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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  

The State of West Bengal & Ors.   … Respondents  

WITH  

CIVIL APPEAL NO.2859 OF 2007  

JUDGMENT  

R.F. Nariman, J.  

1. These appeals have been referred to a Three Judge Bench  

in view of a disagreement between T.S. Thakur, J. and R.  

Banumathi, J., reported as Chandana Das (Malakar) v. State of  

West Bengal (2015) 12 SCC 140. The facts that are necessary in  

order to decide these appeals are set out by Thakur, J. in his  

judgment as follows:  

“2. The appellants, it appears, were appointed as teachers  on temporary basis in what is known as Khalsa Girls High

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School, Paddapukur Road, Bhowanipore, Calcutta. Their  appointment did not, however, meet the approval of the  District Inspector of Schools, Calcutta, according to whom  any such appointment could be made only on the  recommendations of the School Service Commission  established under the Rules for Management of  Recognised Non-Government Institutions (Aided and  Unaided), 1969 (hereinafter referred to as “the Rules”).  

3. Aggrieved by the order passed by the District Inspector,  the appellants approached the High Court of Calcutta in  Writ Petitions Nos. 16256 and 16255 of 2003 which were  allowed by a learned Single Judge of the High Court by  his order dated 29-1-2004 holding that the Institution in  which the appellants were appointed being a linguistic  minority institution was entitled to select and appoint its  teachers. The Single Bench accordingly directed the  respondents in the writ petitions to approve the  appointment of the appellants as whole-time teachers with  effect from 28-7-1999 and release the arrears of salary  and other service benefits in their favour with effect from  the said date.  

4. Aggrieved by the judgment and order of the learned  Single Judge, the State of West Bengal, Director of School  Education and District Inspector of Schools preferred  CANs Nos. 3861 and 3863 of 2004 against the order  passed by the Single Bench which appeals were allowed  and disposed of by a Division Bench of that Court by a  common order dated 23-9-2004 [State of  W.B. v. Sukhbindar Kaur, 2004 SCC OnLine Cal 570 :  (2005) 3 CHN 604] . The High Court held that since the  Institution in which the appellants were appointed was a  recognised aided Institution, the management of the  Institution was bound to follow the mandate of Rule 28 of  the Rules aforementioned which permitted appointments  against a permanent post only if the candidate was  recommended for any such appointment by the School  Service Commission.  

5. The Division Bench further held that the appellants  having been appointed beyond the sanctioned staff

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strength at the relevant point of time and dehors the Rules  could not claim any approval in their favour. The Court  noted that the directions issued by the Director of School  Education, Government of West Bengal did not permit any  appointment without the prior permission of the Director.  No such permission had been, in the case at hand,  obtained from the Director. More importantly, the Division  Bench held that since the Institution had not made any  claim to its being a minority institution it was not open to  the employee writ petitioners to claim any such status on  its behalf. The Division Bench further took the view that  once a minority community applies for a special  constitution under sub-rule (3) of Rule 8 of the said Rules  it represents to the State Government that it was not  claiming the status of a minority institution. The Single  Bench had, therefore, fallen in error in holding that the  Institution where the appellants worked was a minority  institution or that the appointment made by such an  Institution would not be regulated by Rule 28 of the Rules  mentioned above. The present appeals, as noticed above,  call in question the correctness of the view taken by the  Division Bench of the High Court.  

6. The short question that falls for determination is  whether Khalsa Girls High School, Poddapukur Road,  Calcutta is a minority institution, if so, whether the  Institution's right to select and appoint teachers is in any  way affected by the provisions of the Rules of  Management of Recognised Non-Government Institutions  (Aided and Unaided), 1969 framed under the provisions  of the West Bengal Board of Secondary Education Act,  1963?  

xxx xxx xxx  

8. The Institution's case, on the other hand, is that the  same was and continues to be a linguistic minority  institution from its inception. The affidavit filed on behalf of  the Institution traces the history behind the establishment  of the Institution for the benefit of Punjabi-speaking Sikhs  settled in Calcutta and other parts of West Bengal. The  affidavit states that on 19-4-1976 a detailed memorandum

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was sent by the 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 the  West Bengal Minority Commission in terms of its Order  dated 6-10-1989. The affidavit states that minority status  of the Institution continues despite the grant sanctioned by  the State which cannot carry conditions that would have  the effect of defeating or diluting the right of minority to  establish and administer its own Institutions. It was also  contended that Rule 33 of the Rules reserves in favour of  the State Government the power to frame further rules for  certain institutions to which the provisions of Articles 26  and 30 of the Constitution apply. No such rules having  been framed a minority can establish and run its institution  in accordance with a special constitution that may be  sanctioned in its favour. Rule 28 of the Rules relating to  the appointment of teachers in minority institutions,  therefore, does not apply in the present case.”  

2. The question posed by Thakur, J. in paragraph 6 of the  

judgment was answered stating:  

“21. It is unnecessary to multiply decisions on the subject  for the legal position is well settled. Linguistic institution  and religious are entitled to establish and administer their  institutions. Such right of administration includes the right  of appointing teachers of its choice but does not denude  the State of its power to frame regulations that may  prescribe the conditions of eligibility for appointment of  such teachers. The regulations can also prescribe  measures to ensure that the institution is run efficiently for  the right to administer does not include the right to  maladministration. While grant-in-aid is not included in the  guarantee contained in the Constitution to linguistic and  religious minorities for establishing and running their  educational institutions, such grant cannot be denied to  such institutions only because the institutions are  established by linguistic or religious minority. Grant of aid

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cannot, however, be made subservient to conditions  which deprive the institution of their substantive right of  administering such institutions. Suffice it to say that once  Respondent 4 Institution is held to be a minority institution  entitled to the protection of Articles 26 and 30 of the  Constitution of India the right to appoint teachers of its  choice who satisfy the conditions of eligibility prescribed  for such appointments under the relevant rules is implicit  in their rights to administer such institutions. Such rights  cannot then be diluted by the State or its functionaries  insisting that the appointment should be made only with  the approval of the Director or by following the mechanism  generally prescribed for institutions that do not enjoy the  minority status.  

