Calcutta High Court (Appellete Side)
Arya Samaj vs State Of West Bengal & Ors on 1 March, 2011
Author: Dipankar Datta
Bench: Dipankar Datta
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IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
Present : The Hon'ble Justice Dipankar Datta
W.P. No. 1163 of 2008
Arya Samaj, Kolkata & ors.
Versus
State of West Bengal & ors.
with
W.P. No.30691 (W) of 2008
Arbind Kumar Dubey
Versus
State of West Bengal & ors.
For the petitioners : Mr. Subir Sanyal
[in W.P. 1163 of 2008] Mr. Sutirtha Das
For the respondents 1 to 4 : Mr. Krishna Nanda Mukhopadhyay
For the respondents 5 to 10 : Mr. Tapabrata Chakraborty For the petitioner : Mrs. Santi Das [in W.P. 30691 (W) of 2008] Mrs. Sumana Chakraborty For the respondents 1 to 3 : Mr. P.S. Deb Barman For the respondents 4 and 5 : Mr. Tapabrata Chakraborty For the respondents 6 and 7 : Mr. P.N. Palit For the respondents 8 and 9 : Mr. P.S. Bhattacharya Mr. S.S. Koley Hearing concluded on : July 1, 2010 Judgment on : March 1, 2011 2
1. W.P. 1163 of 2008 dated July 1, 2008, is at the instance of Arya Samaj and its Secretary as well as by the Managing Committee of Raghumal Arya Vidyalaya (hereafter the said Institution) and the Secretary thereof.
2. It has been claimed therein that the said Institution is a minority institution. The State Government had accepted the said Institution as a minority institution by granting "Special Rules for the management of Secondary Schools established and run by Arya Samaj and/or Gurukul Vidyalaya Trust, under the aegis of Arya Pratinidhi Sabha of the State (Representative Body of Arya Samajes in the State)" (hereafter the Special Rules). The Special Rules were framed in exercise of power conferred by Rule 33 of the Management of Recognised Non-Government Institutions (Aided and Unaided) Rules, 1969 (hereafter the Management Rules) on the application of Arya Pratinidhi Sabha, Bengal and Assam on behalf of a class of institutions to which provisions of Article 30 of the Constitution applied. It is also claimed in the writ petition that vide paragraph 7 of the Special Rules, power had been conferred on the school committee of any school or institution run by Arya Pratinidhi Sabha of the State through its local unit of Arya Samaj to appoint employees, both permanent and temporary, salaried or honorary. In view thereof, and particularly having regard to the provisions of Section 15 of the West Bengal School Service Commission Act, 1997 (hereafter the SSC Act) laying down that provisions thereof would not apply, inter alia, to a school established and administered by a minority, whether based on religion or language, the West Bengal Central School Service Commission (hereafter the Central Commission) lacks power and authority to recommend any candidate for filling up the vacant post of Headmaster of the said Institution. It was, however, admitted in the writ petition that the Managing Committee of the said Institution had, on a mistaken notion, resolved in its meeting held on February 2, 2003 to approach the Central Commission for recommending a candidate for appointment on the post of Headmaster. Later, the said resolution was cancelled by a further resolution dated December 9, 2007 of the Managing Committee whereby it was further resolved that appointment on the post of Headmaster of the 3 said Institution shall be made by the Managing Committee as per procedure after receiving prior permission from the District Inspector of Schools (S.E.), Kolkata (hereafter the DIoS) vide paragraph 7 of the Special Rules. Request made to the Central Commission and the West Bengal Regional School Service Commission, Southern Region (hereafter the Regional Commission) to refrain from taking steps to fill up the post of Headmaster of the said Institution was not heeded resulting in presentation of the writ petition.
3. The principal relief claimed in the writ petition is for a declaration to the effect that the Central Commission, the Regional Commission, and their officers, being the respondents 5 to 10, have no power and authority in law to recommend any candidate for appointment to the post of Headmaster of the said Institution, which is a minority institution. As and by way of incidental relief, it has been claimed that the vacancy on the post of Headmaster of the said Institution ought to be delisted from the vacancy list of Headmasters in different schools, prepared and maintained by the Central Commission, in connection with VIIIth Regional Level Selection Test for Headmasters, 2007 and for quashing any decision that has been taken by the Central Commission to recommend any candidate for such appointment. Interim relief was prayed for, on the following term :
"e) To pass an interim order restraining the respondents their men, agents, successors, survivors, representatives or assigns and/or each one of them from recommending any name of candidate for appointment to the post of Headmaster of the said school of the petitioners till the disposal of the writ petition."
