Calcutta High Court (Appellete Side)
West Bengal And Others vs The Managing Committee on 20 April, 2020
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Dr. Sambuddha Chakrabarti
and
The Hon'ble Justice Hiranmay Bhattacharyya
F.M.A. No. 112 of 2019
The Commissioner of School Education,
West Bengal and Others
Vs.
The Managing Committee,
Vidya Vikash High School (H.S) and Another.
For the appellants : Mr. Kishore Dutta, Advocate General
Mr. Joythosh Majumder, Government Pleader
Mr. Joyak Kumar Gupta, Advocate
Mr. Avisek Prasad, Advocate
For the respondents : Mr. Shaktinath Mukherjee, Sr. Advocate
Mr. Kalimuddin Mondal, Advocate
Mr. Sankar Biswas, Advocate
Heard on : 18.02.2019, 12.07.2019, 17.07.2019,
19.07.2019, 26.07.2019, 08.08.2019,
09.08.2019, 16.08.2019, 05.09.2019,
07.11.2019, 08.11.2019, 19.11.2019,
10.01.2020, 15.01.2020
Judgement on : 20.04.2020
Sambuddha Chakrabarti, J.:
This appeal arises out of a judgment and order, dated September 22, 2017 passed by a learned Single Judge in W.P. No. 7040 (W) of 2016 setting aside the order impugned in the writ petition. However, the learned Single Judge upheld that the part of the impugned order by which the requisite number of posts for the school was determined should immediately be sanctioned by the Secretary, School Education Department, Government of West Bengal within three months from the date of communication of the order. The Secretary has also been directed to sanction two non-teaching posts in terms of prayer B to the writ petition and the remaining part of the same prayer is to be implemented by the District Inspector of School (SE), Barrackpore, within a period of three months.
The writ petitioner no. 1 is the Managing Committee, Vidya Vikash High School (H.S) (the school, for short) and the writ petitioner no. 2 is its Secretary. The writ petition mentions the following facts: the school was established in the year 1970 in the vicinity of a thickly populated area within an industrial belt where employees of jute mills, railways and different factories reside. To impart education, late Dinanath Shaw decided to establish the school with the help of local inhabitants who were the guardians of their wards. The school was initially started as a Hindi and an English medium school. The organizing committee had to appoint a good number of teaching and non-teaching staff. In the year 1990 a large number of guardians along with the late founder of the school moved a writ petition and a learned single judge by a judgment, dated January 29, 1991 directed the Secretary of the School education to send recommendation for recognition of the school to the West Bengal Board of Secondary Education (the Board, for short). The Board was further directed to act in terms of the provisions of law read with the government orders.
In the year 1993 an inspection of the school was conducted which revealed that run both in the morning and day shifts the school had 32 class units. On the basis of the recommendation of the government the Board granted recognition to the school for classes V to X with co- education with effect from May 1, 1993. The petitioners claim that for 32 class units the school is entitled to have 58 teaching and 5 non-teaching staff under the existing norms of the state government.
The Director of School Education (the Director, for short) by a memo, dated August 16, 1996, ordered that not more than 15 posts of teachers and three non-teaching staff could be sanctioned. This order was subsequently quashed by the High Court by an order, dated October 10, 1996. This was followed by an order, dated February 7, 1997 passed by the Director granting two more teaching posts. It was observed by him that the School was running both morning and days shifts. Without the permission from the Board, it was not entitled to get more posts for the present. This order was also challenged by the writ petitioners. In an appeal from an interlocutory order passed on the said writ petition a Division Bench of this Court directed the respondents to allot 17 more teaching posts in addition to the existing 17 posts of teachers for the present. This order was complied with by the Director of School Education by an office order, dated April 13, 2000, instructing the District Inspector of School (SE) to accord necessary approval of 17 teaching staff from amongst the unapproved teachers after taking into consideration various factors. Thus, the school had 34 teaching and three non-teaching staff in total out of the assessment of requirement by the school.
Ultimately, the writ petition, which was filed by the petitioners challenging the order, dated February 7, 1997, passed by the Director of School Education, was disposed of by a learned single Judge on November 26, 2010 directing the District Inspector of Schools (SE), Barrackpore to grant approval of the remaining admissible 24 teaching and two non- teaching staff within four weeks from the date of communication of the said order by regularization of services of the existing teaching and non- teaching staff who had been working in the school since the date of their respective appointments. An application for recalling or review or modification of the said order failed. Against both these orders, the respondents filed two separate appeals with connected applications.
The appellate court by a judgment and order, dated August 22, 2013 set aside the memo, dated February 7, 1997 passed by the Director of School Education relating to the running of the school in two shifts and sent back the matter to the Director formulating several issues to be decided by him.
On the basis of the enquiry report, the Commissioner of School Education (West Bengal) (the Commissioner, for short) (after re-designation of the Director's post) determined the total number of teaching and non- teaching staff required for the school. The memo revealed that the school was entitled to 57 teaching posts and one post of headmaster. Since the school already had 34 teaching posts, 23 additional posts of Assistant Teachers and one post of headmaster may be sanctioned to the school for classes V to X. No further non-teaching post was sectioned.
For decision on the two issues as framed by the order of the Division Bench, dated August 22, 2013 viz., approval of appointments of the organizing teaching and non-teaching staff, the Commissioner gave a hearing to the writ petitioners. There 23 claimant organizing teaching and two non-teaching staff were also present. By a memo, dated November 18, 2015 issued by the Commissioner, the prayer for approval of organizing teaching and non-teaching staff was turned down.