22. The view taken by the Division Bench of the High  Court that appointments of the appellants were dehors the  Rules inasmuch as they were not made by the School  Service Commission hence did not qualify for approval,  does not appear to us to be sound. The mechanism  provided for making appointments under Rule 28 has no  application to minority educational institutions.  

xxx xxx xxx  

24. Placed in juxtaposition to Rule 33 of the Rules  extracted earlier, it is self-evident that while Rule 28  applies generally to other institutions; Rule 33 is more  specific in its application to minority educational  institutions covered by Article 26 or 30 of the Constitution.  In the absence of any rules framed for such minority  educational institutions the minority educational institution  in the present case was entitled to select and appoint its  teachers so long as other conditions for such  appointments, namely, availability of substantive  vacancies and the eligibility of the candidates for such  appointments were duly satisfied.  

25. It is not, in the instant case, disputed that the  appellants were both duly qualified for appointment as  teachers in the subject concerned. It is also not in dispute  that they have been serving for a considerable length of

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time on a meagre salary which the institution has been  paying to them in the absence of the State Government  recognising the appointments and releasing grant-in-aid  against their posts.  

26. The only other question that could possibly arise in the  matter of approval of such appointments was the absence  of a sanctioned post as on the date the appointments were  made. It was contended by the learned counsel for the  appellants that vacancies had subsequently arisen  against which the appointments of the appellants could be  approved and the salary payable to them from the date of  such vacancies becoming available released. If that be so,  we see no reason why the appointments of the appellants  should not be approved with effect from the date of such  vacancies becoming available against which such  appointments could be regularised. To that extent the  relief prayed for by the appellants shall be suitably  moulded.”  

3. Banumathi, J. delivered a separate judgment disagreeing  

with these conclusions. She agreed with the Division Bench  

judgment of the Calcutta High Court, which had upset the Single  

Bench judgment of that Court, and held as follows:  

“34. The impugned judgment [State of W.B. v. Sukhbindar  Kaur, 2004 SCC OnLine Cal 570 : (2005) 3 CHN 604] of  the Division Bench of the Calcutta High Court is as under:  (Sukhbindar Kaur case [State of W.B. v. Sukhbindar  Kaur, 2004 SCC OnLine Cal 570 : (2005) 3 CHN 604] ,  SCC OnLine Cal para 4)  

“4. … In such view of the matter, a Constitution  permitted under sub-rule (3) of Rule 8 of the said  Rules cannot be in relation to minority community  institutions. That has been amply cleared by framing  Rule 33 in the Management Rules which specifically  deals with institutions entitled to protection of Articles  26 and 30. It authorises the State Government to  make special rules for constitution of the Managing

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Committee of such institutions. The moment a  minority community applies for a special constitution  under sub-rule (3) of Rule 8 of the said Rules it  represents to the State Government that it is not  claiming the status of minority community at least at  the time when such application is made.”  

In my considered view, the above reasoning of the  Calcutta High Court is to be affirmed for the reasons  indicated by me herein.”  

4. The main grounds for disagreement were two.  In paragraphs  

36 to 40, the learned Judge found that in the absence of any order  

by the competent authority under the West Bengal Board of  

Secondary Education Act granting minority status to the  

Respondent No.4 school, the said school cannot claim to be a  

minority institution for the purpose of Article 30 and is, therefore,  

bound, being an aided institution, by the 1969 Rules, in particular  

Rule 28 thereof. The other plank of the decision was contained in  

paragraphs 43 and 51, stating that the school having accepted the  

special constitution in terms of Rule 8(3) of the Rules, the school is  

estopped from contending that it is a minority institution governed  

by special rules to be framed by the State under Rule 33 of the  

Rules.   

5. Shri Siddharth Bhatnagar, learned Senior Advocate  

appearing on behalf of the Appellants, has taken us through the  

impugned High Court judgment as well as the judgments of Thakur,

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J. and Banumathi, J.  He also read Rules 6, 8(3), 28 and 33 of the  

Rules together with the request dated 19th April, 1976 of the Khalsa  

Girls School, stating that it was formed on behalf of the Sikh  

religious and linguistic minority in the State of West Bengal and to  

accord it the status of a minority institution. He then relied upon an  

order dated 7th May, 1982 of the West Bengal Board of Secondary  

Education, in which, despite approving of a special constitution for  

future management of the school, was done in deviation of Rule 6  

in recognition of the fact that it was a minority institution.  He also  

brought to our notice the fact that since 2008, Rule 32(c) is now  

substituted as follows:  

“32. Rules not to apply to certain Institutions--- Nothing  

in these rules shall apply to -  

xxx xxx xxx  

(c) the non-Government aided Educational Institution  

established and administered by a Minority referred to in  

clause (c) of Section 2 of the West Bengal Minorities’  

Commission Act, 1996 (West Bengal Act XVI of 1996);   

xxx xxx xxx   

Explanation :- For removal of any doubt, it is hereby  

declared that the State Government may, for the purpose  

of ensuring quality education, access and equity, on an  

application made by any non-Government aided  

Educational Institution referred to in clause (c), make rules  

under the provisions of the said Act for the composition,  

powers, functions etc of the Committee of such  

Institution;”  

As a consequence, Rule 33 has been omitted.   

