannot  have such conditions attached to it, which will in any way dilute  or  abridge  the  rights  of the minority institution to  establish  and  administer that institution. The conditions that can normally be permitted  to  be  imposed,  on  the  educational institutions receiving the grant, must be related to the proper utilization of the grant and fulfilment of the  objectives  of  the  grant.  Any  such  secular conditions so laid, such as a proper audit with regard to  the  utilization  of  the  funds  and  the  manner  in which the funds are to be utilized, will be applicable and  would  not  dilute  the  minority  status  of  the educational  institutions.  Such  conditions  would  be valid if they are also imposed on other educational institutions receiving the grant.

144. It cannot be argued that no conditions can be imposed  while  giving  aid  to  a minority institution. Whether it is an institution run by the majority or

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organisation  and  development  of  school  education  and

matters incidental thereto must operate within its limitation.

In cases where the minority status was duly accepted and

declared  by  the  judgment  of  the  High  Court,  it  was  not

permissible for the Government to stop grant-in-aid on the

ground that  the  institution  had failed  to  comply  with  the

conditions  or  restrictions  otherwise  impermissible  in  law

especially in the matter of appointment of teachers of such

minority  institution where the institution  had satisfied  the

laid  down  criteria  and/or  eligibility  conditions  for  such

appointments. This Court held that the right to appoint those

who  possess  the  eligibility  and  qualification  prescribed

cannot be curtailed.  The Court observed:

“112. Every  linguistic  minority  may  have  its  own social,  economic  and  cultural  limitations.  It  has  a constitutional  right  to  conserve  such  culture  and language.  Thus,  it  would  have  a  right  to  choose teachers,  who  possess  the  eligibility  and qualifications,  as  provided,  without  really  being impressed  by  the  fact  of  their  religion  and community. Its own limitations may not permit, for cultural, economic or other good reasons, to induct teachers from a particular class or community. The

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direction,  as  contemplated  under  Rule  64(1)(b), could  be enforced  against  the  general  or  majority category  of  the  government-aided  schools  but,  it may not  be  appropriate  to  enforce  such  condition against linguistic minority schools. This may amount to interference with their right of choice and, at the same time,  may dilute their  character  of  linguistic minority. It would be impermissible in law to bring such  actions  under  the  cover  of  equality  which  in fact,  would  diminish  the  very  essence  of  their character  or  status.  Linguistic  and  cultural compatibility can be legitimately claimed as one of the  desirable  features  of  a  linguistic  minority  in relation  to  selection  of  eligible  and  qualified teachers.”

16. 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

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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  No.4-institution  is  held  to  be  a  minority

institution entitled to the protection of 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.

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17. The view taken by the Division Bench of the High Court

that appointments of the appellants were de hors 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. Rule 28 reads as under:

“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;

(ia)  to  appoint,  in  accordance  with  the  directions given by the Director or in his behalf, teachers and other  employees  against  the  leave/lien/deputation vacancies,  if  available,  within  the  sanctioned strength;

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(ib) to appoint,  in  accordance with the directions given by the Director or  any officer  authorised by him in his behalf, the Assistant Headmaster or the Assistant  Headmistress  against  the  vacancy  within the sanctioned strength from among the approved teachers.  

(ic)  to  appoint,  in  accordance  with  the  directions given by the Director or  any officer  authorised by him in his behalf, part time teachers on such terms and  conditions  as  may  be  specified  by  the Government from time to time for a period of one year  with  a  provision  of  renewal  with  the  break, against the posts of part time teacher created for the Higher  Secondary  Section  of  Higher  Secondary Schools.   

(ii)  to  appoint  non-teaching  employees  on permanent or temporary basis against permanent or temporary vacancies, if  and when available,  within the sanctioned strength of non-teaching employees and  on  approval  by  the  Directors  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;

(iii)  to  extend,  if  it  thinks  fit,  the  service  of  any teacher or other employee, who was in service on the 31st December,  1985,  but  did  not  opt  for  the revised scales of pay introduced with effect from the 1st January, 1986, or having opted for such revised scale of pay, subsequently withdraws such option in terms of any order of the State Government in this behalf, beyond the age of 60 years, being the age of superannuation,  on  a  year  to  year  basis,  but  not beyond the age of 65 years;