That order has been challenged in the writ petition out of which the present appeal has arisen. According to the petitioner, the order was violative of the basic principle of natural justice as the enquiry report was never furnished to the petitioners although the same was relied on by the Commissioner in his impugned memo. Non-consideration of relevant documents by the Commissioner was also a point taken by the petitioners. It has also been alleged that the Commissioner wrongly relied upon a circular, dated June 8, 2007 without considering that the same had been amended by another Government Order, dated October 3, 2007 in terms of which the school is entitled to get one more post of clerk and one more non-teaching staff. The petitioners further asserted that the claimants were appointed by the organizing managing committee in terms of the Government notification issued from time to time in connection with the organizing teachers. They continued to serve the school till it was upgraded in the year 2012 and were still continuing in their posts. All these teachers had the requisite qualification at the time of initial appointment which was shown to the Commissioner at the time of the hearing. According to the petitioners, the question of following the recruitment rules of 1969 could not arise. The memo on which the commissioner had relied on had already been substituted by a subsequent memo rendering the order impugned in the writ petition liable to be set aside.
The writ petition was contested by the respondents by filling an affidavit-in-opposition. It was mentioned in the affidavit that in the years 1975, 1976 and 1977 the Board issued special permission to the school to send their students to appear at the Madhyamik examination. Again in the years 1991 and 1992 students were sent up for the said examination in terms of the Court's order. The school was inspected on January 9, 1993 by the Deputy Director of School Education (Rural and Primary) which was followed by an inspection report revealing the total number of students found present to be 816 out of 1104 enrolled students. The school was recognized as an X-class high school by the Board. It was further upgraded in the year 2012 by the West Bengal Council of Higher Secondary Education.
The affidavit further records that the resolution, dated July 20, 1992 of the managing committee of the school revealed that 70 teaching and non-teaching staff were appointed. Of them 34 had been approved as assistant teachers and four were approved as non-teaching staff. Finally, 17 persons out of a total 70 appointees were shown as claimants for approval as organizing teaching and non-teaching staff as mentioned in the supplementary affidavit to the writ petition being W.P. No. 3598 (W) of 1997. The affidavit alleged that over and above that after May 1, 1993, the Secretary of the school appointed nine teaching and non-teaching staff beyond the sanctioned posts and without following the recruitment rules. They also have been shown as persons claiming for according approval taking the total number of claimants to 26.
In terms of the order, dated August 22, 2013 passed by a Division Bench of this Court two issues were required to be settled: i) determination of the total required number of teaching and non-teaching staff as per the staff pattern, and ii) approval of appointment of the organizing teachers. It was observed by the Commissioner that none of the 26 claimants satisfied simultaneously the four principles set out by the Division Bench of the High Court and, therefore, they were not entitled to get approval as organizers. The determination of additional posts had been settled. By an office memo, dated July 2, 2015, the Secretary of the School Education Department was requested to sanction 23 additional posts for Assistant Teachers and one post for Headmaster of the School.
The affidavit has specifically controverted that the school was entitled to have 58 teaching and 5 non-teaching posts. For any recognized school the number of teaching posts was to be determined following the government norms which were done by the Director sanctioning 34 posts. Upon recognition as a high school it was entitled to have one additional post of a clerk and two group-D staff which were also sanctioned. At the time of inspection, the school could not produce all the documents required by the inspecting team, e.g., no Attendance Register before July, 2001 and the Resolution Book of the managing committee to June, 1992 could be produced. There is no scope to entertain the organizer staff in the Higher Secondary section of the School. That was not in the zone of consideration in the writ petition or in the appeal. Therefore, the posts in the Higher Secondary section were not required to be considered when the number of additional posts was determined. The school was given the liberty to submit a prayer in an appropriate manner to the District Inspector of School (SE) separately.
The affidavit further mentions that as per the Government Order, dated December 5, 1987 no application for recognition beyond the year 1975 could be entertained. No candidate was appointed by the managing committee pursuant to the notification relating to organizing teachers. The teacher-in-charge of the school could not produce the Attendance Register prior to July 2001. The Attendance Register for the subsequent period revealed that seven persons, as mentioned in the affidavit, did not attend the school for the period shown against the names of each one of them. Mere attendance at the chamber of the Commissioner does not establish that the claimants were still continuing pursuant to their purported initial appointment. This established discontinuity of their purported service. The claim about the required qualification of the teachers at the time of initial appointment had also been denied. There is no scope for issuing a fresh appointment letter to a person already appointed. But after the recognition of the school seven persons were issued fresh appointment letters by the Secretary. There is no scope to appoint any staff in a recognized school without following the procedure prescribed in the relevant recruitment rules. Any appointment made contrary to these rules and beyond the sanctioned posts is bad. Therefore, fresh appointments issued to seven persons could not be accepted as legal. The affidavit gives a list of eight persons as not having the minimum academic qualification at the time of initial appointment.
The affidavit specifically mentions that the number of teaching posts had been determined in terms of the Schedule to the Right to Free and Compulsory Education Act, 2009. Also in terms of the relevant Government Orders the School is entitled to maximum two posts of Clerk and two posts of Group-D staff for classes V to X. For the reasons mentioned earlier, Higher Secondary Section had not been considered when the number of additional posts was determined. Since no application beyond 1975 was entertainnable only those persons who were appointed before 1975 could be treated as organizers. The claimant 17 staff were appointed in the years 1991 and 1992, their names were also not shown as organizers in the inspection report, dated January 18, 1993. The claimant staff who were appointed in the school on or after May 1, 1993 also cannot be treated as organizers and their appointment could not be accepted as valid. The respondents prayed for dismissal of the writ petition.