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6.  He then took us through Section 2(c) of the West Bengal  

Minorities’ Commission Act, 1996, which states as follows:  

“2. Definitions -  In this Act, unless the context otherwise  requires,-   

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(c) "Minority", for the purpose of this Act, means a  community based on religion such as Muslim, Christian,  Sikh, Buddhist, or Zoroastrian (Parsee), and includes -   

(i) such other minority as the Central Government  may notify under clause (c) of section 2 of the  National Commission for Minorities Act, 1992, or .   

(ii) such other minority based on language within  the purview of article 29 of the Constitution of India  (hereinafter referred to as the Constitution) as the  State Government may, by notification, specify  from time to time;”  

On facts, he argued that it was wholly incorrect to hold that the  

management of the school had given up its right to be a minority  

institution. He also argued, based on several judgments, that the  

fundamental right under Article 30 of the Constitution of India  

cannot be waived.  He also took us through various judgments to  

show that though Respondent No.4 school was an aided institution,  

Rule 28 qua appointment of teachers would not be applicable to it  

as it is a minority institution. He also cited judgments before us to  

show that it was unnecessary to first obtain a declaration from the  

competent authority that the school is a minority institution as any  

such declaration would only be a recognition of a pre-existing right,

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if the institution was, in fact, set up by the minority community for  

the minority community.  

7. Shri Rana Mukherjee, learned Senior Advocate appearing on  

behalf of Respondent No.4 school, broadly echoed Shri  

Bhatnagar’s arguments and also took us through the letter dated  

19th April, 1976 to show that Respondent No.4 school was set up  

purely as a linguistic minority school in the State of West Bengal.    

Hence, he supported the prayer of the teachers that they be  

regularised against vacancies that have since arisen.  

8. Shri Soumya Chakraborty, learned Senior Advocate  

appearing on behalf of the State, strongly relied upon the judgment  

of Banumathi, J. and, in addition, argued that Article 350B would  

make it clear that the institution must first be declared to be a  

minority institution before it can avail of the fundamental right under  

Article 30. He added that in any case the medium of instruction was  

Hindi and, therefore, being the national language, the institution  

could not be said to cater to the needs of the minority community.    

He also made a fervent plea to refer the matter to a larger Bench,  

given the fact that a Division Bench of this Court had in Shiromani  

Gurudwara Prabandhak Committee v. Shail Mittal SLP (C) No.  

2755/2008 by an order dated 18th November, 2010 referred a

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similar matter to be heard along with other matters by a Constitution  

Bench.  

9. Before embarking on the questions raised in these appeals,  

it is important to first advert to the West Bengal Board of Secondary  

Education Act, 1963. It is enough to state that this Act establishes  

the West Bengal Board of Secondary Education and various  

Committees and Regional Examination Councils and then lays  

down their powers. Suffice it to say that it is no part of the powers  

and duties of the Board or of any authority set up therein to declare  

that a particular institution is, or is not, a minority institution.  

10. It is now necessary to advert to the Management of  

Recognised Non-Government Institutions (Aided and Unaided)  

Rules, 1969. Rule 6 is relevant and is set out hereinbelow as  

follows:  

“6. Composition of the Committee of an Institution  

other than that sponsored by the State Government:  

The Committee shall consist of the following members:-  

(i) one founder to be chosen in the manner provided  

in Rule 6A;  

(ii) one Life Member, if any, to be selected  or  

nominated in the manner laid down in Rule 6A;  

(iii) six guardians of whom two shall be woman in case  

of a girls school in the case of institutions having classes  

XI and XII recognized  by the West Bengal Council of  

Higher Secondary Education and/or X-Class High

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Schools and three guardians in the case of Junior High  

Schools, to be elected or nominated, as the case may be,  

in the manner laid down in sub-rule (2) of Rule 6A;  

(iv) one person interested in education (to be co-opted)  

in the manner laid down in clause (i) of sub-rule (3) of Rule  

6A;  

Provided that in the case of an institution located  

within the jurisdiction of a Panchayet, one person  

interested in education shall be the nominee of the Local  

Panchayet Samity. The person so nominated shall be a  

resident of the locality within the jurisdiction of the said  

Panchayet Samity;  

(v) three teaching staff except the Head of an  

Institution and one non-teaching staff in the case of an  

institution with Higher Secondary Classes (XI and XII)  

recognised by the West Bengal Council of Higher  

Secondary Education and/or a X-Class High School and  

two members  from among the teaching  and non-teaching  

staff in the case of a junior High School, to be elected in  

the manner prescribed in Clause (i) of sub-rule (4) of Rule  

6A;  

(vi) one member of the Committee shall be nominated  

by the Director or by an officer authorised by him in this  

behalf;  

(vii) Head of the Institution (ex-officio).  

Provided that no person shall be eligible to  

represent more than one category.  