4. During the pendency of the writ petition, the petitioners had received a recommendation. The Assistant Secretary of the Regional Commission issued the same vide Memo dated September 5, 2008, in favour of one Sri Ajoy Kumar Yadav (hereafter Sri Yadav), for the purpose of filling up the vacant post of Headmaster of the said Institution. The petitioners brought such recommendation on record by filing a supplementary affidavit dated September 11, 2008.
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5. A learned Judge of this Court considered the writ petition on September 11, 2008. The supplementary affidavit was accepted and the writ petition was directed to appear as "Court Application" on September 15, 2008.
6. The writ petition was considered by the said learned Judge on September 19, 2008.
The recommended candidate, Sri Yadav, was directed to be impleaded as additional respondent. Leave to amend the cause title of the writ petition in course of the day was granted. Direction for exchange of affidavits was passed and it was observed that "(A)ction taken by the respondents shall abide by the result of the writ application". Learned advocate on record for the petitioner was directed to serve copy of the writ petition together with the supplementary affidavit and the gist of the order on the added respondent by speed post in course of the week.
7. It does not appear from the cause title of the writ petition that the same was amended in terms of leave granted by the learned Judge. Ordinarily, in respect of matters filed on the Original Side it is for the department to effect amendment by impleading the added respondent. However, since leave to amend the cause title in course of the day was granted, it would not be unreasonable to presume that it is the learned advocate on record for the petitioner who was to effect amendment by impleading Sri Yadav. That was not done, at the peril of the petitioners.
8. Feeling aggrieved by the order dated September 19, 2008, the petitioners preferred a writ appeal before the Hon'ble Division Bench. By an order dated November 20, 2008, the Hon'ble Division Bench was pleased to allow the appeal by granting interim order in terms of prayer (e) of the writ petition quoted (supra).
9. W.P. 30691 (W) of 2008 is at the instance of Arbind Kumar Dubey (hereafter Sri Dubey) who had participated in a process initiated by the Regional Commission for selection of suitable candidates for appointment as Assistant Teachers in Pure Science (pass category) in different schools within its jurisdiction. By dint of his performance, Sri Dubey was selected and the Assistant Secretary of the Regional Commission, vide Memo dated September 17, 2008, recommended him for appointment on the vacant 5 post of Assistant Teacher in Pure Science (pass category) in the said Institution. Despite receipt of the recommendation, the Managing Committtee of the said Institution did not issue offer of appointment in favour of Sri Dubey. He complained to the Principal Secretary to the Govt. of West Bengal, School Education Department, the Regional Commission, and the Central Commission as well as to the DIoS. The Assistant Secretary of the Regional Commission vide memo dated October 24, 2008 requested the Secretary of the said Institution to issue letter of appointment without any delay. However, such request also did not yield any positive result. Feeling aggrieved, Sri Dubey approached this Court with the writ petition dated December 8, 2008, praying for a direction on the Regional Commission to withdraw and/or cancel the recommendation dated September 17, 2008 and to recommend his name to any other appropriate vacancy immediately.
10. The writ petition of Sri Dubey first came up for consideration before a learned Judge of this Court on February 10, 2009. The fact of pendency of W.P. 1163 of 2008 together with the subsisting interim order passed by the Hon'ble Division Bench on November 20, 2008 was noticed. Both the writ petitions were directed to be enlisted on February 18, 2009. An interim order was passed restraining the authorities of the said Institution from filling up the post of Assistant Teacher in question on permanent basis. The interim order was thereafter extended on February 23, 2009. On March 2, 2009, the writ petition was admitted. Direction was passed for exchange of affidavits and the writ petition was directed to be enlisted as "For Orders" on March 30, 2009.
11. Sri Dubey's writ petition came up for consideration before me on August 27, 2009. I noticed the earlier order dated February 10, 2009 referred to above. Accordingly, I made an order directing analogous hearing of both the writ petitions.
