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High Court Of Calcutta
Barin Ghosh, Alok Kumar Basu
WEST BENGAL MADRASAH EDUCATION BOARD - Appellant
Versus
SHAIKH SAHAJAMAL - Respondent
M. A. T. 2951 Of 2003
Decided On : 10/15/2004
EDUCATION - RECOGNITION OF MADRASAH - MINIMUM FACILITIES - AID TO RECOGNIZED INSTITUTIONS - WEST BENGAL BOARD OF SECONDARY EDUCATION ACT, 1963 - WEST BENGAL COUNCIL OF HIGHER SECONDARY EDUCATION ACT, 1975 - WEST BENGAL BOARD OF MADRASAH EDUCATION ACT, 1994 - CONSTITUTION OF INDIA, ARTICLES 41, 45, 37.
Fact of the Case:
The writ petitioners approached the Court challenging the grounds for not recognizing the Madrasah established by them. The Court noted that while the Madrasah had better facilities than other similarly placed recognized institutions, the Government and the Board decided not to recognize it due to shortcomings in relation to those facilities.
Finding of the Court:
The Court held that the Government's decision not to recognize the Madrasah was contrary to the principles laid down in Articles 41 and 45 of the Constitution, which require the State to provide free and compulsory education for all children until they complete the age of 14 years. The Court also held that the Government could not discriminate in the grant of aid to recognized institutions, and that the grant of aid should depend on the resources of the Government and the public interest.
Issues: 1. Whether the Government's decision not to recognize the Madrasah was contrary to the principles laid down in Articles 41 and 45 of the Constitution? 2. Whether the Government could discriminate in the grant of aid to recognized institutions?
Ratio Decidendi: 1. The Court held that the Government's decision not to recognize the Madrasah was contrary to the principles laid down in Articles 41 and 45 of the Constitution, which require the State to provide free and compulsory education for all children until they complete the age of 14 years. The Court noted that Article 45 of the Constitution talks about free and compulsory education for all children until they complete the age of 14 years. Since a student will start education at the age of six in Class I, at the age of 14 years he will be in Class VIII. In this State there are two types of Junior High Schools. One of them are those which impart education in Classes V and VI, and are called two class Junior High Schools. The remaining are four class Junior High Schools imparting education in Classes v, VI, VII and VIII. Therefore, a child who is entitled to free and compulsory education until he completes the age of 14 years would in Class VIII when he is 14 years old. If aid is not granted to a Junior High School, the student studying there, despite being entitled to free education, will not be receiving the same. 2. The Court held that the Government could not discriminate in the grant of aid to recognized institutions, and that the grant of aid should depend on the resources of the Government and the public interest. The Court noted that for the purpose of doing the self-same thing for the self-same type of people it may not be possible for the Government to bring about discrimination.
Final Decision: The Court allowed the appeals and set aside the judgments and orders impugned, and while doing so granted liberty to the writ petitioners/respondents to apply afresh after the appellants have achieved the minimum requirements prescribed by the government.
( 2 ) IN terms of Article 41 of the Constitution it is the obligation of the State to make effective provision for securing the right to, amongst others, education within the limits of its economic capacity. In terms of Article 45 of the constitution it is the obligation of the State to provide free and compulsory education for all children until they complete the age of 14 years. Articles 41 and 45 are contained in Part IV of the Constitution. In terms of the provisions contained in Article 37 of the Constitution, the provisions contained in Articles 41 and 45 of the Constitution are not enforceable by Courts, nevertheless in terms of Article 37 of the Constitution the principles laid down in Articles 41 and 45 of the Constitution are fundamental in the governance of the country and it is the duty of the State to apply those principles in making laws.
( 3 ) IN order to apply the principles contained in Articles 41 and 45 of the constitution, the State Government has made appropriate laws. One of them is the West Bengal Primary Education Act, 1973. The other three of such Laws, with which we are concerned here, are the West Bengal Board of Secondary education Act, 1963, the West Bengal Council of Higher Secondary Education act, 1975 and the West Bengal Board of Madrasah Education Act, 1994.
( 4 ) IN this State a student studies in Class-I when he is six years old. After pursuing studies upon Class-X, a student becomes entitled to appear in the secondary Examination. When a student is successful in the Secondary examination, he is entitled to be admitted in Class-XL After studying Classes xi and XII, a student becomes entitled to sit in the Higher Secondary examination.
( 5 ) EDUCATION imparted in Classes I to IV are called primary education; whereas education imparted in Classes V to X are called secondary education and education imparted in Classes XI and XII are called higher secondary education.
( 6 ) PRIMARY education at present is imparted through Primary Schools, all of which are controlled and managed by the District Primary School Councils, established by and under the West Bengal Primary Education Act, 1973. At present it is those Councils who establish Primary Schools and manage all primary Schools, which have been established. The salaries payable to the teachers of such schools are provided and paid by the Council, which in turn gets appropriate aid from the State Government, The syllabus to be taught at the primary level is determined by the West Bengal Board of Primary Education, constituted by and under the said Act.
( 7 ) THE Boards established by and under the West Bengal Board of Second
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