Rule 8(3) is important for our purpose and states as follows:  

“8. Power of Executive Committee to approve and  Supersede Committee, to appoint Administrator or  Ad-hoc Committee and to grant special constitution;  

xxx xxx xxx  

(3) Notwithstanding anything contained in these rules, the  

Executive Committee shall have the power to approve, on  

the application of any Institution or class of Institutions, of  

the special constitution of a Committee in favour of such

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Institution or class of Institutions and in approving the  

special constitution of a Committee, the Executive  

Committee shall pay due regard to the recommendations  

of the Director, if any. While granting special constitution  

in favour of an Institution or a class of Institution, the  

Executive Committee shall ensure that representation of  

the members of the teaching and the non-teaching staff,  

guardians and the member nominated by the Director or  

an officer authorised by him in this behalf, is made  

according to clause (iii), clause (v) and clause (vi) of Rule  

6:  

Provided that if the Executive Committee is of the  

opinion that a school enjoying special constitution has not  

been functioning properly, the Executive Committee may,  

after paying due regard to the recommendations of the  

Director, if any, amend or withdraw such special  

constitution of a Committee and in that event, the  

Executive Committee may, by order, appoint an  

Administrator or an Ad-hoc Committee, as the case may  

be, to exercise the powers and perform the functions of  

the Committee for such period as may be specified in the  

order.”  

Rule 28(1)(i), which is sought to be applied to Respondent No.4,  

states as follows:  

“28. Powers of Committee - (1) In an aided institution the  

Committee shall, subject to the provisions of any Grant-in-

aid Scheme or Pay Revision Scheme or any order or  

direction or guide-lines issued by the State Government  

or the Director in connection therewith and in force for the  

time being, have the power –  

(i) to appoint on the recommendation of the West  

Bengal Regional School Service Commission in respect  

of the region concerned, teachers on permanent or  

temporary basis against permanent or temporary  

vacancies, if and when available, within the sanctioned  

strength of teachers and on approval by the Director or

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any Officer authorized by him, such approval being sought  

for within a fortnight from the date of decision of the  

committee in this behalf;”  

Rules 32 and 33 are also important and state as follows:  

“32. Rules not to apply to certain Institutions—Nothing  

in these rules shall apply to the Institutions maintained and  

managed by the State Government, the Union  

Government or the Railway Board or the schools  

managed under the provisions of the St. Thomas’ School  

Act, 1923, (Bengal Act XII of 1923) or to any other  

Institution as may be specified by the State Government  

by order, made in this behalf from time to time.  

33. Power of the State Government to frame further  

rules for certain Institutions—Nothing in these rules  

shall affect the power of the State Government to frame,  

on the application of any Institution or class of Institution  

to which the provisions of Article 26 or Article 30 of the  

Constitution of India may apply, further or other rules for  

the composition, powers, functions of the Managing  

Committee or Committees of such Institution or class of  

Institutions.”  

11. These Rules have since been amended by a notification  

dated 29th August, 2008, as has been noticed hereinabove. And  

Rule 33 has been omitted altogether.    

12. A perusal of the Rules, as they stood prior to the 2008  

amendment, would show that in case the provisions of Article 30 of  

the Constitution apply, further or other rules for the composition,  

powers, functions of the managing committee or committees of  

such institutions or class of institutions would be framed. It is

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admitted, as has been noticed in the judgment of Thakur, J. that no  

such Rules have been framed under Rule 33.  

13. At this juncture, it may be noted that by a letter dated 19th  

April, 1976, Respondent No.4 wrote to the Secretary, West Bengal  

Board of Secondary Education asking that it may be declared as a  

minority community institution and the special constitution for the  

same may be approved on that basis. What is of importance is what  

is stated in paragraph 5(a) and 5(b) of the said letter, which is set  

out hereinbelow:  

“5. The brief History of the said Khalsa High School is as   follows:-  

(a)   In the year 1932 this institution was started in the  

shape of a Khalsa Primary School by the Sikh Community  

living in Calcutta to impart education to their children who  

came from Punjab where they had ample opportunities to  

learn their mother tongue viz: Punjabi and to impart  

religious, ethical and moral training in soothing  

atmosphere.  

(b)  Earlier to this in the year 1930, the late Reverend  

Sant Mastan Singh started a small Pathashala at 573,  

Paddopukur Road, Calcutta, with about twenty children to  

teach them Punjabi, in Gurumukh Script. In 1932, Baba  

Harnam Singh Kaunka was made in charge of that School  

which was becoming popular day by day among the Sikh  

Community. After some time he opened a new School at  

16, Paddapukur Road, Calcutta. By this time the  

population of the Sikhs was increasing in Calcutta. A large  

number of Sikh Children were facing serious difficulties in  

the absence of their own proper School. The urgent need

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of opening a School of their own choice came to the  

forefront and it was unanimously resolved by the Sikhs in  

a congregation to start a Khalsa Primary School without  

any loss of time. The social and religious workers left no  

stone unturned to get a suitable building for this purpose.  

After intense endeavours the building situated at No. 75,  

Bakul Begal Road, Calcutta was acquired on rent to start  

with. Thus, Khalsa Primary School was inaugurated on  

the 1st November, 1933, by Sardar B.R. Singh, Head of  

Eastern Railway. He donated a handsome amount to the  

School on this pious occasion. Baba Harnam Singh  

Kanuka threw his lot with this venture of the Sikh  

Community in toto.”  

14. By a letter dated 7th May, 1982 from the Secretary, West  

Bengal Board of Secondary Education to the Respondent No.4, a  

special constitution of the managing committee of the school was  

set up as follows:  

1. Representative (s) of :-  

(i) Bara Sikh Sangat        1(one)  

(ii) Sri Guru Singh Sabha       1(one)  

(iii)Gurudwara Sant Kutia       1(one)  

2. Guardians’ representative (to be elected) 4  

3. Members of the teaching & non-teaching  

Staff (to be jointly elected)      4(3+1)  

4. P.I.E. (as per provisions of the amended rules 1  

5. Head of the institution (ex-officio)   1  

6. Departmental Nominee                     1       

                      14  

15. It is obvious on a reading of this document that whereas Rule  

6 required only one representative of the Sikh community to be on

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the Management Board, there are three representatives appointed.    