12. In the writ petition filed by Sri Dubey, an application for addition of party was filed by Sri Tarun Kumar Das (being the General Secretary of Arya Pratinidhi Sabha, Bengal) and Sri Dipak Arya (being the Secretary, Arya Samaj, Kolkata). 6
13. The writ petitions were taken up for consideration on April 1, 2010. For reasons indicated in the order passed that day, I had directed that appointment letter in favour of Sri Dubey should be issued by the said Institution immediately. However, it was observed that the letter of appointment should contain indication that the offer was on adhoc basis and subject to result of the petitions under consideration as well as a writ petition which had been filed in 1976, if at all the same was alive (to be referred at a later part of this judgment). I also observed that Sri Dubey shall not be entitled to approval of his service without obtaining leave of the Court but that the question as to whether he would be entitled to salary or not shall be decided on the next date. At the same time, I allowed the application for addition of party by the said order. The applicants have since been impleaded as respondents 8 and 9.
14. On April 8, 2010, it was submitted on behalf of Sri Dubey that he had not been issued offer of appointment. However, Mr. Palit, learned advocate appearing for the said Institution and its Secretary (respondents 6 and 7) submitted that the offer of appointment would be issued by that date. Considering the fact that better particulars in respect of the writ petition filed in 1976 [C.R. 14143 (W) 1976] and subsequent proceedings that reached the Hon'ble Supreme Court were referred to by the parties, they were again granted liberty to exchange their affidavits and hearing stood adjourned.
15. By further order dated April 22, 2010 I had recorded that though I intended to dispose of the writ petitions at an early date having regard to the fact that Sri Dubey had been discharging his duty without salary, hearing had to be adjourned on the prayer of Mr. Bhattacharya, learned advocate for the respondents 8 and 9 (added respondents). However, it was directed that Sri Dubey shall be entitled to salary and allowances in accordance with law. The DIoS was directed to take appropriate steps for disbursement of funds to the authority of the said Institution for meeting his salary and allowances.
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16. Before I advert to the rival submissions, certain other factual aspects need consideration. The fact that the Special Rules were granted by the State Government to the class of schools and institutions established and run by Arya Samaj has been noticed above. It has come to light from the counter affidavit filed on behalf of the respondents 1 to 3 in Sri Dubey's writ petition that the Government, by an order contained in notification dated November 10, 1976, rescinded the Special Rules. Such action of the Government formed the subject matter of challenge in a writ petition by Arya Samaj on which C.R. 14143 (W) 1976 was issued by this Court. Certain interim orders directing maintenance of status quo were passed on December 3, 1976 and September 29, 1977. These orders, however, have not been placed before me due to its non-availability. Alleging violation of the said orders, a rule for contempt being C. R. No. 5560(W) of 1978 was obtained. The said rule, however, stood disposed of by an order dated February 26, 1980 holding that contempt had not been committed.
17. Thereafter, in view of delay in disposal of C.R. 14143 (W) of 1976, a transfer petition was filed in the Hon'ble Supreme Court of India on or about August 25, 1987 by the Arya Pratinidhi Sabha. It was registered as Transfer Petition (C) No.481 of 1987. In connection therewith, an interlocutory petition being C.M.P. No.15311 of 1988 was filed praying for, inter alia, order to allow the Arya Pratinidhi Sabha to reconstitute the Managing Committees of all Arya Samaj schools run under the Sabha and also for a direction upon the Director of School Education, West Bengal and/or the respective District Inspectors of Schools to nominate their officers in terms of Rule 3(3)(f) of the Special Rules.
18. Transfer Petition (C) No.481 of 1987 was admitted by the Hon'ble Supreme Court on January 19, 1990 and the same was renumbered Transferred Case No.26 of 1990. C.M.P No.15311 of 1988 was disposed of by the Hon'ble Supreme Court by order dated July 22, 1996, which reads as follows :
"Mr. H.K. Puri, learned counsel for the State of West Bengal says that the State would have no objection to the petitioner 8 appointing a Managing Committee to run the affairs of the Institution but without prejudice to the rights of the State in maintaining that the petitioner is not a minority institution. C.M.P. is disposed of accordingly."
19. It is claimed in such counter affidavit that a bare perusal of the aforesaid order reveals that the State Government did not accept any school or institution, run and managed by the Arya Samaj under the aegis of the Arya Pratinidhi Sabha including the said Institution as minority institution to be governed by the Special Rules and that the Arya Samaj, under the aegis of Arya Pratinidhi Sabha, accepted the contention of the State Government all these years and, therefore, the contention that the SSC Act is not applicable in respect of recruitment of teaching staff in the said Institution is absolutely not tenable.