To the said affidavit-in-opposition the petitioners filed an affidavit-in- reply.
A learned Single Judge while disposing of the writ petition had observed that from the records it was clear that although the appointment of nine teachers was not proper they had the trappings of formality. Since the teachers were recruited by the managing committee and since they had served the school at best their appointments could be termed as irregular. Therefore, they rightly staked their claim to the appointments. The fact that some of the candidates did not have adequate degrees is no factor now as for so many years they have imparted education and the school students have received it without any complaint. With these observations, the learned Single Judge disposed of the writ petition with the directions already mentioned earlier.
While justifying the entitlement of the writ petitioners to the reliefs claimed and criticizing the order impugned in the writ petition, Mr. Mukherjee, the learned senior counsel for the writ petitioners/respondents, submitted that late Dinanath Shaw was a leading member of the local Hindi community and was seeking to promote education amongst the Hindi speaking children of industrial workers. Even if the Commissioner has recorded in the impugned order that teaching in the school was imparted both in Hindi and in Bengali this was a mistake. Teaching is imparted only in Hindi and not in Bengali.
Mr. Mukherjee further referred to the order, dated January 29, 1991 passed by the late Justice Mohitosh Majumdar wherein it was observed that the school had earned the eligibility for recognition by reason of the facts stated in the writ petition. In the said order reference was made to an earlier order passed on another writ petition where recognition was claimed on the basis of the records. The respondents in this appeal relied on a memo, dated December 31, 1979 of the Director of School Education the subject of which was recognition of the school which was described as "a Hindi Medium High School, set up by linguistic minorities as a Class X Hindi Medium High School with effect from 1st January, 1979". They also relied on the inspection report, dated January 18, 1993 which showed that the medium of instruction was Hindi. The report contained an observation on the inadequate number of Hindi medium schools in the overwhelmingly Hindi populated area which accounted for more than one thousand students in the unrecognized school.
Mr. Mukherjee laid great emphasis on the school being a Hindi medium school situated in a Hindi speaking area. The school was established to provide education amongst children of the local Hindi speaking people. He relied on the affidavit-in-opposition to the application for stay filed in connection with the present appeal. For example, the first available report, dated March 24, 1980 revealed that the strength of the students of the school was 286 and the inspecting officer remarked that there was a possibility of the school's becoming an ideal institution if recognized as a class X secondary school. Referring to the said affidavit-in- opposition, it has been argued that the inspecting officer observed that the claim was for a X-class Hindi high school for the minority group. In subsequent reports also the need for a Hindi school for the Hindi-speaking minority was mentioned. The successive reports showed a rise in the students' strength.
From this, the writ petitioners sought to build up a case that the school was an ideal institution which may be evinced by the rise of the students' strength in spite of non-availability of the requisite number of teachers according to the norms of the government. In spite of the fact that the required strength of the school were 58 teachers posts for 23 teachers are lying vacant. Mr. Mukherjee referred to the judgment, dated November 7, 1997 delivered by a Division Bench of this Court wherein the necessity of 58 teachers and five non-teaching staff of the school was recorded, but the shortage has been maintained since then. But in spite of it the school has been granted recognition for the Higher Secondary section in 2012. But in spite of the statutory provisions and constitutional obligation under Article 21A of the Constitution of India the additional posts have not been sanctioned as yet.
Mr. Mukherjee very heavily relied on Article 30 of the Constitution of India which empowers a minority to establish and administer educational institutions. There is also no denying that the school made an application on December 18, 2005 for the grant of a special Constitution which was allowed by the respondents. The application recorded that the school was in the Hindi belt of Naihati and was established in 1970 with the financial assistance and endeavour of late Dinanath Shaw.
The main thrust of Mr. Mukherjee's case has been the status of the school as a linguistic minority. He submitted that the application made by the school for issue of a certificate under the National Commission for Minority Education Institution Act will not create a linguistic minority, but will only grant recognition to the existing linguistic minority status. Such certificate has been applied for convenience and by way of abundant caution. Mr. Mukherjee relied on the judgment in the case of N. Ammad Vs. Manager Emjay High School and Others, reported in (1998) 6 SCC 674 wherein the Supreme Court held that when the government declared the school as a minority it has recognized the factual position that the school was established and was 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.
The school authority submitted that the benefit of Article 30 of the Constitution of India was claimed long back. This was enquired into and from time to time benefits were extended. The recognition on that basis was maintained as late as in the year 2000 when approval was granted for 17 teaching posts. The authorities also recognized the right of the school to have their own nominees approved by them. The prayers in the instant writ petition were made for approval of 34 teachers. Such approval was prayed not in respect of the appointments made by the school, but in respect of the satisfaction of the minimum qualification of the appointed teachers. This is the procedure followed for minority institutions and was followed in the year 2000 which is after the enactment of the West Bengal School Service Commission Act, 1997 (the Act, for short).
It is not for the first time, the writ petitioners submitted, that the school was claiming recognition as a minority institution. Having regard to the admitted necessity for the teachers and staff continuing at least from 1997 the only point is to approve their appointment against the post proposed to be sanctioned on the basis of the required qualification. Whether a particular teacher is appointed before or after the recognition is irrelevant as the law is that minority institutions themselves are to appoint teachers and not to get them recruited through the School Service Commission. Section 15 of the said Act excludes schools established and administered by minorities, whether based on religion or language, from the operation of the Act. Any attempt to get the teachers of the school recruited through the Commission would violate Article 30 of the Constitution of India as well as Section 15 of the said Act.
