Back
IN THE HIGH COURT OF CALCUTTA
Sambuddha Chakrabarti, J.
The Managing Committee, Contai Rahmania High Madrasah and Another - Petitioners
Versus
The State of West Bengal and Others - Respondents
W. P. No. 20650(W) of 2013
Decided on : 12-03-2014
For the Petitioner:L. K. Gupta, Senior Advocate, Soumen Kumar Dutta, Raghunath Chakraborty, Abu Sohel, Advocates.
For the Madrasah Service Commission :Jayanta Mitra, Senior Advocate, Ekramul Bari, S.M. Ali, Advocates.
For the State :Bimal Chatterjee, Learned Advocate General, Tapan Mukherjee, Nilotpal Chatterjee, Advocates.
For the State Respondents:Jaharlal De and Shamim Ul Bari, Advocates
The right to administer a minority educational institution, including the right to select and appoint teachers, is a fundamental right guaranteed under Article 30 of the Constitution of India, and any legislation that tends to take away this right is ultra vires the Constitution.
Headnote:
MINORITY INSTITUTIONS - RIGHT TO ADMINISTER - TEACHER APPOINTMENT - WEST BENGAL MADRASAH SERVICE COMMISSION ACT, 2008 - CONSTITUTIONALITY - ARTICLE 30 - ARTICLE 15 - ARTICLE 19(1)(G) - REGULATORY MEASURES - REASONABLE RESTRICTIONS - NATIONAL INTEREST - PUBLIC INTEREST - MINORITY STATUS - PROTECTION - INTER SE DISCRIMINATION - VIA MEDIA - STAY OF OPERATION.
Fact of the Case:
The petitioners, a minority institution, challenged the constitutional validity of the West Bengal Madrasah Service Commission Act, 2008 (the Act), particularly section 8 thereof, which provided for the Commission to select and recommend persons for appointment to vacant posts of teachers in Madrasahs. The petitioners contended that the impugned provision infringed their right to administer the institution, including the right to select and appoint teachers, which was guaranteed under Article 30 of the Constitution of India.
Finding of the Court:
The Court held that the impugned provisions of the Act, particularly section 8 read with the subsequent provisions, tended to take away the protected right conferred upon the minorities to administer institutions according to their choice. The right of the Commission to select and recommend teachers for these institutions in a very major way interfered with the right to administer those institutions rendering a constitutional mandate virtually ineffective. The Court further held that the impugned provisions were not in consonance with the protection guaranteed by the Constitution but were definitely in derogation thereof. The Court declared section 8 of the Act and consequently sections 10, 11, and 12 of the Act ultra vires the Constitution.
Issues: 1. Whether the right of a minority to establish and administer an institution is compromised by any legislation which tends to take away the right of appointing teachers of the institution? 2. Whether this right can be taken away by the state by adopting a legislative procedure claimed to uplift the status of the said community? 3. Whether a constitutional provision or for that matter a fundamental right can ever be held to run against the interest of the community so that any regulatory legislation is permissible interfering with the said freedom?
Ratio Decidendi: 1. The right to administer an institution includes the right to select and appoint teachers, and any endeavor, legislative or otherwise, tending to curtail the same must be held to be a negation of the right conferred by the Constitution. 2. The right to administer educational institutions cannot include the right to maladminister. The State can prescribe regulations to ensure the excellence of the institution. Prescription of standards for educational institutions does not militate against the right of the minority to administer the institutions. 3. Regulatory measures are permissible to a limited extent to ensure the excellence of the institution. However, taking away the right of selection of teachers from the jurisdiction of the petitioners cannot be justified as a regulatory measure.
Final Decision: The writ petition was allowed, and sections 8, 10, 11, and 12 of the West Bengal Madrasah Service Commission Act, 2008 were declared ultra vires the Constitution. The Court stayed the operation of the judgment and order for a period of two weeks from the date of the order on the assurance of the State and the Commission that no names would be recommended or insisted upon for appointment to different posts in Madrasahs until any order was obtained from the Appellate Court.
Sambuddha Chakrabarti, J.
The principal issue involved in the writ petition, though short, is of immense significance, not only from the constitutional point of view but also in a larger socio-economic perspective: whether the right of a minority to establish and administer an institution is compromised by any legislation which tends to take away the right of appointing teachers of the institution or whether this right can be taken away by the state by adopting a legislative procedure claimed to uplift the status of the said community. Inextricably entwined with it is a remoter but inescapable question: whether a constitutional provision or for that matter a fundamental right can ever be held to run against the interest of the community so that any regulatory legislation is permissible interfering with the said freedom.
2. Contai Rahamania High Madrasah was initially recognised as a X class High Madrasah by the West Bengal Board of Secondary Education. Thereafter, it was upgraded as a Senior High Madrasah with effect from the academic session 2001-02.
3. By a notification, dated October 12, 2007 Government of West Bengal recognised all Madrasahs in West Bengal as minority institutions and the concerned Madrasah was also accordingly declared as a minority institution in pursuance of Article 30 of the Constitution of India. The petitioners contend that in terms of Article 30 of the Constitution the Madrasahs have a right to enjoy certain benefits including the right to select and appoint its teaching and non-teaching staff and to administer the same according to its own choice.
4. The enactment of the West Bengal Madrasah Service Commission Act, 2008 (the Act, for short) is the beginning of the problem for the petitioner. By the said Act a Commission was constituted and section 8 thereof inter alia provided that notwithstanding anything contained in any other law for the time being in force or in any contract, custom or usage to the contrary, it shall be the duty of the Commission to select and recommend persons to be appointed to the vacant posts of teachers in accordance with the provisions of the Act and the Rules made thereunder. The constitutionality of the said provision is really under challenge as, according to the petitioners, it infringes the right conferred by the Constitution and the effect of such legislation makes a serious inroad into the fundamental rights guaranteed by the Constitution. The petitioners contend that with this legislation the state has virtually intended to take away the right to administer the institution effectively inasmuch as the right to select and appoint teachers is a major constituent component of exercise of such a right and the impugned section of the legislation aims at nullifying the effect of the fundamental right guaranteed to a minority institution.
5. Mr. Gupta, the learned senior counsel for the petitioners, further submitted that although the petitioners have prayed for declaring section 8 of the Act as ultra vires what also create more problems for the Madrasah are the effects of the recommendation as provided in Sections 10 to 12 of the Act. According to section 10 the Managing Committee or the Administrator or the Headmaster/Headmistress shall be bound to appoint the candidate recommended by the Commission to the post of a teacher in the Madrasah as per the vacancy report. Section 11 provides that any appointment of a teacher made on or after the commencement of the Act in contravention of the provisions of this Act shall be invalid and shall have no effect and teachers so appointed shall not be teachers within the meaning of section 2(s) of the Act. The consequence of not following the recommendation of the Managing Committee is the penalty provided in section 12 of the Act. This section gives right to the State Government to direct the Board to dissolve the Managing Committee or to discharge the Administrator and to stop all financial assistance to such Madrasah if they
