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2011 Supreme(Cal) 1323
HIGH COURT OF CALCUTTA
K.J. SENGUPTA, SYAMAL KANTI CHAKRABARTI, JJ.
State Of West Bengal - Appellant
Versus
Swami Sadananda, Secretary, Sri Ramkrishna Ashram Junior Basic School - Respondent F.M.A. No. 490 of 2011, M.A.T. No. 567 of 2010, C.A.N. No. 9554 of 2010
Decided on : Sep 22,2011
Tarun Roy, Manisha Mukherjee, Manash Ghosh, Arijit Banerji, Asok De, Himadri Barua
The fundamental right under Article 26 of the Constitution of India to establish and maintain an institution for a charitable purpose cannot be taken away by the West Bengal Primary Education Act, 1973.
Headnote:
CONSTITUTIONAL LAW - ARTICLE 26 - RELIGIOUS DENOMINATION - EDUCATIONAL INSTITUTION - APPROVAL OF APPOINTMENT - WEST BENGAL PRIMARY EDUCATION ACT, 1973 - SPECIAL RULES FOR MANAGEMENT OF SCHOOLS OF SRI RAMKRISHNA ASHRAM - INTERPRETATION AND APPLICATION - RECOGNITION OF SCHOOL - WITHDRAWAL OF RECOGNITION - EFFECT OF REPEAL OF EARLIER ACT - FUNDAMENTAL RIGHT TO ESTABLISH AND MAINTAIN INSTITUTION FOR CHARITABLE PURPOSE.
Fact of the Case:
Sri Ramkrishna Ashram Junior Basic School, established by a religious society, sought approval for the appointment of teachers made by the management. The school was recognized under the Bengal (Rural) Primary Education Act, 1930, and the recognition was not withdrawn after the enactment of the West Bengal Primary Education Act, 1973. The District Primary School Council refused to grant approval, contending that the appointment should be made by the Council.
Finding of the Court:
The court held that the school's recognition under the repealed Act continued under the 1973 Act, and the District Primary School Council did not withdraw the recognition. The Special Rules for Management of Schools of Sri Ramkrishna Ashram, framed under the West Bengal Secondary Education Act, 1963, were applicable to the school, and the State Government had the power to frame similar rules for institutions other than secondary institutions. The court also held that the fundamental right under Article 26 of the Constitution of India to establish and maintain an institution for a charitable purpose cannot be taken away by the 1973 Act.
Issues: 1. Whether the school's recognition under the repealed Act continued under the West Bengal Primary Education Act, 1973. 2. Whether the Special Rules for Management of Schools of Sri Ramkrishna Ashram were applicable to the school. 3. Whether the State Government had the power to frame rules for institutions other than secondary institutions. 4. Whether the fundamental right under Article 26 of the Constitution of India to establish and maintain an institution for a charitable purpose could be taken away by the 1973 Act.
Ratio Decidendi: 1. The recognition of the school under the repealed Act continued under the 1973 Act by virtue of Section 105(3) of the 1973 Act, which provides that all schools recognized under the repealed Act shall be deemed to have been recognized under the 1973 Act. 2. The Special Rules for Management of Schools of Sri Ramkrishna Ashram were applicable to the school, as Rule 4 of the Special Rules provides for the composition of the Managing Committee of branch institutions, including Primary, Basic, and Pre-Basic Schools other than Secondary Schools run by the Ashram. 3. The State Government had the power to frame rules for institutions other than secondary institutions under Section 106(3)(v) of the 1973 Act, which empowers the State Government to make rules in other matters that are not classified in Clauses (a) to (u). 4. The fundamental right under Article 26 of the Constitution of India to establish and maintain an institution for a charitable purpose cannot be taken away by the 1973 Act, as Article 13(2) of the Constitution provides that the State shall not make any law that takes away or abridges the rights conferred by Part III of the Constitution.
Final Decision: The court dismissed the appeal, holding that the learned Trial Judge had granted the appropriate relief. The court also directed the State Government to consider framing separate Special Rules for the Primary Schools under the wings and branches of the writ petitioner No. 1.
SENGUPTA, J.
1. THE above appeal is directed against the judgment and order of the learned Single Judge dated 24th December, 2009 passed in Writ Petition No. 13117 (W) of 2007. By the judgment and order impugned the learned Trial Judge directed to approve the members of the Staff who have already been appointed against the sanctioned post.
2. THE short fact of this case leading to filing the writ petition and preferring appeal is as follows :- THE first respondent is the Secretary of Sri Ramkrishna Ashram Junior Basic School P.O. Nimpith Ashram, Joynagar in the District of South 24 Parganas.THE said Sri Ramkrishna Ashram, Nimpith is the registered society, and within its object clause of the bylaws of the society the said Ashram has established several schools at remote villages of Sundarban area for educating children belonging to Scheduled Caste, Scheduled Tribes community and also other backward classes. This area is widely known to be the most backward area as such this avowed scheme for imparting free education to this section of people has been adopted by this society which the Government has not been able to do so. THE society therefore has established 11 schools with all required facilities in the locality of South 24 Parganas in remote places of Sundarban area. One of the schools is Ramkrishna Ashram Junior Basic School at Nimpith. This school has been established not only to impart the general education but also to educate them in practical education for reformation of the society and to build the future generation as a responsible citizen who can do the social work also. THE said school at all material times had and still has been run by the said society which is described and recognized as religious institution within the meaning of Articles 26 and 29 of the Constitution of India. THE said Junior Basic School was established long time back. THE society has got its own rules and regulations with power to appoint teacher to run the administration of the said school. THE said Junior Basic School has been sanctioned by the then Director of Public Instruction, Government of West Bengal under G.O. No.845-SC/P(ii) dated 12th September, 1963 and at all material times the same has been run smoothly since then under the management of its parent body Sri Ramkrishna Ashram, Nimpith enjoying Special Rules vide Memo No.918-Edn,(S) dated 21st September, 1990. THEre were 9 sanctioned posts in the said school and all the 9 staffs were appointed by the management of the said school. Subsequently, after recognition of the said school, 5 out of 9 approved teachers were transferred to elsewhere for their own interest during the period of 1986 to 1988. In view of the vacancy having arisen the Managing Committee of the school duly appointed 5 new teachers and thereafter School Authorities sought for approval of appointment unsuccessfully. Several representations have been made for approval of the school. The said Junior Basic School is a Class - X unit with roll strength of 657, and nine (9) teaching staff are still working in the said school and out of 9 teachers only one approved teacher is serving. When no decision was taken with regard to the approval of appointment as above, the respondent No. 1 on behalf of the said society filed a writ petition in this Court and prayed for amongst other granting approval. The said writ petition was disposed of by a learned Single Judge by an order dated 9th May, 2004 directing the Director of School Education (Primary) to consider and dispose of the representation. Thereafter, pursuant to the said order dated 18th May, 2005 Director of School Education (Primary) considered the representation and rejected prayer for approval of the appointment observing that under the Special Rule the society had no power to fill up the vacant posts. Challenging the said order another writ petition has been filed and the same is still pending. During pendency of the said writ petition the Secretary made rep