In support of his contention that a minority institution enjoys the privilege of appointing its own teachers and no regulatory measure can affect that right Mr. Mukherjee relied on the judgments in the case of Managing Committee, Contai Rahmania High Madrasah Vs. State of West Bengal, reported in 2014 (3) CHN 60, West Bengal Board of Secondary Education and Another Vs. Siliguri Hindi High School and Others, reported in 2004 (1) CHN 572 and DAV College Jullundur etc., Vs. the State of Punjab and Others, reported in AIR 1971 SC 1737. With reference to the official records the respondents submitted that it cannot be denied that the school is a minority institution established and administered by the minority community and, therefore, is entitled to the benefit of Article 30 of the Constitution of India as well as Section 15 of the said Act.
Mr. Mukherjee further submitted that in view of the admitted position the authorities cannot withhold sanction of 23 additional posts and prevent the school from having them filled up with their own appointees. In all cases they are named and appointed by the school. The government approves them against the sanctioned posts depending upon their qualifications on the date of approval. From this Mr. Mukherjee submitted that having regard to the recognized minority status of the school the Commissioner had committed an error by referring to different dates of appointment while dealing with the claim of the appointed teachers for approval against 23 posts. In view of the accepted minority status there was nothing wrong in such appointments or in the prayer that such teachers should be approved who have served the school without any payment by the government. The initial lack of qualification has been made up by all the candidates on the date of the interview and at present they are all qualified to be approved.
The respondents further relied on the judgment in the case of State of Kerala Vs. Very Rev. Mother Provincial, etc., reported in AIR 1970 SC 2079 wherein the Supreme Court observed that Article 30(1) of the Constitution of India contemplates two rights which are separate in point of time. The first right is the initial right to establish institutions of the minority's choice. The word 'establishment' here means the bringing into being of an institution and it must be by a minority community. It matters not if a single philanthropic individual with his own means, founds the institution or the community at large contributes the funds. The position in law is the same and the intention in either case must be to found an institution for the benefit of a minority community by a member of that community. It is equally irrelevant that in addition to the minority community others from other minority communities or even from the majority community can take advantage of these institutions. Such other communities bring in income and they do not have to be turned away to enjoy the protection.
It was lastly submitted that the benefits of Article 30 of the Constitution of India or Section 15 of the said Act cannot be taken away on the basis of irrelevant and untenable grounds when the facts are known to the State. The State not only accepted the fact but also acted upon it. Relying on Rev. Father W. Proost and Others Vs. the State of Bihar and Others, reported in AIR 1969 SC 465 it was submitted that it was the duty and obligation of the State to continue to give effect to the protection rather than denying the same. In the said judgment the Supreme Court observed that Article 30 (1) of the Constitution of India is a special right given to the minorities to establish educational institutions of their choice. The choice is not limited to the institution seeking to conserve language, script or culture and the choice is not taken away if the minority community also admits members of other communities. The width of Article 30(1) cannot be cut down by introducing in it considerations on which Article 29 (1) of the Constitution of India is based.
Reliance has also been placed on the judgment in the case of Rev. Sidhrajbhai Sabbai and Others Vs. State of Gujarat and Others, reported in AIR 1963 SC 540, for a proposition that the right established by Article 30(1) of the Constitution of India is a fundamental right declared in terms absolute. Unlike the fundamental freedoms, it is not subject to reasonable restrictions. It is intended to be a real right for the protection the minorities in the matter of setting up of educational institutions of their own choice. The Supreme Court observed that the right was intended to be effective and was not to be whittled down by so called regulative measures conceived in the interest not of the minority educational institutions but of the public or the nation as a whole.
The respondents also relied on a very recent judgment of the Supreme Court, dated September 25, 2019 in Chandana Das (Malakar) Vs. State of West Bengal and Others, (Civil Appeal No. 2858 of 2007) which shall be considered later.
It appears that the writ petitioners/respondents filed various writ petitions and appeals arising therefrom seeking to induct teaching and non-teaching staff by themselves. It has been a grievance of the appellants that in the process without following the relevant recruitment rules the school engaged various teachers which they could not do in terms of the prevalent rules. It is true that a learned Single Judge by an order, dated November 26, 2010 passed in W.P. No. 3598 (W) of 1997 directed the Director to accord necessary sanction for 24 teaching and 2 non-teaching posts and to issue directions to the District Inspector of Schools to grant approval of the remaining admissible teachers and non-teaching staff within four weeks from the date of the communication of the order by way of regularizing of services to the existing teaching and non-teaching staff who had been working in the school since the date of respective appointments, but in appeal this order was set aside. The immediate context for filing W.P. No. 3598 (W) of 1997 was an order, dated February 7, 1997 passed by the Director by which two posts were sanctioned. The Division Bench not only did set aside the order of the learned Single Judge but also the order passed by the Director of School Education. The Division Bench observed that the question with regard to the approval of appointment of the organizing teachers was to be considered by the Director. But before he took upon himself to consider the question, he was directed to answer four questions in respect of each of the applicants after the matter was thoroughly investigated by a competent officer of his choice. The questions so framed by the Division Bench were:
a) whether the candidate was appointed by the managing committee pursuant to the notification relating to organizing teachers issued by the State from time to time;
b) whether he continued to serve the school until the school was upgraded;
c) whether he was still continuing to serve the school pursuant to his initial appointment; and
d) whether he had the requisite qualification at the time of initial appointment.