Equally, whereas Rule 6 requires that there be six guardian  

representatives to be elected, only four are provided for by this  

letter. Thus, it cannot be said that by acceptance of this letter,  

Respondent No.4 has, in any manner, unequivocally waived its  

right to be treated as a minority institution. On the contrary, the  

application dated 19th April, 1976, was to recognise it as a minority  

institution, and merely because Rule 8(3) of the Rules was  

purportedly applied, it does not mean that the minority character of  

the institution was not kept in mind while framing the special  

constitution for future management of the school. On facts,  

therefore, it is difficult to appreciate how the Respondent No.4 can  

be said to have waived its right to be treated as a linguistic minority  

institution set up by a linguistic minority, namely, the Sikhs in the  

State of West Bengal.    

16. It is important at this juncture to first set out Article 30 of the  

Constitution of India.  Article 30(1) states:  

“30. Right of minorities to establish and administer  educational institutions -   

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

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17. The historical reasons for enacting Article 30(1) have been  

set out in some detail in the judgment of Shelat, J. and Grover, J.  

in Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 as  

follows:   

“535-A - It may be recalled that as regards the minorities  the Cabinet Mission had recognised in their report to the  British Cabinet on May 6, 1946 only three main  communities; general, Muslims and Sikhs. General  community included all those who were non- Muslims or  non-Sikhs. The Mission had recommended an Advisory  Committee to be set up by the Constituent Assembly  which was to frame the rights of citizens, minorities, tribals  and excluded areas. The Cabinet Mission statement had  actually provided for the cession of sovereignty to the  Indian people subject only to two matters which were: (1)  willingness to conclude a treaty with His Majesty's  Government to cover matters arising out of transfer of  power and (2) adequate provisions for the protection of  the minorities. Pursuant to the above and paras 5 and 6  of the Objectives Resolution the Constituent Assembly set  up an Advisory Committee on January 24, 1947. The  Committee was to consist of representatives of muslims,  the depressed classes or the scheduled castes, the Sikhs,  Christians, Parsis, Anglo-Indians, tribals and excluded  areas besides the Hindus. As a historical fact it is safe to  say that at a meeting held on May 11, 1949 a resolution  for the abolition of all reservations for minorities other than  the scheduled castes found whole hearted support from  an overwhelming majority of the members of the Advisory  Committee. So far as the scheduled castes were  concerned it was felt that their peculiar position would  necessitate special reservation for them for a period of ten  years. It would not be wrong to say that the separate  representation of minorities which had been the feature of  the previous Constitutions and which had witnessed so  much of communal tension and strife was given up in  favour of joint electorates in consideration of the  guarantee of fundamental rights and minorities’ rights

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which it was decided to incorporate into the new  Constitution.”  

(Emphasis supplied)  

18. This was further fleshed out in the judgment of Khanna, J. in  

Ahmedabad St. Xavier’s College Society v. State of Gujarat  

(1975) 1 SCR 173 as follows:  

“Before we deal with the contentions advanced before us  and the scope and ambit of Article 30 of the Constitution,  it may be pertinent to refer to the historical background.  India is the second-most populous country of the world.  The people inhabiting this vast land profess different  religions and speak different languages. Despite the  diversity of religion and language, there runs through the  fabric of the nation the golden thread of a basic innate  unity. It is a mosaic of different religions, languages and  cultures. Each of them has made a mark on the Indian  polity and India today represents a synthesis of them all.  The closing years of the British rule were marked by  communal riots and dissensions. There was also a feeling  of distrust and the demand was made by a section of the  Muslims for a separate homeland. This ultimately resulted  in the partition of the country. Those who led the fight for  independence in India always laid great stress on  communal amity and accord. They wanted the  establishment of a secular State wherein people  belonging to the different religions should all have a  feeling of equality and non-discrimination. Demand had  also been made before the partition by sections of people  belonging to the minorities for reservation of seats and  separate electorates. In order to bring about integration  and fusion of the different sections of the population, the  framers of the Constitution did away with separate  electorates and introduced the system of joint electorates,  so that every candidate in an election should have to look  for support of all sections of the citizens. Special  safeguards were guaranteed for the minorities and they  were made a part of the fundamental rights with a view to  instil a sense of confidence and security in the minorities.

20    

Those provisions were a kind of a Charter of rights for the  minorities so that none might have the feeling that any  section of the population consisted of first-class citizens  and the others of second-class citizens. The result was  that minorities gave up their claims for reservation of  seats.  

xxx xxx xxx   

A liberal, generous and sympathetic approach is reflected  in the Constitution in the matter of the preservation of the  right of minorities so far as their educational institutions  are concerned… The minorities are as much children of  the soil as the majority and the approach has been to  ensure that nothing should be done as might deprive the  minorities of a sense of belonging, of a feeling of security,  of a consciousness of equality and of the awareness that  the conservation of their religion, culture, language and  script as also the protection of their educational  institutions is a fundamental right enshrined in the  Constitution. The same generous, liberal and sympathetic  approach should weigh with the courts in construing  Articles 29 and 30 as marked the deliberations of the  Constitution-makers in drafting those articles and making  them part of the fundamental rights. The safeguarding of  the interest of the minorities amongst sections of  population is as important as the protection of the interest  amongst individuals of persons who are below the age of  majority or are otherwise suffering from some kind of  infirmity. The Constitution and the laws made by civilised  nations, therefore, generally contain provisions for the  protection of those interests. It can, indeed, be said to be  an index of the level of civilisation and catholicity of a  nation as to how far their minorities feel secure and are  not subject to any discrimination or suppression.”  