20. Transferred Case (C) No.26 of 1990 was ultimately disposed of by the Hon'ble Supreme Court on March 25, 2003 by passing the following order:
"This transferred case is disposed of in terms of the decision of a Constitution Bench of this Court in W.P. No.317 of 1993 - T.M.A. PAI Foundation & ors. etc. vs. State of Karnataka & ors. and connected batch decided on October 31, 2002."
21. The decision of the Constitution Bench in W.P. No.317 of 1993 - TMA PAI & ors. vs. State of Karnataka & ors. is the decision reported in (2002) 8 SCC 481.
22. One other notification of some significance ought to be referred to at this stage. It is a notification dated September 15, 2008 issued by the Secretary to the Government of West Bengal, School Education Department, published in the Kolkata Gazette, notifying for general information of all concerned the amendments to the Management Rules. The salient features thereof are deletion of Rule 33 and substitution of Rule 32. After substitution, Rule 32 reads as follows :
"32-Rules not to apply to certain Institutions.- Nothing in these rules shall apply to -
a) the Institutions maintained and managed by the State Government, the Central Government or the Railway Board; or
b) The Institutions managed under the provisions of he St. Thomas' School Act, 1923 (Ben. Act XII of 1923); or 9
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 Ben. Act XVI of 1996); or
d) Such other Institutions as the State Government may, by order specify.
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."
23. Ms. Santi Das, learned advocate representing Sri Dubey, contended that irrespective of the dispute in respect of minority status claimed by the said Institution and the decision of the Court on such dispute, he should not be made to suffer. He had responded to the advertisement issued by the Central Commission and by dint of his performance had been selected by the Regional Commission, whereafter recommendation was issued in his favour. It is evident from the records that the Managing Committee of the said Institution itself had transmitted vacancy report to the DIoS pursuant whereto the Regional Commission was approached for selecting and recommending a suitable candidate. Sri Dubey has been in the family way and if at all the Court is of the opinion that the Managing Committee of the said Institution is not obliged to offer appointment to any candidate recommended by the Central Commission or the Regional Commission, the Regional Commission may be directed to accommodate Sri Dubey in any other vacancy in schools within its jurisdiction.
24. Mr. Chakrabarty, learned advocate appearing for the Central Commission and the Regional Commission invited my attention to the Bench decision of this Court in Kiran Subbha & ors. vs. State of West Bengal & ors. reported in 2008 (2) CHN 530 to contend that minority status cannot be inferred and/or presumed automatically and that it is either for the Central Government or the State Government to declare a particular group as belonging to a minority, either based on religion or language. He further contended that selection of Sri Yadav and Sri Dubey respectively were made by 10 the Central Commission and Regional Commission based on vacancy reports furnished by the DIoS. Such vacancy reports had been prepared on the basis of requests furnished by the Managing Committee of the said Institution. The ball was set rolling by the authorities of the said Institution itself with the requisitions and now that the selection had been completed and the candidates recommended, the petitioners in W.P. 1163 of 2008 and the respondents 6 to 9 in W.P. 30691 (W) of 2008 have no legal right to claim that the candidates recommended by the Central Commission and the Regional Commission have no legitimate claim for appointment on the vacant teaching posts in the said Institution and may be considered for appointment elsewhere.
25. Mr. Deb Barman, learned advocate representing the respondents 1 to 3, i.e. the State respondents in Sri Dubey's writ petition, placed the counter affidavit to contend that the notification dated November 10, 1976 rescinding the Special Rules stands, the same not having been interdicted by the Hon'ble Supreme Court. It is, therefore, futile to contend that the respondents 6 to 9 on the basis of the Special Rules continue to enjoy the power to appoint staff in the said Institution. It was also his contention that the said Institution having sent requisitions to the DIoS who in turn forwarded the vacancy reports to the Central Commission and the Regional Commission, there was no illegality in recommending Sri Yadav and Sri Dubey for appointment.
26. Mr. Palit contended that no right accrued in favour of Sri Dubey on the basis of a recommendation made by the Regional Commission in response to a requisition that was erroneously generated because of misconception of the status of a minority institution like the said Institution and knowing the same fully well, Sri Dubey did not seek enforcement of the said recommendation. According to him, the said Institution would welcome an order from the Court directing the Regional Commission to issue fresh recommendation in favour of Sri Dubey so that he could be accommodated in some other school, as prayed for by him.