After finding answers to the aforesaid questions, the Director was to take a decision in the matter, i.e., the approval of the appointment of the organizing teachers, in accordance with law.
The Commissioner by an order, dated December 18, 2015 observed that no candidate was found to have been appointed by the managing committee pursuant to the notification relating to organizing teachers issued by the State from time to time. His further finding was that the attendance registers for the period from July, 2001 and onwards revealed that seven teachers as mentioned in the order did not attend the school for the period shown against each of them. In respect of the question relating to requisite qualification that the specific finding of the Commissioner has been that none of the 26 claimants satisfied simultaneously the four principles set out by the Division Bench and, therefore, none of them was entitled to approval as organizing teachers.
Mr. Majumdar, the learned Government Pleader, submitted that the appointments made by the school between 1991 and 1992 were de hors the recruitment rules. Since the school was recognized from May, 1993 the appointees cannot claim the status of the organizing teachers. He further submitted that there was no provision in the Rules for Management of Organized Non-Government Institutions (aided and unaided) Rules of 1969 (the Rules, for short) for regularization or appointment of organizing teachers.
In this connection he relied on the judgment in the case of Monindranath Sinha and Others Vs. The State of West Bengal and Others, reported in 2006 (4) CHN 513 wherein a Division Bench of this Court observed that neither in the West Bengal Board of Secondary Education Act, 1963 nor in the Rules framed thereunder, there is any provision for appointment of an organizing managing committee or an organizer teacher nor is there any authority conferred upon the organizing managing committee to appoint any teacher or employee before the recognition of the school and conferment of the prescribed sanctioned strength under the Act. If the initial appointment is illegal according to the parent Act and the Rules, the government by issuing notification cannot approve or regularize such illegal appointments. The judgment has been affirmed by a three- Judge Bench of the Supreme Court after holding that the order passed by the High Court did not call for any interference. This principle of law has been followed in several subsequent judgments. The learned Government Pleader further submitted that the writ petitioners challenged the order of the Commissioner on various grounds including the same having been passed in violation of the principles of natural justice, non-application of mind, non-consideration of the relevant Government circulars, so on and so forth. But there is no whisper of nay special status either acquired by the school or to be conferred on it by dint of its being a linguistic minority institution. Consequently, the affidavit-in-opposition also did not have any occasion to deal with the said issue.
In fact, there was hardly any scope for addressing himself to the minority issue by the Commissioner. The judgment and order, dated August 22, 2013 in which the Director was directed to undertake certain investigations and to pass an order in terms of the points framed by the Court arose out of a writ petition being W.P. No. 3598 (W) of 1997 where also the appellants never agitated the issue of linguistic minority. The written notes of submission filed in connection with that case also makes no case for a minority institution. Neither the earlier rounds of petitions nor the writ petition out of which the present appeal arises did make or has made any reference to the minority issue. Even the learned single Judge did not dispose of the writ petition on that ground. It is only in this appeal that the school authorities decided to justify the reliefs claimed by them in the writ petition bared on the minority issue.
The first question to answer is whether such a turn in the stand is a permissible one. In other words, the court has to decide whether the writ petitioners can be allowed to take a point in the appeal which amounts to a complete departure from the stand hitherto taken and which has no foundation in the pleadings whatsoever. Want of materials in the pleading has been sought to be made up by the writ petitioners in their affidavit-in- opposition to the application for stay filed by the appellants in connection with the present appeal. It was in the affidavit that the writ petitioners wanted to make out a case that late Dinanath Shaw was a leading member of the local Hindi community and was seeking to promote education amongst the Hindi speaking children of industrial workers.
This was not what they had pleaded in the writ petition. All that was stated in paragraph 3 of the writ petition was that to impart education late Dinanath Shaw decided to establish the school in question with the help of the local inhabitants being guardians of their wards. The school was initially started both in Hindi and in Bengali medium. "To meet the said demands of the thickly populated area belonged [sic] to backward communities widely spread over in the Naihati municipality, the said school was established as co-educational", is what the petitioners stated in paragraph 3. Where is the case made out of promoting education by late Dinanath Shaw amongst Hindi speaking children of industrial workers or the identity of the founder as a leading member of the Hindi Community? A case introduced in the affidavit in connection with an appeal cannot decide the case with which the parties went to trial nor can it alter the nature of it. If the respondents to the original proceeding do not get a chance to controvert an issue at the first instance to allow the writ petitioners to change their stand at the appellate stage would certainly amount to a very big surprise to them. Writ petitioners cannot spring any surprise from the sleeves at the appellate stage by not only introducing a totally new element but wholly making out a new case which their opponents were never required to meet. If the writ petitioners wanted to succeed on the basis of the minority status, as claimed by them, one wonders why it was not pleaded in the writ petition. It was not only not pleaded in this writ petition but also was never taken to be a ground in the series of petitions filed by them.
Mr. Mukherjee himself admitted that in the writ petition no case of a minority statusof the school has been made out. In fact, there is not even any reference to it.
That makes the respondents' case hard to succeed on the point. That a party cannot succeed on an issue which has never been pleaded is far too well-settled a principle of law. The whole purpose behind the principle is to narrow the parties to definite issues. More than a century ago Lord Halsbury observed in Sayad Md. Vs. Fateh Md. reported in 22 IA 4 that the sole object of this principle is to make the parties fully alive to the questions that are about to be argued in order that they may have an opportunity of bringing forward such evidence as may be appropriate to the issues. Although this principle was enunciated in the context of a civil proceeding because of its universality it equally applies to a writ petition as well.