(Emphasis supplied)  

19. This was reiterated in the concurring judgment of Quadri, J.  

in T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC  

481 as follows:

21    

“301. …The founding fathers of the Constitution were alive  to the ground realities and the existing inequalities in  various sections of the society for historical or other  reasons and provided for protective discrimination in the  Constitution with regard to women, children, socially and  educationally backward classes of citizens, Scheduled  Castes and Scheduled Tribes by enabling the State to  make special provision for them by way of reservation as  is evident from clauses (3) and (4) of Article 15 and  clauses (4) and (4-A) of Article 16 of the Constitution. The  apprehensions of religious minorities and their demand for  separate electorates, were settled by providing freedom  of conscience and free profession, practise and  propagation of religion for all the citizens under Articles  25, 26 and 28 which take care of the religious rights of  minorities equally; by special provisions their right to  conserve a distinct language, script or culture is  guaranteed as a fundamental right in Article 29; further, all  minorities, whether based on religion or language, are  conferred an additional fundamental right to establish and  administer educational institutions of their choice as  enshrined in Article 30 of the Constitution. The right under  Article 30(1) is regarded so sacrosanct by Parliament in  its constituent capacity that when by operation of the law  of the land — Land Acquisition Act — compensation  awarded for acquisition of a minority educational  institution was to result in restricting or abrogating the right  guaranteed under clause (1) of Article 30, it by the  Constitution (Forty-fourth) Amendment Act inserted  clause (1-A) in Article 30. It provides that Parliament in the  case of a Central legislation or a State Legislature in the  case of State legislation shall make a specific law to  ensure that the amount payable to the minority  educational institutions for the acquisition of their property  will not be such as will in any manner impair their  functioning. A Constitution Bench of this Court in  interpreting clause (1-A) of Article 30 in Society of St.  Joseph's College v. Union of India [(2002) 1 SCC 273]  observed thus: (SCC p. 278, para 7)  

“7. Plainly, Parliament in its constituent capacity  apprehended that minority educational institutions  could be compelled to close down or curtail their

22    

activities by the expedient of acquiring their property  and paying them inadequate amounts in exchange. To  obviate the violation of the right conferred by Article 30  in this manner, Parliament introduced the safeguard  provision in the Constitution, first in Article 31 and then  in Article 30.”  

20. The Nine Judge Bench in St. Xavier’s (supra), by a majority  

of 7:2, held that Section 33-A(1)(b) of the Gujarat University Act,  

1949 as amended by the Gujarat University (Amendment) Act,  

1972, would not apply to minority institutions.  Section 33-A(1)(b) of  

the said Act is set out as follows:  

“33-A. (1) Every college (other than a Government college  or a college maintained by the Government) affiliated  before the commencement of the Gujarat University  (Amendment) Act, 1972 (hereinafter in this section  referred to as ‘such commencement’)—    xxx xxx xxx    (b) that for recruitment of the Principal and members of  the teaching staff of a college there is a selection  committee of the college which shall include—  

(1) in the case of recruitment of the Principal, a  representative of the University nominated by the Vice- Chancellor, and  

(2) in the case of recruitment of a member of the teaching  staff of the college, a representative of the University  nominated by the Vice-Chancellor and the Head of the  Department, if any, concerned with the subject to be  taught by such member.”  

21. Ray, C.J. adverted to the aforesaid provision and stated that  

at the core of the fundamental right of Article 30 is the right to  

administer which includes the right of the minority institutions to

23    

choose its teachers (see pages 194 and 196). Having held this, the  

learned Chief Justice set out the argument of the Intervenors thus:  

“The provisions contained in Section 33-A(1)(b) of the Act  were not challenged by the petitioners. The interveners  challenged those provisions. The settled practice of this  Court is that an intervener is not to raise contentions which  are not urged by the petitioners. In view of the fact that  notices were given to minority institutions to appear and  those institutions appeared and made their submissions a  special consideration arises here for expressing the views  on Section 33-A(1)(b) of the Act. The provisions contained  in Section 33-A(1)(b) of the Act are that for the recruitment  of the Principal and the members of the teaching staff of  a college there is a selection committee of the college  which shall consist, in the case of the recruitment of a  Principal, of a representative of the university nominated  by the Vice-Chancellor and, in the case of recruitment of  a member of the teaching staff of the college, of a  representative of the university nominated by the Vice- Chancellor and the Head of the Department if any for  subjects taught by such persons. The contention of the  interveners with regard to these provisions is that there is  no indication and guidance in the Act as to what types of  persons could be nominated as the representative. It was  suggested that such matters should not be left to unlimited  power as to choice. The provisions contained in Section  33-A(1)(b) cannot therefore apply to minority institutions.”  

This argument was accepted stating that the said Section cannot,  

therefore, be applied to minority institutions as it would otherwise  

violate the fundamental right contained in Article 30(1).    

22.  This view was concurred in by Khanna, J. as follows:  

“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

24    

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). In the case of Rev. Father W.  Proost this Court while dealing with Section 48-A of the  Bihar Universities Act observed that the said provision  completely took away the autonomy of the governing body  of the college and virtually vested the control of the college  in the University Service Commission. The petitioners in  that case were, therefore, held entitled to the protection of  Article 30(1) of the Constitution. The provisions of that  section have been referred to earlier. According to the  section, subject to the approval of University appointment,  dismissals, removals, termination of service or reduction  in rank of teachers of an affiliated college not belonging to  the State Government would have to be made by the  governing body of the college on the recommendation of  the University Service Commission. The section further  provided that the said Commission would be consulted by  the governing body of a college in all disciplinary matters  affecting teachers of the college and no action would be  taken against or any punishment imposed upon a teacher  of a college otherwise than in conformity with the findings  of the Commission.”  