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27. Mr. Bhattacharya, learned advocate for the respondents 8 and 9 while referring to the decision in Kiran Subbha (supra) contended that there is no provision in the National Commission for Minority Educational Institutions Act, 2004 (hereafter the Act of 2004) to the effect that an institution which had earlier been accepted to be a minority institution would again be required to obtain such recognition/declaration with regard to its status as one established and administered by a minority. The Act of 2004 would only be applicable in respect of institutions, which are proposed to be established after enactment thereof, and the Commission, constituted under the Act of 2004, has no right to decide on the existing minority status of an institution. Referring to the decision in Kiran Subbha (supra), he submitted that the said decision would be of no application on facts and in the circumstances of the case at hand, particularly in respect of institutions declared to enjoy minority status long before enactment of the Act of 2004 as well as the National Commission for Minorities Act, 1992 (hereafter the Act of 1992). Referring to the decision in T.M.A. Pai Foundation (supra), he contended that on application of the tests laid down therein, there could be no escape from the conclusion that the said Institution is an institution established and administered by a minority.
28. Replying to a query of Court as to whether the said Institution was established and administered by a religious minority or by a linguistic minority, he submitted that the Arya Samajis constituted a religious minority group in West Bengal.
29. Although all the parties in the writ petition filed by Sri Dubey had concluded their arguments, I noticed that there was no representation from the side of the petitioners in W.P. 1163 of 2008. Consequently an order was passed on June 17, 2010 requesting Mr. Mukhopadhyay, learned advocate for the respondents 1 to 4 therein, to serve notice on the learned advocate for the petitioners. It was thereafter that Mr. Subir Sanyal, learned advocate appeared and advanced arguments in support of the petition.
30. He contended that the fact that Arya Samaj formed a linguistic minority and that they are entitled to protection of Article 30 of the Constitution does not require any 12 determination by the Government. According to him, in the State of West Bengal, Hindi speaking people constitute minority, having regard to the Bench decision of this Court in West Bengal Board of Secondary Education v. Siliguri Hindi High School reported in 2004 (1) CHN 571. The Arya Samajis also speak Hindi and institutions established and run by them are linguistic minority institutions. Therefore, withdrawal of the Special Rules by the Government does not change the character of the minority community. The status of the Arya Samaj has not changed since 1973 and the Special Rules by which provisions were made conferring power on the Managing Committee, inter alia, to make appointment of staff in the institutions established and run by the Arya Samajis would continue, without being guided by the SSC Act.
31. Next, he referred to judgments and orders dated April 8, 2002 and June 8, 2007, rendered by learned single Judges of this Court holding that the schools established and run by Arya Samaj had the right to appoint staff in accordance with the Special Rules and, thus, contended that similar relief ought to be granted. The said Institution having been established and run by a minority, provisions of the SSC Act would have no manner of application and, therefore, W.P. 1163 of 2008 deserved to be allowed.
32. I may place on record that contrary to what had been submitted by Mr. Bhattacharya, Mr. Sanyal contended that the Arya Samajis constituted a linguistic minority. The reason therefor is not far to seek and I would advert to the same some time later.
33. I have heard learned advocates for the parties and considered the materials on record.
Since the issues raised in the petitions are common i.e. the recommendations made by the Central Commission and the Regional Commission for appointment of teachers on vacant posts in the said Institution have been challenged, this common judgment and order shall govern both the writ petitions.
34. For more than one reason, I am disinclined to exercise discretion in favour of the petitioners in W.P. 1163 of 2008 and am inclined to hold against the respondents 6 to 9 in W.P. 30691(W) of 2008.
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35. First, W.P. 1163 of 2008 and the two sets of counter affidavits, - one filed by the respondents 6 and 7 and the other by the respondents 8 and 9 in W.P. 30691(W) of 2008 suffer from gross suppression of material facts. The claim of the petitioners in W.P. 1163 of 2008 as well as respondents 6 to 9 in Sri Dubey's petition that the said Institution is a minority institution is founded on the Special Rules. An impression was sought to be given to this Court as well as the learned Judges of this Court who disposed of the two earlier writ petitions by judgments and orders dated April 8, 2002 and June 8, 2007 that the Special Rules were valid and subsisting. No reference, however, was made to the notification dated November 10, 1976 whereby the State Government rescinded the Special Rules. Reference was also not made to the proceedings before this Court in writ jurisdiction [C.R. 14143 (W) 1976] and in contempt jurisdiction [C.R. 5560 (W) of 1978] as well as the proceedings before the Hon'ble Supreme Court in connection with the Transfer Petition. It was only after the respondents 1 to 3 in W.P. 30691 (W) of 2008 had placed on record particulars in respect of such proceedings that Mr. Palit sought for time to obtain better particulars and returned to submit that what the State had contended was correct.
