Supreme Court - Daily Orders
Brahmosmj Education Society &Ampamp; ... vs State Of West Bengal . on 15 January, 2016
Bench: Chief Justice, Fakkir Mohamed Ibrahim Kalifulla, A.K. Sikri, S.A. Bobde, R. Banumathi
1
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NOS.9683-9684 OF 1983
BRAHMOSMJ EDUCATION SOCIETY & ANR. PETITIONER(S)
VERSUS
STATE OF WEST BENGAL & ORS. RESPONDENT(S)
O R D E R
These writ petitions have been filed under Article 32 of the Constitution of India by Brahmo Samaj Education Society, Calcutta, inter alia, praying for a declaration to the effect that Brahmo Samaj is a separate and distinct religion by itself, a religious minority and a religious denomination within the meaning of Article 25, 26 and 30(1) of the Constitution of India and that Brahmo Samaj has the right to set up, manage and administer educational institutions founded by it within the State of West Bengal according to its choice. The petitioners also pray for a writ of mandamus or any other writ or direction commanding the respondents to recognize and grant protection to the institutions established, managed and administered by the Brahmo Signature Not Verified Samaj as a minority community based on religion Digitally signed by ASHOK RAJ SINGH Date: 2016.02.20 11:47:42 IST Reason: within the meaning of provisions mentioned above and not to interfere with and/or disturb the management of the said Institutions and not to enforce the provisions of the West 2 Bengal College Teachers (Security of Service) Act, 1975 and the West Bengal College Service Commission Act, 1978. A further declaration that the provisions of Statute 93 and similar other provisions of the Calcutta University First Statute which interfere with the Constitution and powers of the Governing Body of the Colleges established and administered by the petitioners can have no application to such institutions and that the rights of the Brahmo Samaj and the Brahmo Samaj Education Society to appoint their own Principal, Vice-Principal, Professors and Teachers of the Colleges administered and managed by them cannot be interfered with has also been prayed for. A writ in the nature of prohibition restraining the respondents from enforcing the provisions of the two State enactments mentioned above besides, a writ of Certiorari quashing Memo dated 8th May/20th June, 1979 issued by the State Government are the further and additional reliefs claimed by the petitioners.
The petitions were initially heard and disposed of by a Bench of three Judges of this Court by an order dated 5 th May, 2004 (Brahmo Samaj Education Society & Ors. Vs. State of W.B. & Anr. (2004) 6 SCC 224). The operative part of the order passed by this Court was in the following words:
...only a person who has qualified NET or SLET will be eligible for appointment as a teacher in an aided institution. This is the required basic 3 qualification for a teacher. The petitioners' right to administer include the right to appoint teachers of their choice among the NET/SLET-qualified candidates.” Aggrieved by the view taken by this Court, the State of West Bengal filed Review Petition No.1850-1851 of 2005 wherein petitions were heard and allowed by this Court in terms of an order dated 31.07.2008, whereby the order passed in the writ petitions was recalled and the writ petitions directed to be listed for hearing again before a Constitution Bench. That is precisely how the present writ petitions have been placed before us for final hearing and disposal.
Having argued the matter at some length learned counsel for the petitioners submits that the petitioners may be permitted to withdraw these writ petitions to enable them to approach the Central Government for a declaration to the effect that Brahmo Samaj is a minority religious community. It was submitted that in terms of Section 2(c) of the National Commission For Minority Educational Institutions Act, 2004 the expression “minority” used in the said enactment means a community notified as such by the Central Government. Since the power to declare a community as a minority community under the said enactment is vested with the Central Government the petitioners could be allowed to approach the Government for being notified as a “minority” 4 within the meaning of the said Act. It was submitted that during the interregnum the interim arrangement made by the order of this Court dated 02.04.1984 could be continued as it has remained in force for all these years. The said interim arrangement is in the following terms:-
“We direct that the West Bengal Government will pay the salaries to the Principles Vice Principles and teacher of the Institute run by the Brahmo Samaj Education Society provided that the appointments to these posts are made by the Institutions concerned in accordance with the provisions of the West Bengal College Service Commission Act, 1978, that is to say, from out of a penal of news submitted by the authorities concerned to the Institutions to which the appointments are to be made. As far as possible, the penal all in the ratio of 1:3 i.e. three names for every vacancy to be filled.
In the event that these writ petitioner concerned, the West Bengal Government agree to find alternative suitable posts for such of the Principles, Vice-Principles and Teachers which the Institutions may not like to continue in their services.
These interim order will be objected to the result of the writ petition. The appointments will also be subject to the result of the writ petitions.