Provided that the teacher or the employee concerned is  physically  fit  and  mentally  alert  and  that  the approval for such extensions shall be sought for from

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the Director or any other Officer authorized by him, within a period of 15 days from the date of decision of the Committee;

Provided further that the teacher or other employee, who withdraws his option for the revised scales of pay  introduced  with  effects  from  the  1st January, 1986, in terms of any order of the State Government in this behalf, shall be deemed to have not opted for the said revised scales of pay;

Provided  also  that  not  with  withstanding  anything contained in this clause, such teacher or employee may  opt  for  any  revised  scale  of  pay  under  any subsequent  Pay  Revision  Scheme,  if  he  agrees  to retire in accordance with the terms of such schemes or at the age of superannuation for the time being in force, where there is no such term.

(2) If  the officer  authorized by the Director under sub-rule (1) does not approve the appointment or extension of service in any case coming under clause (i) or clause (ii) or clause (iii) of sub rule (1), as the case may be, he shall refer the case to the Director and in the case of disapproval of any appointment or extension  of  service,  the  Director  or  the  Officer authorized  by  him  shall  communicate  to  the Committee the reasons therefor.

(3)  Where  the  committee  does  not  recommend extension of the service of a teacher or an employee under  clause  (iii)  of  sub-rule  (1),  it  shall  record specific reasons therefore and the person concerned may make his representation to the Director through the  District  Inspector/Inspectors  of  schools concerned and so far as the committee is concerned, the decision of the Director shall be final.

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(4) In an unaided Institution the Committee shall, subject  to  the  approval  of  the  Board,  have  the power-

(i) to appoint in accordance with the directions given by the Director, or in his behalf, teachers and other employees  on  permanent  or  temporary  basis, approval  of  such  appointment  being  thereafter sought  for  from  the  Board  through  the  Director ordinarily within a fortnight from the date of decision of the committee:

(ii)  to  extend  as  per  condition  laid  down  by  the Director  the  services  of  teachers  and  other employees  beyond  the  date  of  superannuation, approval for such extension being thereafter sought for from the Board ordinarily within a week from the date of decision of the committee.

(5) if in any case coming under clause(i) or clause(ii) of  sub-rule(4)  the  Board  does  not  approve  the appointment  the  appointment  or  extension  of service, as the case may be, it shall communicate to the committee the reasons for disapproval.

(6)  where  the  committee  does  not  recommend extension of service of a teacher under clause(ii) of sub-rule(4) it shall record specific reason therefore and  the  person  concerned  may  make  his representation to the board and the decision of the board  in  the  matter  shall  be  final  so  far  as  the committee is concerned.

(7) in all cases of appointment, both permanent and temporary,  the  committee  shall  issue  letters  of appointment, specifying the terms and conditions of such  appointment.  In  the  case  of  a  permanent appointment, a teacher or an employee appointed on probation shall  be confirmed on  the expiry  of  the

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period of probation unless an order to the contrary is issued at least  6 weeks before the date on which confirmation normally  falls  due.  In the case of  an appointment  on  temporary  basis  against  a permanent  post  the  teacher  or  the  employee  so appointed  shall  be  confirmed  on  completion  of  2 years’  continuous  satisfactory  service  in  the institution:

Provided  that  no  appointment  shall  be  made in  a vacancy  if  it  is  not  against  a  sanctioned  post, permanent or temporary.

(8)  Both  in  aided  and  un-aided  Institutions  the committee shall have the power, subject to the prior approval  of  the  board,  to  remove  or  dismiss permanent  or  temporary  teachers  and  other employees.   For  this  purpose  the  committee  shall first  draw  up  formal  proceedings  and  issue charge-sheet  to  the  teacher  or  the  employee concerned,  and  offer  him  reasonable  facility  for defending  himself.  The  teacher  or  the  employee proposed to be proceeded against shall  submit his explanation,  ordinarily,  within  a  fortnight  of  the receipt  of  the  charge-sheet,  the  committee  shall send to the Board all relevant papers including the charge-sheets,  explanations  submitted  by  the teachers or the employee concerned and the reason for which the Committee decides in favour of taking disciplinary action. If the Board considers that there are sufficient grounds for taking disciplinary action the Committee shall issue formal notice calling upon the  teacher  or  the  employee  concerned  to show-cause,  ordinarily  within  a  fortnight,  why  he should not be dismissed or removed from service. The committee shall, then, send again to the Board all  relevant  papers  including  the  explanations submitted by the teacher or the employee concerned and the recommendations of the committee for the action  proposed  to  be  taken.  So  far  as  the

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Committee is concerned, the decision of the Board shall be final:

Provided  that  the  Board  may  delegate  to  any committee constituted under section 24 of  the act the powers and functions conferred on the Board by this sub-rule.