36. I am sure, had facts in respect of the proceedings that reached the Hon'ble Supreme Court not surfaced in course of hearing of these petitions, the result of these petitions would have been otherwise. The facts suppressed being material in the sense that the same would have a direct bearing on the outcome of W.P. 1163 of 2008, I hold that the petitioners approached the Court with unclean hands.
37. Secondly, the claim that is based on the Special Rules is rendered absolutely untenable having regard to the fact that the challenge thrown to the notification dated November 10, 1976 by the Arya Samaj did not ultimately succeed.
38. In T.M.A. Pai (supra), a Constitution Bench of 11 (eleven) learned Judges of the Hon'ble Supreme Court was considering the following 11 (eleven) questions : 14
Q. 1. What is the meaning and content of the expression "minorities" in Article 30 of the Constitution of India?
Q. 2. What is meant by the expression "religion" in Article 30(1)? Can the followers of a sect or denomination of a particular religion claim protection under Article 30(1) on the basis that they constitute a minority in the State, even though the followers of that religion are in majority in that State?
Q. 3. (a) What are the indicia for treating an educational institution as a minority educational institution? Would an institution be regarded as a minority educational institution because it was established by a person(s) belonging to a religious or linguistic minority or its being administered by a person(s) belonging to a religious or linguistic minority?
Q. 3. (b) To what extent can professional education be treated as a matter coming under minorities' rights under Article 30?
Q. 4. Whether the admission of students to minority educational institution, whether aided or unaided, can be regulated by the State Government or by the university to which the institution is affiliated?
Q. 5. (a) Whether the minorities' rights to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students?
Q. 5. (b) Whether the minority institutions' right of admission of students and to lay down procedure and method of admission, if any, would be affected in any way by the receipt of State aid?
Q. 5. (c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities? Q. 6. (a) Where can a minority institution be operationally located? Where a religious or linguistic minority in State A establishes an educational institution in the said State, can such educational institution grant preferential admission/reservations and other benefits to members of the religious/ linguistic group from other States where they are non-minorities?
Q. 6. (b) Whether it would be correct to say that only the members of that minority residing in State A will be treated as the members of the minority vis-à-vis such institution?
Q. 7. Whether the member of a linguistic non-minority in one State can establish a trust/society in another State and claim minority status in that State? Q. 8. Whether the ratio laid down by this Court in St. Stephen's case1 (St. Stephen's College v. University of Delhi) is correct? If no, what order? Q. 9. Whether the decision of this Court in Unni Krishnan, J.P. v. State of A.P.4 (except where it holds that primary education is a fundamental right) and the scheme framed thereunder require reconsideration/modification and if yes, what?15
Q. 10. Whether the non-minorities have the right to establish and administer educational institution under Articles 21 and 29(1) read with Articles 14 and 15(1), in the same manner and to the same extent as minority institutions? and Q. 11. What is the meaning of the expressions "education" and "educational institutions" in various provisions of the Constitution? Is the right to establish and administer educational institutions guaranteed under the Constitution?
39. Most of the above questions were answered, while the rest were directed to be answered by the regular benches. I need not refer to or reproduce the answers to the above questions given by the Hon'ble Supreme Court since the same are not absolutely relevant for a decision here. I have, however, noted that the Court proceeded to deal with various facets of establishment and administration of minority educational institutions generally, without any particular reference as to whether schools or institutions established and administered by the Arya Samajis constitute minority institutions in any particular State or not.
40. With respect, I may observe that the question as to whether schools and institutions established and run by the Arya Samaj could at all be regarded as minority institutions in a particular State was left open for a decision in future, if at all necessary, on the basis of the statement of law contained in the answers given to questions 1, 3, 5, 6 and 7. There was no adjudication as to whether the State Government was justified in its action of rescinding the Special Rules or not. Disposal of the Transferred Case by order dated March 25, 2003 by the Hon'ble Supreme Court did not enure to their benefit. There being no adjudication on legality of the notification dated November 10, 1976 or otherwise, the said notification must be deemed not to have been disturbed. The Special Rules thus cannot be said to exist and the Arya Samaj can no longer rely on the same in support of their respective contentions as raised in W.P. 1163 of 2008 as well as in the counter affidavits filed in W.P. 30691 (W) of 2008.