In the written note of submission filed by the respondents, the objection taken by the learned Advocates for the appellants to the attempt to canvas the point of minority status of the school as being totally outside the scope of the writ petition, has been described as "an indecent attempt by the State to scuttle justice on the cross of procedure". This was a legal objection taken by the State. The submission of the respondents must have taken the appellants by surprise for it had no foundation not only in the present writ petition but also in any of the earlier rounds of litigations, particularly the one out of which the direction given by the Division Bench in its order, dated August 22, 2013, arose. A party to a proceeding may definitely take any objection available to him in law. There is no question of any indecency involved in it.
The writ petitioners had primarily two prayers viz., setting aside the order, dated December 18, 2015, passed by the Commissioner as well as granting approval to 23 organizing teaching staff and two non-teaching staff straightway as had been done in respect of 34 organizing teaching staff and four non-teaching staff. The Commissioner after giving a detailed hearing to the parties have come to the conclusions which have been mentioned before. If this order is to be set aside on the ground as canvassed by Mr. Mukherjee in appeal, it will amount to quashing the order for not considering an aspect which was neither before Commissioner nor was he required to address himself to that. He could not travel beyond the points framed and formulated by the High Court in the earlier round of litigation. Now to set aside this order on a very different grave will be an act of injustice. This will be judging the validity of an impugned order on an entirely extraneous consideration which is not permissible in law. The Commissioner had neither the occasion nor was he directed to go into the question of the right of the school to appoint teachers on the basis of their minority status. If he had ever attempted to do so that would have been a violation of the order of the Division Bench in the earlier round of appeal. The Commissioner cannot be faulted for not considering something which was not the issue before him.
Mr. Mukherjee tried to maintain with reference to some documents that no new plea in appeal has been raised. On the contrary, it is on the basis of the accepted status and official records that the plea has been taken.
The submission that the materials on record would disclose that the benefit under Article 30 of the Constitution of India was claimed long back is also not factually correct. Mr. Mukherjee heavily relied on the letter of approval, dated April 13, 2000 and submitted that approval was granted for 17 more teachers and the authorities recognized the right of the school to have their own nominees approved by them.
This calls for an examination of the context in which the said letter was issued and its contents. We have already noted that a Division Bench by its order, dated November 7, 1997 had directed the respondents to allot 17 more teaching posts to the school by December 31, 1997. The grievance of the appellants in that appeal was that though they had 31 class units and were entitled to have 58 teaching and five non-teaching staff they were sanctioned only 15 teachers in the year 1995. It appears from the said order of the Division Bench that challenging an order, dated August 16, 1996 passed by the Director of School Education turning down the request of the school authorities for creation of posts of teaching and non-teaching staff the school moved a writ petition and a learned Single Judge quashed the order of the Director and directed the authority to reconsider the matter taking into consideration the government circulars and the inspection reports as mentioned in the order of the learned Single Judge. There also no case was made out by the school claiming itself to be a minority institution. The order of the Division Bench, dated November 7, 1997 also did not address itself to the issue of the minority status but directed 17 additional teaching posts to be sanctioned as the school had admittedly 19 units.
In compliance of the said order as well as two subsequent orders 17 additional posts of teaching staff were sanctioned in favour of the school with necessary directions. This is hardly any proof or even a remote pointer of either that the school was claiming a minority status or 17 additional posts were sanctioned for that reason.
That apart, the order, dated April 13, 2000 was passed in the face of a rule of contempt issued against the state for violation of the order, dated November 7, 1997. From this, it cannot be argued that there were already sufficient materials on record which could suggest that the school was claiming a minority status for long. On the contrary, the appellants have raised an issue, and quite understandably, that if the school claims that there were materials on record justifying a minority status, why was nothing of that sort ever pleaded or even made out in the writ petitions filed by the school? If the school wants to rely on a 1979-document it should have been the basis of the writ petition of the 1990. When that petition was disposed of in the year 1991 with a direction upon the Board to act in terms of the provisions of law read with the government orders there is nothing to presume, far less to conclude, that provisions of law in the High Court's order referred to the law relating to the grant of minority status.
The further submission of Mr. Mukherjee that having regard to the recognized minority status of the school the Commissioner committed an error by referring to various dates of appointment and dealing with the claim of the appointees for approval against 23 posts. The submission proceeds on the basis of a premise that the minority status of the school was accepted which is not the case here. We have already seen that the Commissioner was not even required to go into this aspect which was not the claim of the writ petitioners at the stage or any stage prior thereto. Therefore, the stand that the entitlement of the petitioners to the benefit of Article 30 of the Constitution of India cannot be taken away on irrelevant or untenable grounds when the facts are known to the State must equally fail.
It is not entirely correct for the school to claim that it enjoyed a "recognized" minority status nor can it be said that the application to the National Commission for the grant of a minority certificate was by way of an "abundant caution". It appears from the pleadings of the petitioners in Vidya Vikash High School (H.S) and Another Vs. The National Commission for Minority Educational Institution and Others (W.P. 18443 (W) of 2018) that the concerned District Inspector of School asked the Secretary of the school to produce the minority status certificate from the National Commission for Minority Educational Institutions. In the absence of such a certificate the District Inspector of Schools was not in a position to issue necessary instruction for starting the recruitment process as per Article 30 of the Constitution of India. Thereafter, the Secretary of the School convened a meeting of the managing committee on April 29, 2018 where a resolution was taken for taking necessary steps to obtain minority status certificate from the National Commission.