Likewise, Jagan Mohan Reddy, J. also held Section 33-A(1)(b)  

inapplicable to minority institutions. The concurring judgment of  

Mathew, J. and Chandrachud, J. agreed with the learned Chief  

Justice that the aforesaid provision could not possibly apply to a  

minority institution as follows:

25    

“It is upon the principal and teachers of a college that the  tone and temper of an educational institution depend. On  them would depend its reputation, the maintenance of  discipline and its efficiency in teaching. The right to  choose the principal and to have the teaching conducted  by teachers appointed by the management after an overall  assessment of their outlook and philosophy is perhaps the  most important facet of the right to administer an  educational institution. We can perceive no reason why a  representative of the University nominated by the Vice- Chancellor should be on the Selection Committee for  recruiting the Principal or for the insistence of head of the  department besides the representative of the University  being on the Selection Committee for recruiting the  members of the teaching staff. So long as the persons  chosen have the qualifications prescribed by the  University, the choice must be left to the management.  That is part of the fundamental right of the minorities to  administer the educational institution established by  them.”  

23. A reading of the aforesaid judgment would leave no manner  

of doubt that if Respondent No.4 is a minority institution, Rule 28 of  

the Rules for Management of Recognized Non-Government  

Institutions (Aided and Unaided) 1969, cannot possibly apply as  

there would be a serious infraction of the right of Respondent No.4  

to administer the institution with teachers of its choice.    

24. We now go to the question as to whether it is necessary that  

there be a declaration as to status of the minority institutions by the  

competent authority under the West Bengal Board of Secondary  

Education Act, 1963 before it can claim the status of being a  

minority institution. We have already noticed that the competent

26    

authorities set up by the aforesaid Act do not give any power to  

recognise a minority institution. For this reason, it is difficult to agree  

with the conclusion stated in paragraph 40 of judgment of  

Banumathi, J.  Further, the letter dated 19th April, 1976 would show  

that Respondent No.4 was started as a primary school by the Sikh  

community living in Kolkata to impart education to their children  

who came from Punjab, so that they may learn their mother tongue  

and religion, ethics etc.  As a matter of fact, this aspect of the matter  

is no longer res integra.   

25.  In N. Ammad v. Emjay High School (1998) 6 SCC 674, this  

Court held:  

“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

27    

can claim protection only after the Government declared  it as a minority school on 2-8-1994.”  

This statement of the law was then followed by Corporate  

Educational Agency v. James Mathew (2017) 15 SCC 595 as  

follows:  

“7. As far as the validity of the declaration of minority  

status is concerned, this Court in N. Ammad v. Emjay  

High School [N. Ammad v. Emjay High School, (1998) 6  

SCC 674 : 1 SCEC 732] has held that the certificate of the  

declaration of minority status is only a declaration of an  

existing status. Therefore, there is no question of  

availability of the status only from the date of declaration.  

What is declared is a status which was already in  

existence.   

xxx xxx xxx  

10. Chapter IV deals with functions and powers of the  

Commission. Under Section 11(f), the Commission has  

been vested with the power rather the mandate to decide  

all questions relating to the status of any institution as a  

minority educational institution and declare its status as  

such. Section 11 of the Act is quoted hereunder:  

“11. Functions of Commission.—Notwithstanding  

anything contained in any other law for the time being in  

force, the Commission shall—  

(a) advise the Central Government or any State  

Government on any question relating to the education of  

minorities that may be referred to it;  

(b) enquire, suo motu, or on a petition presented to it by  

any minority educational institution, or any person on its  

behalf into complaints regarding deprivation or violation of  

rights of minorities to establish and administer educational  

institutions of their choice and any dispute relating to

28    

affiliation to a University and report its finding to the  

appropriate Government for its implementation;  

(c) intervene in any proceeding involving any deprivation  

or violation of the educational rights of the minorities  

before a court with the leave of such court;  

(d) review the safeguards provided by or under the  

Constitution, or any law for the time being in force, for the  

protection of educational rights of the minorities and  

recommend measures for their effective implementation;  

(e) specify measures to promote and preserve the  

minority status and character of institutions of their choice  

established by minorities;  

(f) decide all questions relating to the status of any  

institution as a minority educational institution and declare  

its status as such;  

(g) make recommendations to the appropriate  

Government for the effective implementation of  

programmes and schemes relating to the minority  

educational institutions; and  

(h) do such other acts and things as may be necessary,  

incidental or conducive to the attainment of all or any of  

the objects of the Commission.”  

(emphasis supplied)  

11. Therefore, after the introduction of the National  

Commission for Minority Educational Institutions Act,  

2004, it is also within the jurisdiction and mandate of the  

National Commission to issue the certificate regarding the  

status of a minority educational institution. Once the  

Commission thus issues a certificate, it is a declaration of  

an existing status.”  

26. We have held that it cannot be said that Respondent No.4 is,  

in any manner, estopped from claiming its minority status on the  

facts of this case.  Quite apart from this, it is settled law that the

29    

fundamental right under Article 30 cannot be waived (See St.  