Hearing of the writ petitions is expedited.” It was urged that even while allowing the review 5 petitions this Court had made it clear that interim arrangement mentioned above would continue until further orders although appointments made would remain subject to the result of the writ petitions. This is evident from the following passage appearing in the order passed in the review petitions:-
“We make it clear that in the judgent of this Court in Brahmo Samaj Education Society & Ors. (supra) in the penultimate paragraphs there was a direction to the effect that an an interim measure till such rules are framed in terms of the order made therein, the interim order passed by this Court on 2 nd April, 1984 will continue. Learned counsel appearing for the respondent-Brahmo Samaj Education Society contends that so far the Commission has not given any panel of teachers since the last four years and the institution is not in a position to appoint any teachers. The State will take appropriate action in this regard. We make it clear that this interim order will continue until further orders.” It was urged by Mr. Anoop Bose, learned counsel for the petitioners that the above arrangement could be continued for a specified period to enable the petitioners to approach the Government and to avoid any adverse consequences that may follow should the said arrangement be vacated on account of disposal of these writ petitions.
Ms. Pinky Anand, learned Additional Solicitor General appearing for the respondent-Union of India and learned 6 counsel for the State of West Bengal and Calcutta University have no objection in case the petitioners are allowed to withdraw the writ petitions with liberty to approach the Central Government for a declaration as prayed for by them. It is submitted that continuance of the interim order should not jeopardize the services of those already employed in terms of the said order during the interregnum. In the circumstances, therefore, and keeping in view the submission made at the Bar we dismiss these writ petitions as withdrawn with liberty to the petitioners to approach the Central Government for a declaration that the petitioner Brahmo Samaj is a religious minority. We direct that in case a representation to the above effect is made by the petitioners within a period of six weeks from today, the Central Government may have the same examined at an appropriate level and take a final decision under intimation to the petitioners as expeditiously as possible but preferably within a period of one year from the date the representation is received. During the interregnum the interim arrangement made by this Court in terms of our order dated 2nd April, 1984 as continued by our order dated 31st July, 2008 passed in the review petitions shall continue for a period of one year.
We make it clear that we have not expressed any opinion on the merits of the claim made by the petitioners 7 which aspect shall be examined by the Government on its merits and an appropriate decision taken on the same.
We make it clear that if Secretary to the Government of India, Ministry of Minority Affairs does not receive the representation from the petitioners within a period of eight weeks from the date of this order the interim orders made shall stand vacated without any further reference to this Court.
...............................CJI.
(T.S.THAKUR) .................................J. (FAKKIR MOHAMED IBRAHIM KALIFULLA) .................................J. (A.K. SIKRI) .................................J. (S.A.BOBDE) .................................J. (R. BANUMATHI) NEW DELHI, JANUARY 15, 2016.8
ITEM NO.501 COURT NO.1 SECTION X
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Writ Petition(s)(Civil) No(s). 9683-9684/1983
BRAHMOSMJ EDUCATION SOCIETY & ANR. Petitioner(s)
VERSUS
STATE OF WEST BENGAL & ORS. Respondent(s)
Date : 15/01/2016 These petitions were called on for hearing today. CORAM :
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE FAKKIR MOHAMED IBRAHIM KALIFULLA HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE S.A. BOBDE HON'BLE MRS. JUSTICE R. BANUMATHI For Petitioner(s) Mr. Anoop Bose, Adv.
Mr. Siddhartha Chowdhury, Adv.
Mr. Sanjeeb Panigarhi, Adv.
Mr. Alok Pathak, Adv.
For Respondent(s) Ms. Pinky Anand, ASG Ms. Sandamini Sharma, Adv.
Ms. Rekha Pandey, Adv.
Mr. A.B. Kanade, Adv.
Mr. B.V. Balramdas, Adv.
Mr. Pijush K. Roy, Adv.
Mrs. Kakali Roy, Adv.
Mr. Ramakrishna Prasad, Adv.
Mr. A. Subhashini, Adv.
Mr. Joydeep Gupta, Sr. Adv.
Mr. Parijat Sinha, Adv.
Mr. Debjyoti Basu, Adv.
Mr. Soumik Ghosal, Adv.
Mr. Bijan Kumar Ghosh, Adv.
Mr. Rathin Das, Adv.
Mr. P. K. Roy Chowdhary, Adv.
Mr. Anip Sachthey ,Adv.9
Mr. Prashant Bhushan, Adv.
UPON hearing the counsel the Court made the following O R D E R The writ petitions are dismissed as withdrawn in terms of the signed order.
(Ashok Raj Singh) (Saroj Saini)
Court Master Court Master
(Signed Order is placed in the file)