In this connection we may also refer to the resolution taken on April 29, 2018 by the managing committee of the school. The resolution reads:
"............ our school is fully qualified for being declared as a linguistic minority school (Hindi Medium) which has been running under "Special Constitution" and it is high time to seek legal remedies for obtaining certificate of minority status to the school........" The resolution further recorded that after deliberation and considering the relevant points raised by the Secretary it was resolved unanimously that the Secretary of the school was authorized to take all possible steps for obtaining an order from the administrative machinery of the state and/or centre for issuing a certificate for minority status in favour of the school "in order to secure proper permission from the concern [sic] department in respect of appointment of teaching and non-teaching staff..... save the school atmosphere and protect the interest of the students of linguistic minority communities at once." And an application for declaring the school as a minority educational institution was made to the National Commission on July 23, 2018.
One thing stands out very clear that the application for minority status was not made by way of any abundant caution as submitted by the respondents. It had a positive purpose behind it i.e., to overcome the difficulties faced by it for want of a minority status certificate. The District Inspector of Schools declined to issue necessary instruction for initiating the recruitment process as per Article 30 of the Constitution of India in the absence of such a certificate from the National Commission. That is why a meeting of the managing committee was convened and an application was made for issue of such a certificate. It was only to facilitate initiation of a recruitment process by themselves that the school authority felt compelled to make an application for grant of a certificate. It was not a redundant exercise taken without any objective to achieve.
Even that apart, when the District Inspector of Schools expressed his inability to issue necessary instruction for want of a certificate from the National Commission the school authorities accepted the position and took steps to obtain such a certificate. If the writ petitioners knew that the school was already a minority educational institution and a certificate would not confer any status on them it is not clear why they accepted and acted in terms of the what the District Inspector of Schools had given out to them instead of challenging the same or questioning the validity of the government official's decision. At least that could have been in fitness of the stand taken by them before us. The fact that they had accepted the inability expressed by the District Inspector of Schools and acted on that basis is a pointer of realization by the school authorities of the necessity of having a certificate. And that is manifestly reflected in the resolution adopted by the school that a certificate would be applied for "in order to secure proper permission" of the concerned department in respect of appointment of teaching and non-teaching staff of the school.
To overcome the difficulty arising from the want of a minority status certificate the respondents submitted that since a certificate will not create the school a linguistic minority but will merely recognize the existing linguistic minority status it can still enjoy the benefit under Article 30 of the Constitution of India even without a certificate. In this context, Mr. Mukherjee relied on the case of N. Ammad (supra).
This, however, is not an acceptable stand. N. Ammad (Supra) cannot be interpreted to mean that a certificate of the minority status is not necessary to enjoy the benefits under Article 30 of the Constitution of India. What that judgment in essence says is that a declaration by the government of the minority status of the school carries with it the recognition of the factual position that it was established and is administered by a minority community. It does not mean that to get the recognition of the factual position such a certificate is not an essential part of it. More recently the Supreme Court in Manager, Corporate Educational Agency Vs. James Mathew and Others, reported in (2017) 15 SCC 595 has clarified the position that once the National Commission issues a certificate it is a declaration of an existing status. The word "once" assumes importance in the context. It means that to get the declaration of an existing status a certificate is necessary. A certificate may relate back to an antecedent period, but without a certificate such declaration cannot be presumed. Far less an educational institution without a certificate can neither claim the declaration of an existing status nor is the state under any obligation to accept the claim of minority status of such an institution.
If it is the submission of the writ petitioners that they were not claiming the recognition of the minority status the judgment in the case of Chandana Das (Malakar) (supra) cannot be relied on by them. The facts of the case that had occasioned the judgment were entirely different from those of the present case. In that case the question that came up for consideration was whether Khalsa Girls' High School was a minority institution and if so whether the institution's right to select and appoint teachers was in any way affected by the provisions of the Rules of 1969. The specific case of the institution was that it was a linguistic minority institution and it had filed affidavits to that effect. On the top of everything, on April 19, 1976 a detailed memorandum was sent by the institution to the Secretary, West Bengal Board of Secondary Education asking for approval of the special constitution for the school as a minority educational institution.
The affidavit further relied on the recognition of the minority status of the school by the West Bengal Minority Commission in terms of its order, dated October 6, 1989. The letter, dated April 19, 1976 traces the history of the school from the year 1930. The Supreme Court had taken into consideration the content of the said letter for recognizing the school as a minority institution and it was only in this context that it was observed that merely because Rule 8(3) of the Rules was purportedly applied, it did 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.
Mr. Mukherjee also relied on the subject of the letter, dated December 31, 1979 issued for the Director of Secondary Education which mentioned "Recognition of Vidya Vikash High School, 25 L.N. Kabiraj Road, P.O. Garifa, 24 Parganas - a Hindi Medium School set up by linguistic minorities as a Class X Hindi Medium High School with effect from 01.01.1979". By the said letter, the District Inspector of Schools (SE) was forwarded a letter written by the school with a request to take necessary steps for inspection of the school and to furnish a report with his remarks. The letter written by the Secretary of the school in the context of which the letter, dated December 31, 1979 was written has not been annexed to the affidavit-in-opposition. Without that the reason for mentioning the subject of the letter, dated December 31, 1979, is difficult to appreciate. We agree with the submission of the learned Government Pleader that in the inspection report submitted by the District Inspector of School (SE) there was no observation, far less any recommendation, about the minority status. The finding that the majority of the population in and around the concerned area were industrial workers and belonged to Hindi speaking minority community without anything more did not mean the acceptance of the status of the school as a minority institution. It has already been seen that even in the order passed by a learned single Judge of this Court on January 29, 1991 there was no direction to declare the school as a linguistic minority. Mr. Majumdar argued that there are several Hindi medium schools set up by Hindi speaking people in different parts of the state, and they have not been declared as minority educational institutions.