41. There are two other fundamental reasons to decline relief. 16
42. It is an undisputed fact that the State respondents or the Central/Regional Commissions did not suo motu recommend the names of Sri Yadav and Sri Dubey for appointment on the posts of Headmaster and Assistant Teacher in Pure Science (pass category) in the said Institution. The ball was set rolling by the said Institution itself. Fact that vacancy existed on the post of Headmaster was reported by the said Institution on December 26, 2006 to the DIoS who, vide memo dated April 20, 2007 notified such vacancy to the Central Commission. Advertisements inviting applications for appointment to various vacant posts of Headmasters in different schools including the said Institution was issued on December 30, 2007. Although the Managing Committee of the said Institution purportedly adopted a resolution on December 9, 2007 to cancel its previous resolution dated February 2, 2003, the contents of the resolution dated December 9, 2007 were never communicated to the Central Commission immediately thereafter or any time before publication of the advertisement. Long 6½ months after publication of advertisement, a lawyer's notice was sent to the Central Commission and the Regional Commission for the first time on June 16, 2008 requesting them to refrain from recommending any candidate for appointment on the post of Headmaster. It is settled law that jurisdiction under Article 226 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred [see Rajendra Singh v. State of M.P. reported in (1996) 5 SCC 460 and Har Shankar v. Excise and Taxation Commissioner reported in (1975) 1 SCC 737]. There is, thus, no reason to exercise discretion in their favour for they incurred the statutory obligation of appointing the recommended candidate, having volunteered to send requisition to the DIoS.
43. I have considered the judgments and orders dated April 8, 2002 and June 8, 2007 passed by the learned single Judges of this Court. The said decisions were rendered at a point of time prior to amendment of the Management Rules effected by notification dated September 15, 2008. With effect from that date, Rule 33 was omitted. The provisions for framing special rules for any particular school or institution ceased to 17 have any existence on and from that day. Even if it is assumed that the validity and operation of the Special Rules were not affected by the order of the Government rescinding it dated November 10, 1976, Rule 32 as it stands now makes it clear that the Management Rules would not apply, inter alia, to non-Government aided Educational Institutions established and administered by a minority referred to in clause (c) of Section 2 of the West Bengal Minorities' Commission Act, 1996 (hereafter the 1996 Act). It has also been explained 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 1996 Act for the composition, powers, functions etc. of the Committee of such Institution. Section 2 (c) of the 1996 Act provides as follows :
"2.- Definition.- in this Act, unless the context otherwise requires :-
(a)
(b)
(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 Commission may notify under clause © 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 Commission may, by notification, specify from time to time. "
44. No document has been placed before me to show that the State Government, by notification, has specified that the said Institution is established and administered by a minority viz. the Arya Samaj and, therefore, the Management Rules would not apply to the said Institution. It has also not been brought to my notice that the State Government has made rules in terms of the provisions of the 1996 Act detailing composition, powers, functions etc. of the committee of such institutions as is referred to in clause (c), as amended. In fine, the State Government has not determined the status of the said Institution being established and run by a minority, as claimed by the petitioners in W.P. 1163 of 2008 and the respondents 6 to 9 in W.P. 30691 (W) of 18 2008. The said Institution is, therefore, bound to comply with provisions contained in Rule 28(1) of the Management Rules for appointing staff on sanctioned posts.
45. Interestingly, as noted above, learned advocates for the Arya Samaj expressed divergent views as to whether the Arya Samajis constitute a religious minority or a linguistic minority. The Hon'ble Supreme Court in its decision in D.A.V. College v. State of Punjab & ors. reported in AIR 1971 SC 1737 held that the Arya Samajis were Hindus and, therefore, entitled to minority status in the State of Punjab. That is not the case here. Hindus being majority in the State of West Bengal, the Arya Samajis cannot be considered to constitute a religious minority. Mr. Sanyal raised the contention that the Arya Samajis constitute a linguistic minority after the aforesaid observation in D.A.V. College (supra) was brought to the notice of Mr. Bhattacharya who had no answer thereto.