(8.a) in case of lapses on the part of permanent or temporary  teachers  and  other  employees  of  an institution,  which  do  not  warrant  removal  or dismissal of the persons concerned, the Committee may impose minor penalties, like ‘stoppage of one to three  increments  in  pay,  reduction  of  pay  in  the timescale and censure, with the prior approval of the Board.  In  all  such  cases,  the  Committee  shall observe the procedure laid down in sub-rule (8).

(8.b) in the case of teaching and non-teaching staffs of  an  institution  detained  in  custody  for  a  period exceeding  48  hours  under  any  law  providing  for preventive detention or as a result of a proceeding for  preventive  detention  or  as  a  result  of  a proceeding either on a criminal charge or otherwise, such staffs shall be deemed to have been suspended by an order of the appointing authority, with effect from the date of detention and shall remain under suspension until further orders.

A teaching or non-teaching staff who is undergoing a sentence of imprisonment shall also be dealt with in the  same  manner,  pending  a  decision  on  the disciplinary action to be taken against him.

(9) in aided and un-aided Institutions the Committee shall have the power -

(i) to grant leave other than casual leave which shall be granted by the Head of the Institutions and by

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the Secretary of the Committee in the case of the Head of the Institution; to grant increments in pay to teachers and other employees in accordance with the procedure laid down from time to time or where in aided schools that grant of increment is regulated by grant-in-aid rules; in accordance with such rules;

(ii) to grant free or half- free studentship to students in  accordance  with  the  procedure  laid  down  from time to time, but ordinarily with the consent of the Head of the Institution.

(iii)  to  manage  funds  of  the  institutions  as  per direction given by the Director from time to time.

(iv) to frame annual report;

(v) to deal with all schemes of development of the institutions and such other manners;

(vi) to allocate the total period of holidays in a year but special holiday for a day or a portion thereof on account of death of any prominent person or for any special  occasion concerning the institution may be granted  by  the  Secretary  or  the  Head  of  the Institution at his discretion;

(vii)  to  grant  deputation  of  teachers,  where  such deputation  is  in  the  interest  of  the  institution provided that a teacher affected by the decision of the Committee may make his representation to the Director;

(viia) to suspend a teacher or an employee where such suspension is in the interest of the institution, pending  drawal  of  proceedings  against  the  person concerned  within  90  days  from  the  date  of suspension and during the period of suspension, the

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person concerned shall be paid pay and allowances equal to the 50% of the pay and allowances drawn by him immediately  before  such suspension.  Such steps shall be referred to the Board within 7 days of such action for approval. The person affected by the decision of the Committee may, however, make his/ her  representation  to  the  Board.  The  order  of suspension  shall  automatically  stand  withdrawn  in case proceeding are not drawn within a period of 90 days, provided that in exceptional circumstances this time limit  may be waived by the Board after  due consideration of the facts of the case, but under no circumstances the time-limit shall be waived beyond the limit of 1 year;

Provided  that  where  the  period  of  suspension exceeds  90  days,  the  amount  of  subsistence allowance shall be increased after the expiry of 90 days  to  75%  of  the  pay  and  allowances  drawn immediately before such suspension;

Provided further that the person concerned shall not be entitled to any subsistence allowance if  he/she accepts employment during the period of suspension elsewhere.

(viii) to deal with other matters that are brought to the Committee in the interest of the Institution.

Note: After clause (i) of sub-rule (9) of Rule 28, add the following note:

“The Committee shall grant leave according to rules shown in the appendix.”

Note:  An  Institution  receiving  recurring  financial assistance  in  any  shape  or  form  the  State Government either for maintenance or for payment of salary and/or allowances of teachers and/or other

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employees  thereof  shall  be  treated  as  an  aided Institution for the purposes of these rules.”