It is true that in some documents the school has been described as a Hindi medium school which merely means that the medium of instruction is in Hindi. Merely setting up a Hindi medium school by itself may not be sufficient to meet the requirement. In St. Stephen's College Vs. University of Delhi, reported in (1992) 1 SCC 558, the Supreme Court observed that the courts in certain cases have accepted without much scrutiny the version of the claimant that the institution in question was founded by a minority community while in some cases the courts have examined very minutely the proof of the establishment of the institution. The right claimed by a minority community to administer the educational institution depends upon the proof of establishment of the institution. This is a condition precedent for claiming the right to administer the institution. The Supreme Court further observed: ".......the Article 30(1) is a protective measure only for the benefit of religious and linguistic minorities and it is essential, to make it absolutely clear that no ill-fit or camouflaged institution should get away with the constitutional protection".
The appellants have raised yet another issue: does the minority status or the benefit under Article 30 of the Constitution of India make it a foolproof case against any state interference? The question that came up for consideration before the Supreme Court in Sk. Md. Rafique Vs. Managing Committee, Contai Rahamania High Madrasah and Others, (Civil Appeal No. 5808 of 2017 with other petitions) was whether the provisions of certain sections of the West Bengal Madrasah Service Commission Act, 2008 were ultra vires the Constitution of India.
The Supreme Court observed that it is quite natural that qualitatively better teachers will ensure imparting of education of the highest standard and in achieving excellence. If the intent is to achieve excellence in education, it would not be enough if the concerned educational institutions were to employ teachers with minimum requisite qualifications in the name of exercise of right under Article 30 of the Constitution of India while better qualified teachers are available to impart education. The Supreme Court raised an issue: "If teachers possessing qualifications far greater and higher than this basic index are available, will it be proper exercise for a minority educational institution to select teachers with lower index disregarding those who are better qualified? Will that subserve pursuit of excellence in education?"
The Supreme Court observed that if the right under Article 30 of the Constitution of India is not accepted to be absolute and unqualified and the national interest must always permeate and apply, the excellence and merit must be the governing criteria. "Any departure from the concept of merit and excellence would not make a minority educational institution an effective vehicle to achieve what has been contemplated in various decisions of this Court". If the person nominated for imparting education is otherwise better qualified and suitable any rejection of such nomination by the minority institution would never help such institution in achieving excellence and as such any such rejection would not be within the true scope of the right protected under Article 30(1) of the Constitution of India.
Thus what transpires from the above judgment is that even a minority institution has to employ meritorious teachers. So far as the qualifications of the claimant organizers in the present case are concerned, the Commissioner has separately dealt with the same. In terms of the relevant Government Order, dated July 8, 1974 the minimum academic qualification of a teacher should be a pass degree with such combination of subjects as would enable him to teach the school course prescribed by the Board under the new curriculum. Again in terms of another Government Order, dated October 23, 1994 the degree of B.Com and M. Com are not the eligible qualifications for appointment as an assistant teacher in a high school. The Commissioner discussed the qualifications of the eight teachers and the dates of their respective appointments. His finding has been that those eight teachers were not pass graduates which was the minimum academic qualification at the time of their initial appointments. Therefore, their appointments were not made with the requisite qualification. The respondents wanted to make it up submitting that by now the teachers have acquired the basic requisite qualifications. That is hardly any answer to the lack of minimum qualification at the time of the first appointment by the school. It has to be borne in mind that one of the directions given by the Division Bench in its order, dated August 22, 2013 upon the Director (as the designation the was) was to investigate whether the candidates had the requisite qualifications at the time of initial appointments.
The learned single Judge even after holding that the appointment of nine teachers was not proper has held that the appointments had the trappings of formality. The appointment of such teachers has been described as merely irregular without mentioning the reasons for the same. That the teachers have imparted education for several years without any complaint is hardly any justification for continuing with appointment of ineligible teachers. The order impugned in the writ petition has been a detailed one touching on all the points framed by the Division Bench. The learned Single Judge without dislodging the finding that none of the 26 claimants satisfied the four points of investigation, as set out by the Division Bench, could not have disposed of the writ petition in the manner it has been done. The very specific finding of the Commissioner that none of the claimants was entitled to approval as organizers not having been set aside by the learned single Judge, the direction given in the impugned order is unsustainable. On the contrary, the conclusion of the Commissioner that the prayer of the claimants for approval as organizers is untenable appears to be logical, well-reasoned and arrived at after an elaborate discussion of the factual aspects of the case as well as the law prevailing in the field. The Commissioner has passed an order which does not call for an intervention by this court in exercise of its powers of judicial review.
Thus, we find sufficient merits in the order passed by the Commissioner and in the instant appeal. We have already found that the effort to obtain the reliefs sought in the writ petition on the ground of the status of linguistic minority of the school is plainly impermissible and for the reasons mentioned above is also a misconceived one.
The appeal succeeds.
The judgment and order of the learned single Judge is set aside.
There shall be no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.
(Sambuddha Chakrabarti, J.) I agree (Hiranmay Bhattacharyya, J.) S. Banerjee