Xavier’s (supra) at pages 260 to 262 per Mathew, J.; Olga Tellis  

v. Bombay Municipal Corporation, (1985) 3 SCC 545 and 569 to  

571.)  In the recent judgment in K.S. Puttaswamy v. Union of  

India (2017) 10 SCC 1, Chandrachud, J. has echoed this sentiment  

as follows:  

“126. In Behram Khurshid Pesikaka v. State of Bombay  (1955) 1 SCR 13: AIR 1955 SC 123 : 1955 Cri LJ 215,  Mahajan, C.J. speaking for the Constitution Bench, noted  the link between the constitutional vision contained in the  Preamble and the position of the fundamental rights as a  means to facilitate its fulfilment. Through Part III embodies  fundamental rights, this was construed to be a part of the  wider notion of securing the vision of justice of the  Founding Fathers and, as a matter of doctrine, the rights  guaranteed were held not to be capable of being waived.  Mahajan C.J., observed (AIR p. 146, para 52 : SCR pp.  653-54)   

“52. …We think that the rights described as  fundamental rights are a necessary consequence of the  declaration in the Preamble that the people of India  have solemnly resolved to constitute India into a  sovereign democratic republic and to secure to all its  citizens justice, social, economic and political; liberty of  thought, expression, belief, faith and worship; equality  of status and of opportunity.  

These fundamental rights have not been put in the  Constitution merely for individual benefit, though  ultimately they come into operation in considering  individual rights. They have been put there as a matter  of public policy and the doctrine of waiver can have no  application to provisions of law which have been  enacted as a matter of constitutional policy” ”

30    

27. This being the law laid down by this Court, it is clear that both  

the reasons given by Banumathi, J. cannot be said to be correct,  

as per the law laid down by this Court.  

28. Shri Chakraborty, learned Senior Advocate appearing on  

behalf of the State, raised an argument based on Article 350B.   The  

said Article reads as follows:  

“350B. Special Officer for Linguistic Minorities   

(1) There shall be a Special Officer for linguistic minorities  to be appointed by the President.   

(2) It shall be the duty of the Special Officer to investigate  all matters relating to the safeguards provided for linguistic  minorities under this Constitution and report to the  President upon those matters at such intervals as the  President may direct, and the President shall cause all  such reports to be laid before each House of Parliament,  and sent to the Governments of the States concerned.”  

29. This Article only sets up a Special Officer for linguistic  

minorities, to be appointed by the President, whose duty it is to  

investigate matters relating to safeguards provided for linguistic  

minorities and send reports to the President of India, which reports  

the President shall cause to be laid before each House of  

Parliament, and send to the Governments of the States concerned.    

Even a cursory reading of this Article cannot possibly lead to the  

conclusion that absent a report by the Special Officer, no linguistic

31    

minority can claim protection as such under Article 30(1) of the  

Constitution.  

30. In point of fact, in D.A.V. College v. State of Punjab (1971)  

Supp. SCR 688, this Court held that where the challenge is to a  

State law, linguistic minority status would have to be determined  

State-wise (see page 696). This view has been reiterated by the  

Eleven Judge Bench in T.M.A. Pai Foundation (supra) (see pages  

552, 553 and 587).    

31. There can be no doubt that qua the State of West Bengal,  

Sikhs are a linguistic minority vis-à-vis their language, namely,  

Punjabi, as against the majority language of the State, which is  

Bengali. The argument of the learned counsel appearing on behalf  

of the State that the school is, in fact, teaching in the Hindi medium  

is neither here nor there. What is important is that the fundamental  

right under Article 30 refers to the “establishment” of the school as  

a linguistic minority institution which we have seen is very clearly  

the case, given paragraphs 5(a) and 5(b) of letter dated 19th April,  

1976. Therefore, the medium of instruction, whether it be Hindi,  

English, Bengali or some other language would be wholly irrelevant  

to discover as to whether the said school was founded by a  

linguistic minority for the purpose of imparting education to

32    

members of its community. This argument also, therefore, must be  

rejected.   

32. Seeing the writing on the wall, the learned Senior Advocate  

appearing for the State made a fervent plea that we should refer  

this matter to the Constitution Bench, following the order in  

Shiromani Gurudwara Prabandhak Committee (supra) dated  

18th November, 2010.  

33. This matter arose out of a judgment of the High Court of  

Punjab and Haryana dated 17th December, 2007, as per which two  

notifications were issued under the Punjab Private Health Sciences  

Educational Institutions (Regulation of Admission, Fixation of Fee  

and Making of Reservation) Act, 2006, by which the aforesaid Sikh  

institutions were declared to be minority institutions within the State  

of Punjab. The High Court had held, following this Court’s judgment  

in Bal Patil v. Union of India (2005) 6 SCC 690, that the Sikhs  

were, in fact, population-wise the majority community in the State  

of Punjab, as a result of which the two notifications were struck  

down as being violative of Article 14 of the Constitution of India. It  

is in this backdrop that, by an order dated 18th November, 2010, a  

Division Bench of this Court referred this matter to be heard along  

with other matters by a Constitution Bench. The other matter

33    

concerned Brahmo Samaj Education Society v. State of West  

Bengal, (2004) 6 SC 224, in which a review petition was allowed  

and directed to be heard by a Constitution Bench.  In the aforesaid  

case, the challenge that was raised was grounded on Article  

19(1)(g) of the Constitution of India and was not directly related to  

Article 30 of the Constitution of India. Obviously, this reference  

order is on different facts and would not avail the respondent State  

in the present case.  

34. As a result, we are of the view that the judgment of Thakur,  

J. is correct in law.  Consequently, the judgment and order of the  

learned Single Judge of the Calcutta High Court is correct, and that  

of the Division Bench of the Calcutta High Court is set aside. The  

appeals are, accordingly, allowed with no order as to costs.  

      …………………………J.                                              (R.F. Nariman)             …………………………J.                                              (R. Subhash Reddy)             …………………………J.   

New Delhi      (Surya Kant)  September 25, 2019.