18. 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.  

19. 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

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paying  to  them in  the  absence  of  the  State  Government

recognising  the  appointments  and  releasing  grant  in  aid

against their posts.   

20. 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  learned  counsel  for  the

appellants  that  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 suitably moulded.

21. In the result I allow these appeals, set aside the orders

passed by the Division Bench of the High Court and allow

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the writ petitions filed by the appellants with a direction to

the respondents to grant approval to the appointment of the

appellants  with  effect  from  the  date  vacancies  became

available  for  such  appointments.  Consequential  relief

including arrears of salary for the relevant period i.e. from

the  date  the  appointments  are  approved  shall  also  be

released in favour of the appellants.   

22. Parties are directed to bear their own costs.         

………………………………….…..…J.        (T.S. THAKUR)

New Delhi December 11, 2014

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2858 OF 2007

Chandana Das (Malakar)                                      … Appellant

Versus

State of West Bengal & Ors.                              … Respondents

WITH

CIVIL APPEAL NO.2859 OF 2007

Sukhbindar Kaur                                                 … Appellant

Versus

State of West Bengal & Ors.                              … Respondents

J U D G M E N T

R. BANUMATHI, J.

I  have  gone  through  the  judgment  prepared  by  His

Lordship Justice T.S. Thakur.  But, for the reasons which I shall

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indicate, I am unable to agree with the interpretation placed on

Rule 8, Sub-rule (3) of the Rules for Management of Recognized

Non-Government  Institutions  (Aided  and  Unaided)  1969  and

other reasonings.   Consequently, I  do not also agree with the

final decision as, in my opinion, the present appeals are liable to

be  dismissed  and  the  judgment  of  the  High  Court  has  to  be

upheld.

3. Khalsa Primary School was started by the Sikh Community

living  in  Calcutta  in  1932  for  the  purpose  of  promoting  their

culture and religious tenets and imparting the education to the

pupils  belonging to their  community.   The said Khalsa School

was upgraded as High School and the State Government granted

recognition  to  the  institution  in  1954.  Special  Constitution

granted to the Managing Committee in terms of Rule 8, Sub-rule

(3) of the Rules for Management of Recognised Non-Government

Institutions (Aided and Unaided) 1969 (for short ‘the Rules’) was

ordered to be continued until further orders by the proceedings

dated 3.10.1985.

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4.         The appellant-Chandana Das (Malakar) in Civil Appeal

No.  2858  of  2007  was  appointed  as  an  Assistant  Teacher  in

Science and Maths group on 1.4.1988 on a consolidated pay of

Rs.600/-  per  month.  The  appellant-Sukhbindar  Kaur  in  Civil

Appeal  No.2959  of  2007  was  appointed  as  Physical  Training

Teacher  from  November  1984  on  temporary  basis  on  a

consolidated  pay  of  Rs.300/-  per  month.   The  fourth

respondent-School sent the proposal to the District Inspector of

Schools (DIOS) for regularization of the services of the appellants.

The appellants approached the High Court by filing writ petitions

(W.P.Nos.10032/96  &  12443/97  by  Chandana  Das  &

W.P.Nos.10033/96 & 12442/97 by Sukhbinder Kaur) and those

writ  petitions  were  disposed of  directing  DIOS to  consider  the

representation of the appellants.  DIOS refused to approve the

appointment  of  the appellants on the ground that  recruitment

procedure was not maintained at the time of appointment and as

per the sanctioned strength of staff pattern, there was no vacant

post in the respective groups.  The appellants again approached

the High Court by filing writ petitions (being W.P.Nos.16256/03 &

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16255/03) respectively which were allowed by the learned Single

Judge on the ground that the appointment of a teacher was an

essential  facet  of  administration  of  minority  educational

institutions  and the  institutions  had the  right  to  choose  their

teachers  and  the  fourth  respondent-school  was  entitled  to

appoint  its  own teachers.   Being  aggrieved,  the  State  of  West

Bengal preferred appeals before the High Court.  By the common

judgment,  the  Division  Bench  of  the  High  Court  allowed  the

appeals holding that the institution is not a minority institution

and  that  the  appellants  were  appointed  dehors the  provisions

contained in Rule 28 of the Rules and hence no direction could

be issued for approval of their appointment and payment of their

arrears of salary. Being aggrieved, the appellants have filed these

appeals.

