2004 Supreme(SC) 615

2004(4) Supreme 349
SUPREME COURT OF INDIA
(Under Art. 32 of the Constitution of India)
Rajendra Babu, CJI & G.P. Mathur, J.
Brahmo Samaj Education Society and Ors. -Petitioners
versus
State of West Bengal and Ors. -Respondents
Writ Petition (C) Nos. 9683-9684 of 1983
Decided on 5-5-2004
Counsel for the Parties :
For the Appearing Parties : Raju Ramachandran, Additional Solicitor General, Dipankar P. Gupta, Bhaskar Gupta, Bikas Ranjan Bhattacharjee, Shanti Bhushan, Sr. Advocates, Pramod Swarup, Praveen Swarup, Ms. Pareena Swarup, Ms. Sunanda Roy, Jayant Tripathi, S. Ghose Chaudhary, H.K. Puri, S.K. Puri, Ujjwal Banerjee, Rathin Das, Prashant Bhushan, Narinder Verma, Vishal Gupta, Sanjai Pathak, Ms. Shivangi, Ms. A. Subhashini, Bijan Kumar Ghosh, Ms. Rekha Pandey and Ms. Anil Katiyar, Advocates.

IMPORTANT POINT
Independence for selection of teachers among the qualified candidates is fundamental to the maintenance of the academic and administrative autonomy of an aided educational institution though State can provide basic qualifications for teachers.

Headnote:Constitution of India-Articles 19(1)(g) and 26(a)-West Bengal College Teachers (Security of Service) Act, 1975-West Bengal College Service Commission Act, 1978-Section 7-Power of appointment of a teacher in a college or institution affiliated to a University in West Bengal became vested in Government appointed College Service Commission-Procedure challenged on plea that petitioner was a religious minority and a religious denomination and they alone had right to appoint teachers-Whether appointment of teachers through selection of College Service Commission was permissible?-Petitioners had a right to establish and maintain educational institutions and their status as minority/denomination was not necessary to be decided-Independence for selection of teachers among qualified candidates was fundamental to maintenance of academic and administrative autonomy of an aided institution-State could provide for basic qualifications for teachers.

       Held : To establish and administer an educational institution is held to be a right coming under Article 19(1) (g) of the Constitution as enunciated in T M A Pai Foundation v. State of Karnataka (2002) 8 SCC 481 [at pages 533 - 535, paragraphs 18 -25]. According to Article 19(6) of the Constitution, the right to establish and maintain an educational institution is subject to the reasonable restrictions imposed by the State in the interest of general public. At the same time, subject to public order, morality and health, every religious denomination or any section thereof can establish and maintain educational institutions under Article 26(a) of the Constitution. (See T M A Pai - cited supra at page 535, paragraph 26). Reading Articles 19(1)(g) and Article 26(a) of the Constitution together, the petitioners have a right to establish and maintain educational institutions and hence we do not think it is necessary to decide the issue of minority / denominational status of Brahmo Samaj to decide the issue in hand. In our view this issue does not arise in the context of present case. The question now before us is to decide whether the appointment of teachers in an aided institution by the College Service Commission by restricting the Petitioner s right to appointment is a reasonable restriction in the interest of general public or not. The Petitioner has a right to establish and administer educational institution. Merely because the petitioners are receiving aid, their autonomy of administration cannot be totally restricted and institutions cannot be treated as a government owned one. Of course the State can impose such conditions as are necessary for the proper maintenance of standards of education and to check maladministration. (Paras 5 and 6)

       But that control cannot extend to the day-to-day administration of the institution. It is categorically stated in T M A Pai (cited supra at page 551, paragraph 72) that the State can regulate the method of selection and appointment of teachers after prescribing requisite qualification for the same. Independence for the selection of teachers among the qualified candidates is fundamental to the maintenance of the academic and administrative autonomy of an aided institution. The State can very well provide the basic qualification for teachers. Under the University Grants Commission Act, 1956, the University Grants Commission (UGC) has laid down qualifications to a teaching post in a University by passing Regulations. As per this Regulations UGC conducts National Educational Testing (NET) for determining teaching eligibility of candidates. UGC has also authorised accredited States to conduct State Level Eligibility Test (SLET). 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 qualification of a teacher. Petitioner s right to administer includes the right to appoint teachers of its choice among the NET/ SLET qualified candidates. (Para 7)

       When a larger Bench consisting of 11 Judges of this Court in T M A Pai has declared what the law on the matter is, we do not want to dilute the effect of the same by analysing various statements made therein or indulge in any dissection of the principles underlying it. We would rather state that the State Government shall take note of the declarations of law made by this Court in this regard and make suitable amendments to their laws, rules and regulations to bring them in conformity with the principles set out therein. In this view of the matter, it is unnecessary to examine whether the present rules are valid or not. Until such time as such rules are framed in terms of the order made by us now, the interim orders made by this Court in these proceedings will be operative. (Para 10 and 11)