46. The question, therefore, would be whether the Arya Samajis constitute a linguistic minority and whether the Court can declare such status? In W.P.1163 of 2008 as well in the two sets of counter affidavits filed in connection with W.P. 30691(W) of 2008, there is not a single averment to the effect that such members constitute a linguistic minority, not to speak of particulars to establish such claim. There is no claim that the Arya Samajis have a separate spoken language, which is necessary for the purposes of Article 30(1) of the Constitution, as held in D.A.V. College (supra), to be entitled to protection. All that has been stated is that the Arya Samajis are minorities and the State Government has accepted such fact by granting the Special Rules. The Special Rules did not exist when these two petitions were presented before this Court and even now and, therefore, no determination can be made regarding the status of the said Institution as established and run by a minority i.e. the Arya Samajis, on the basis thereof. Particulars on the basis of which the Arya Samajis claim to constitute a linguistic minority group are also lacking. The State Government has not, after amendment of Rule 32 and deletion of Rule 33 of the Management Rules, accepted the Arya Samajis as constituting a minority group and, therefore, the institutions 19 established and run by them cannot be regarded as minority institutions as on date and thus entitled to protection of Article 30. The SSC Act, therefore, does apply in respect of the said Institution and the Central Commission was not unjustified in recommending Sri Yadav for appointment as Head Master therein. I have considered the decision in Siliguri Hindi High School (supra). Considering the amendments incorporated in the Management Rules referred to above and also the observations in Kiran Subbha (supra), I am of the view that the said decision cannot be of any aid to the petitioners. In the absence of any determination in respect of minority status by the competent authority in terms of the relevant laws, it would be improper for the Court of Writ to give any decision as adjudicator of the first instance.
47. Last but not the least, the petitioners are also not entitled to any relief for not impleading Sri Yadav as an additional respondent in terms of the Court's order dated September 19, 2008. Apart from the reasons discussed above, no relief could be granted to the petitioners in the absence of Sri Yadav.
48. For the foregoing reasons, W.P. 1163 of 2008 must fail and is accordingly dismissed.
49. Turning now to the facts of W.P. 30691 (W) of 2008, it appears that the Secretary and the Headmaster of the said Institution, sometime on December 6, 2005, had signed the proforma for reporting vacancy on the post of Assistant Teacher in Pure Science (pass category). On receipt thereof, the DIoS vide Memo dated April 20, 2007 reported the said vacancy to the Regional Commission. The vacancy was included in the advertisement for the VIIIth Regional Level Selection Test for Assistant Teachers, 2007. Upon completion of the process of selection, Sri Dubey was selected and recommended by the Regional Commission vide Memo dated September 17, 2008. The claim of the said Institution is that the requisition was an act of mistake and therefore, no legal right accrued in favour of Sri Dubey to have an offer of appointment issued in his favour.
50. Most of the reasons, which I have assigned hereinabove for negating the claim of the petitioners in W.P. 1163 of 2008, apply here. The said Institution has not been 20 regarded by the State Government as a minority educational institution and, therefore, the authority of the Regional Commission to make recommendation for filling up the post of Assistant Teacher in Pure Science (pass gategory) in terms of the SSC Act is not excluded. Sri Dubey was rightly recommended and the authorities of the said Institution by not offering him appointment acted illegally.
51. In view of the findings recorded above, relief claimed in W.P. No. 30691 (W) of 2008 is moulded by directing that Sri Dubey shall be entitled to continue as Assistant Teacher in Pure Science (pass category) as a regular teaching staff. A fresh appointment letter shall be issued in his favour within 30 days from date upon cancellation of the earlier appointment letter issued in terms of the order of Court dated April 1, 2010. Sri Dubey shall be entitled to all service benefits right from the day he joined duty in terms of the order of Court. The DIoS shall approve his service without any delay. For such purpose, he shall be at liberty to call for relevant papers from the said Institution and the authorities thereof shall be bound to co-operate to ensure compliance of this direction. W.P. 30691 (W) of 2008 stands disposed of accordingly.
52. Parties to the proceedings shall bear their own costs.
53. Copy of this judgment and order, duly countersigned by the Assistant Court Officer, shall be retained with the records of W.P. 30691 (W) of 2008.
54. Urgent photostat certified copy of this judgment and order, if applied for, may be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.)