5. Even though the prayer in the writ petitions is for direction

to  the  Education  Department-DIOS  to  grant  approval  to  the

appointment of the appellants and to pay their arrears of salary

over  the  years,  the  appellants  based  their  claim  mainly

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contending  that  the  fourth  respondent-school  is  a  minority

institution and is entitled to appoint its own teachers dehors the

provisions  of  the  Rules  for  Management  of  Recognized

Non-Government  Institutions  (Aided  and  Unaided)  1969.   The

issue primarily  arising  for  consideration is  whether  the  fourth

respondent-school can claim the status of a minority institution

entitled to appoint its own teachers        dehors Rule 28 of the

Rules.   

6. Recognized  non-Government  Institutions,  both  aided  and

unaided,  are  governed  by  the  Management  of  Recognised

Non-Government Institutions (Aided and Unaided) Rules, 1969.

Rule  28  of  the  Rules  stipulates  that  in  the  matters  of

appointment  of  teachers  on  permanent  or  temporary  basis

against permanent or temporary vacancies, if and when available,

appointment to be made only on the recommendation of the West

Bengal Regional School Service Commission and on approval by

the Director or any officer authorized by him.  As per Rule 28 (ia),

the  appointments  are  to  be  made  in  accordance  with  the

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directions  given  by  the  Director  only  within  the  sanctioned

strength of teachers and on approval of the Director or a person

authorized  by  him.   Rule  28  thus  clearly  stipulates  that  a

recognized  institution  can  appoint  a  teacher  on  a  permanent

vacancy only  if  such teacher  has  been recommended for  such

appointment  by  the  School  Service  Commission.  The  school

cannot appoint anyone else. It is to be pointed out that there was

no  recommendation  in  favour  of  the  appellants  by  the  West

Bengal Regional School Service Commission. Since the appellants

were  appointed  without  any  recommendation  of  the  School

Service Commission,  DIOS rightly  refused to grant approval  to

the appointment of  the appellants as recruitment procedure in

terms of Rule 28 was not followed at the time of appointment of

the appellants.

7. Contention of the learned counsel for the appellants is that

fourth  respondent-school  is  enjoying  the  status  of  a  linguistic

minority institution for conserving its group culture and language

and it has got every right of administration and it has the right to

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choose  its  Managing Committee and appoint  its  own teachers.

The  appellants  rely  upon  the  representation  of  the  fourth

respondent-school  (dated  19.4.1976)  in  which  the  fourth

respondent-school has traced the history as to how Khalsa Girls

High School was formed by the Sikh community.

7. The  impugned  judgment  of  the  Division Bench of  

the Calcutta High Court is as under:  

“…. In such view of the matter, a Constitution permitted under Sub-Rule III 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 authorizes 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 III  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….”

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In my considered view, the above reasonings of the Calcutta High

Court is to be affirmed for the reasons indicated by me herein.

8. Article 30(1) of the Constitution of India gives rights to

minorities to establish and to administer educational institutions

of their choice.  In the journey of interpreting the provisions of

Articles 29 and 30 of the Constitution of India, this Court has

elaborated the scope and ambit of the rights conferred by Articles

29 and 30 of the Constitution of India in favour of religious or

linguistic minorities in various judgments, viz. In Re: The Kerala

Education Bill, 1957 [1959 SCR 995],  The Ahmedabad St. Xaviers

College Society & Anr. v. State of Gujarat & Anr. [(1974) 1 SCC

717) and T.M.A. Pai Foundation & Ors. v. State of Karnataka &

Ors.[(2002) 8 SCC 481].  

9. Merely  because  an  educational  institution  is

established  by  a  religious  or  linguistic  minority,  it  does  not

automatically become a minority institution for the purposes of

claiming right of administration and for getting grant-in-aid.  The

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concerned educational institution so established by the religious

or linguistic minority must be recognized or granted the status of

minority  institution  by  the  competent  authorities.  The  fourth

respondent-school  was  established  by  the  Sikh  Community  in

1932 and adopted its constitution and bye-laws in 1945.  That

Sikh Community being a minority in the State of  West Bengal

does  not  necessarily  imply  that  the  fourth  respondent-school

would be minority institution as per law.  According to the official

respondents,  minority  status  was  never  granted  to  the  fourth

respondent-school and only Special Constitution of Management

was granted to the school.   As the fourth respondent-school was

never  declared  to  be  a  minority  institution  by  the  competent

authorities, the judgment in  T.M.A. Pai Foundation’s case is not

applicable to the fourth respondent-school.   

