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High Court Of Calcutta
Harish Tandan, J.
Bidyut Kumar Biswas - Appellants
Vs
State Of West Bengal - Respondents
W.P. No. 501 (W) of 2011
Decided on: July 28, 2011
MINORITY EDUCATIONAL INSTITUTION - APPOINTMENT OF TEACHERS - APPROVAL - DISTRICT INSPECTOR OF SCHOOL (S.E.) - WEST BENGAL BOARD OF SECONDARY EDUCATION ACT, 1963 - MANAGEMENT OF RECOGNIZED NON GOVERNMENT INSTITUTIONS (AIDED AND UNAIDED) RULES, 1969 - SPECIAL RULES FOR MANAGEMENT OF SECONDARY SCHOOLS ESTABLISHED AND RUN BY THE CHRISTIAN CHURCH/MISSIONARIES SOCIETY (BOARD)/RELIGIOUS SOCIETY/SUBSIDIARY TRUST OR THEIR SUCCESSOR-IN-LAW IN THE STATE GOVERNMENT OF WEST BENGAL - ARTICLE 30 OF THE CONSTITUTION OF INDIA - T.M.A. PAI FOUNDATION V. STATE OF KARNATAKA - SECRETARY, MESLANKAR SYRIAN CATHOLIC COLLEGE V. T. JOSE - The District Inspector of School (S.E.) cannot refuse to grant approval to the appointment of a teacher made by the Managing Committee of a Minority Linguistic Educational Institution. Such refusal would be violative of the right to administer under Article 30(1) of the Constitution of India.
Fact of the Case:
The petitioner, appointed as an Assistant Teacher in a Minority Linguistic Educational Institution, sought approval for his appointment from the District Inspector of School (S.E.), Bankura. The District Inspector refused to grant approval, citing the Government order dated 12th September, 2002, which required prior permission for appointment of teachers.
Finding of the Court:
The Court held that the Government order dated 12th September, 2002, cannot operate as a bar in granting approval to the post of Assistant Teacher in the said Minority Linguistic Educational Institution. The Court further held that the action of the District Inspector of School (S.E.) in rejecting the prayer for approval to the appointment of the petitioner on the plea that the prior permission for creation of the posts is not sustainable and cannot said to be legal and valid.
Issues: 1. Whether the District Inspector of School (S.E.) can refuse to grant approval to the appointment of a teacher made by the Managing Committee of a Minority Linguistic Educational Institution? 2. Whether the Government order dated 12th September, 2002, can operate as a bar in granting approval to the post of Assistant Teacher in the said Minority Linguistic Educational Institution?
Ratio Decidendi: 1. The right to appoint the teaching and non-teaching staff in respect of the minority linguistic educational institution is one of the important facets of the minority's right to administer under Article 30(1) of the Constitution of India. 2. Any action which curtails, dilutes or abridges the rights of the Minority Institutions conferred by the Article 30 of the Constitution of India can not get a legal sanction. 3. The State can prescribe the minimum qualifications, experience and other criteria bearing on merit, for making appointments, the service conditions of employees without interfering with the overall administrative control by the management over the staff, a mechanism for redressal of the grievances of the employees, the conditions for the proper utilisation of the aid by the educational institutions, without abridging or diluting the right to establish and administer educational institutions.
Final Decision: The writ petition was allowed, and the impugned memo bearing No. 132/1 /B/LS dated. 24.12.2009 was quashed and set aside. The District Inspector of School was directed to grant approval to the appointment of the petitioner within six weeks from the date of the communication of this order.
Harish Tandon, J.
1. THE writ petitioner has impugned the Memo No. 132/ 1/B/LS dated 24.12.2009 issued by the District Inspector of School (S.E.), Bankura whereby and whereunder the said authority refused to grant approval to the appointment of the petitioner to the Minority Linguistic Educational Institution.
2. THE brief facts are that the petitioner was appointed to the post of Assistant Teacher in Bio-Science in Bankura Christian Collegiate School (Minority Institution) on 2.5.2005. Though the petitioner is discharging his duties from the date of his appointment but his appointment was not approved by the concerned authority.
3. DUE to inaction on the part of the District Inspector of School (S.E.) Bankura to grant approval to the appointment of the petitioner, the petitioner moved writ petition being W.P. No. 8170(W)/2009 before this Court and the same was disposed of on 23.6.2009, directing the said authority to take a decision upon giving the reasonable opportunity of hearing within stipulated period.
4. PURSUANT to the said order the District Inspector of School (S.E)/ respondent No.3 declined to grant approval to the appointment of the petitioner by the impugned decision vide Memo 132/1/B/LS dated 24.12.2009. This Court on 28th March, 2011 directed the respondent to file in affidavit-in-opposition within three weeks from date and the matter was directed to appear after four weeks. In spite of the said direction the respondents have chosen not to file affidavit-in-opposition till the date of hearing. However, the learned advocate appearing for the respondents made submission orally in absence of the affidavit-in-opposition.
5. IT is submitted by the learned advocate appearing for the petitioner that the Educational Institution where the petitioner, has been appointed as an Assistant Teacher of Bio-Science is a Minority Linguistic Educational Institution and is governed by Article 30 of the Constitution of India. He further submits that there is a specific rule governing such Minority Institution where the freedom to appoint the teacher is vested upon the Managing Committee and the said respondent No.3 could not refuse to grant approval to the appointment of the petitioner made by the Managing Committee. IT is further submitted that any Government order which interferes with the freedom enjoyed by the Minority Linguistic Educational Institution Society, under Article 30 of the Constitution of India cannot said to be legal and is liable to be quashed and set aside.
6. RELIANCE is placed upon a judgment of this Court in case of Khshadhwai Mondal and Ors. v. State of West Bengal and Ors. reported in 2008 (1) CLJ 167 where it is held that any Government order which has an impact of superseding the special rules as well as interferes with Article 30 of the Constitution of India can not said to be legal. Thus it is lastly contended that the Government order dated 12th September, 2002 cannot operate as a bar in granting approval to the post of Assistant Teacher in the said Minority Linguistic Educational Institution. Per contra, the learned advocate appearing for the respondent contends that under Rule 33 of the Management of Recognized Non Government Institution (Aided and Unaided) Rule, 1969, the State Government has a power to frame rules subject to certain restrictions. By Government order No. 1314 (50)-S.E./(S)/4A-35/02 dated 17th September, 2002, it is clearly stipulated that no candidate shall be appointed by the Selection Committee or the Managing Committee of the said School without obtaining prior permission of the District Inspector of School. Thus, he contends that no prior approval for appointment of a teacher was taken by this institution. The decision of the respondent No.3, to decline to grant approval to the appointment of the petitioner, cannot be said to be invalid or illegal.
7. HAVING considered the respective submissions made by the learned advocates, it is undisputed that the School where the peti
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