10. The  fourth  respondent-school  in  its  representation

dated 19.4.1976, has requested for grant of  minority status in

terms of Rule 33 of the Rules and that the institution may be

declared as a minority community institution. We may usefully

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extract  the  prayer  in  the  said  representation,  which  reads  as

under:

“…it is humbly requested that under Rule 33 of the Rules framed and  approved  by  the  Government  of  West  Bengal  for  the administration  of  aided  recognized  institutions  our  institution may  be  declared  as  a  minority  community  institution  and  a special constitution for the same may kindly be approved – the draft of which will be submitted soon.”

11. The fourth respondent-school was granted only Special

Constitution as is seen from the proceedings dated 3.10.1985 of

the West Bengal Board of Secondary Education, which reads as

follows:

“West Bengal Board of Secondary Education   

77/2, Park Street, Calcutta-16

                                                                 Dated: 3.10.85    

To

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The Headmistress

Khalsa Girls’ High School

75, Padmapukur Road,

Calcutta – 20

Sub:  Special Constitution of the Managing Committee of the School

Madam,

I  am  directed  to  state  that  the  permission  of  Special Constitution  as  per  Board’s  letter  No.4311/G  dated  7.6.62  will  be continued until further order...

Sd/-

for (Secretary)”

As  seen  from the  above,  the  school  was  only  granted  Special

Constitution in terms of the Rules.  There is nothing on record to

show  that  the  school  was  granted  minority  status  by  the

competent authority.

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12. Rule 33 of the Rules enables the State Government to

frame  further  rules  for  certain  institutions  to  which  the

provisions of Article 26 or Article 30 of the Constitution of India

may  apply.   In  case  of  minority  institution,  special  rules  so

framed will apply.  Rule 33 of the Rules reads as under:

“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.”   

13.    The fourth respondent-school has not produced any

document to show that it has been accorded the minority status.

Though the fourth respondent-school contends that in terms of

Rule  33  of  the  Rules,  no  special  rules  have  been  framed  for

minority  community  institutions,  in  its  representation  referred

above, the fourth respondent–school has requested for grant of

minority status in terms of the said rules framed under Rule 33.

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The appellants as well as the fourth respondent-school rely upon

the document signed by a member of the West Bengal Minorities

Commission  (dated  6.10.1999)  stating  that  Khalsa  Girls  High

School is enjoying the status of a linguistic minority institution

having all facilities enjoyable and available under Articles 29(1)

and 30(1) of the Constitution of India.  Neither the appellants nor

the  fourth  respondent-school  have  produced  any  document

issued by the competent authority,   namely,  the West Bengal

Board of Secondary Education, granting minority status to fourth

respondent-school. In the absence of any order by the competent

authority, the fourth respondent-school is bound by the mandate

contained  in  the  Rules  for  Management  of  Recognized

Non-Government Institutions (both Aided and Unaided) Rules.  In

terms of Rule 28, the fourth respondent-school can only appoint

in  permanent  posts  the  persons/teachers,  who  have  been

recommended  by  the  West  Bengal  Regional  School  Service

Commission.  Rule 28(1) reads as follows:-

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“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 guidelines issued by  the State Government or the Director in connection therewith and in force for the time being,  have the power-

3. 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;”          

When  the  fourth  respondent-school  has  not  been  granted

minority status, the fourth respondent-school cannot appoint its

own  teachers  dehors Rule  28  of  the  Rules.   Admittedly,  the

appellants were appointed dehors Rule 28 and they cannot seek

direction for approval of their appointment and arrears of salary.   

14. Onbehalf of respondent Nos. 4 & 5 it was contended

that the fourth respondent-school is a minority institution and

declaration of its minority status by the Government could only

be a recommendation of an existing fact and therefore rights of

fourth  respondent-school  as  a  minority  institution  cannot  be

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tinkered  with  and  right  to  appoint  teachers  of  its  own choice

cannot be wished away. In support of this contention, reliance

was placed upon the judgment of  this Court in  N. Ammad  vs.

Manager, Emjay High School & Ors. (1998) 6 SCC 674 wherein it

was held as under:-

“12. Counsel for both sides conceded that there is no provision in the Act which enables the Government to declare a school as a minority school. If so, a school which is otherwise a minority school  would  continue  to  be  so  whether  the  Government declared it as such or not. Declaration by the Government is at best only a recognition of an existing fact. Article 30(1) of the Constitution reads thus:

“30. (1) All minorities, whether based on religion or language, shall have the right to establish and administer  educational  institutions  of  their choice.”

13. When the Government declared the School as a minority school it has recognised a factual position that the School was established  and  is  being  administered  by  a  minority community.  The declaration is only an open acceptance of a legal  character  which  should  necessarily  have  existed antecedent  to  such  declaration.  Therefore,  we  are  unable  to agree with the contention that the School can claim protection only after the Government declared it as a minority school on 2-8-1994.”

15. The fourth respondent-school being a recognized aided

institution is bound by the Rules for Management of Recognized

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Non-Government  Institutions  (Aided  and  Unaided)  1969.   As

noticed earlier, permission for Special Constitution was granted

to the fourth respondent-school in terms of Rule 8(3) of the Rules.

Having accepted the Special Constitution in terms of Rule 8(3),

the  fourth  respondent-school  cannot  turn  round  and  contend

that  it  is  a minority  institution as per special  rules framed in

terms  of  Rule  33.  Having  not  challenged  the  permission  for

Special  Constitution,  fourth-respondent-school  cannot  place

reliance  on  the  above  decision  to  contend  that  it  is  only  a

minority institution.  

16. Relying upon a document dated 6.10.1999 signed by a

Member  of  West  Bengal  Minorities  Commission,  on  behalf  of

respondent Nos.4 and 5 a feeble attempt was made to contend

that fourth respondent-school was granted minority status with

effect from the said date, i.e. 6.10.1999, and by virtue of the said

document the fourth respondent-school must be deemed to be a

minority  institution.  The  said  document  is  signed  by  only  a

Member  of  the  West  Bengal  Minorities  Commission.   The

proceedings (dated 3.10.1985) of West Bengal Board of Secondary

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Education  continuing  the  permission  of  special  constitution

states  that  the  special  constitution  of  the  fourth  respondent

school  is  continued  until  further  orders.  The  fourth

respondent-school has not produced any further orders issued by

the  competent  authority,  namely,  the  West  Bengal  Board  of

Secondary Education,  recognizing the fourth respondent-school

as  the  minority  institution.   Be  it  noted  that  the  fourth

respondent- school has not produced any material showing that

over the years it  has been appointing its  own teachers  dehors

Rule 28 and that those appointments were approved by the DIOS.

In  the  absence  of  any  such  order  issued  by  the  competent

authority or material, the fourth respondent-school cannot claim

the status of a minority institution.

17.  Let me now consider the scope of Special Constitution

in  terms  of  Rule  8(3)  of  the  Rules  and  when  the  fourth

respondent-school has accepted the Special Constitution whether

it can still claim minority status.

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18.   As noticed earlier, the management of both aided and

unaided recognized institutions is governed by the Management

of Recognised Institutions (Aided & Unaided) Rules, 1969.  Rule 6

of  the  Rules  provides  for  composition  of  the  management

committee  of  an  institution  other  than  that  sponsored  by  the

State Government.  Rule 6A of the Rules provides for manner of

formation of a managing committee.  Rule 8 lays down the power

of the Executive Committee of the Board of Secondary Education

to grant special constitution and approve or supersede managing

committee, appoint administrator or ad-hoc committee. ‘Special

Constitution’  means  the  special  provision  regarding

representations in the Managing Committee.  As per Rule 8(3),

there  has  to  be  proper  representation  of  the  members  of  the

teaching and the non-teaching staff, guardians and the member

nominated by the Director etc.  

19.  In  terms  of  Rule  8(3)  of  the  Rules,  the  Executive

Committee  shall  have  the  power  to  approve  the  special

constitution of a committee in favour of any institution.  As per

the  proviso  to  Rule  8(3),  if  the  Executive  Committee  is  of  the

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opinion that a school enjoying special constitution has not been

functioning  properly,  the  Executive  Committee  may  withdraw

such special constitution of the committee and in that event, the

Executive Committee may appoint an administrator or an ad-hoc

Committee.  Rule 8(3) of the Rules reads as under:

“8(3).  Power  of  Executive  Committee  to  approve  and supersede  Committee,  to  appoint  Administrator  or ad-hoc Committee and to grant special constitution:

(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 Institutions, the Executive Committee shall  ensure  that  representation  of  the  members  of  the teaching  and  the  non-teaching  staff,  guardians  and  the member nominated by the Director or an office authorized 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 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.”

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20.  Clause (1)  of  Article 30 of  the Constitution of India

provides that all minorities whether based on religion or language

shall  have  the  right  (i)  to  establish  and  (ii)  to  administer

educational  institutions  of  their  choice.  The  expression  ‘to

establish’ means to set up on permanent basis.  The expression

‘to administer’ means to manage or to attend to the running of

the affairs of the institution.  The choice must be the absolute

choice vested absolutely in the minority community.  

21.  This Court  in  The  Ahmedabad St. Xaviers College

Society   (supra)  considered   the   scope  of    the   expression

‘administer’ and held as under:

“………The right  to  administer  is  said to  consist  of  four  principal matters.  First is the right to choose its managing or governing body. It is said that the founders of the minority institution have faith and confidence in  their  own committee  or  body consisting  of  persons selected by them.  Second is the right to choose its teachers.  It is said that minority institutions want teachers to have compatibility with the ideals, aims and aspirations of the institution.  Third is the right not to be compelled to refuse admission to students.  In other words,  the  minority  institutions  want  to  have  the  right  to  admit students  of  their  choice  subject  to  reasonable  regulations  about academic qualifications.  Fourth is the right to use its properties and assets for the benefit of its own institution.”

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22. In  terms  of  Rule  8(3)  of  the  Rules,  the  special

constitution of an institution should comprise according to clause

(iii), clause (v) and clause (vi) of Rule 6.  As per the proviso to Rule

8(3) of the Rules, 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 appoint

an Administrator or an Ad-hoc Committee.  Special constitution

has  been granted to  the  fourth  respondent-school  in  terms of

Rule  8(3)  of  the Rules.   A  reading of  Rule  8(3)  thereon would

clearly  show  that  the  institution  having  special  constitution

cannot have a managing committee of its own, but the managing

committee should be in terms of  Rule 8(3) of  the Rules which

indicates that the right of the institution to have the managing

committee is curtailed. The right of the minorities is to establish

and to administer educational institutions of their choice.  Choice

must  be  an  absolute  choice  of  the  minority  community.   The

moment the said right is abridged, the choice no longer remains a

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choice.   In  my  considered  view,  the  Division  Bench  of  the

Calcutta High Court has rightly held that Rule 8(3) of the Rules

amounts to an imposition abridging the fundamental right and

therefore a special constitution permitted under Rule 8(3) cannot

be  in  relation  to  minority  community  institutions.  Having

accepted  the  special  constitution  in  terms  of  Rule  8(3)  of  the

Rules, the fourth respondent-school cannot contend that it is a

minority institution governed by the special rules framed by the

State under Rule 33 of the Rules.   

23. The fourth respondent-school has accepted the special

constitution and it  has not chosen to challenge the same.  As

rightly  held  by  the  High  Court,  when  the  fourth

respondent-school has accepted the special constitution and has

not claimed to be a minority institution, the appellants who are

merely employees of such an institution, cannot contend that the

institution was a minority institution entitled to appoint its own

teachers.

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24.  Since  the  appellants  were  appointed  dehors the

provisions  contained  in  Rule  28  of  the  Rules,  the  High  Court

rightly  held  that  their  appointment  is  in  contravention  of  the

Rules and beyond the sanctioned strength at the relevant time

and  no  direction  could  be  issued  for  approval  of  their

appointment.  The impugned order  of  the  High Court  does  not

suffer from any infirmity warranting interference.

25. In the result, the appeals are dismissed. Parties shall

bear their respective costs.              

…………………….J.

                                                            (R. Banumathi)

New Delhi,

December 11, 2014