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2016 Supreme(Cal) 926
IN THE HIGH COURT OF CALCUTTA
Soumitra Pal & Mir Dara Sheko, JJ.
Sisters of St. Joseph of Cluny – Appellant
Versus
State of West Bengal & Ors. – Respondents
F.M.A. No. 3579 of 2013
Decided On : 13-07-2016
For the Appellant :Mr. Kalyan Kumar Bandopadhyay, Senior Advocate, Ms. Chama Mukherjee, Mr. Sandip Ghosh, Mr. Pratap Khati and Mr. S.K. Baid, Advocates
For the Respondent:Mr. Joytosh Majumdar, Ld. A.A.G. and Mr. Pinaki Dhole, Advocate, Ms. Shampa Sarkar, Advocate, Mr. Joydeep Kar, Mr. Kishore Dutta, Senior Advocates, Mr. Indranil Roy, Mr. Arnab Mukherjee and Ms. Madhurima Mukherjee, Advocates, Mr. Ayanabha Raha, Advocate
Headnote:
The National Commission for Minority Educational Institutions (NCMEI) lacks original jurisdiction to decide all questions relating to the status of any institution as a Minority Educational Institution and declare its status as such under Section 11(f) of the National Commission for Minority Educational Institutions Act, 2004 (2004 Act). Section 11(f) is subservient to Section 12B, which grants appellate power to the NCMEI to hear appeals from any order of the appropriate Government rejecting the grant of minority status. The NCMEI can only exercise its powers under Section 11(f) when there is a dispute relating to the status of an educational institution that has already been declared or refused by the competent authority of the State. The NCMEI cannot entertain an original application for the grant of minority status.
Fact of the Case:
The appellant, Sisters of St. Joseph of Cluny, sought to establish a minority educational institution and applied to the NCMEI for a minority status certificate. The NCMEI granted the certificate without the appellant having first obtained a no-objection certificate from the competent authority of the State. The State Government and North Bengal University challenged the NCMEI's order.
Finding of the Court:
The Court held that the NCMEI lacked original jurisdiction to grant minority status to the appellant's institution. It held that Section 11(f) of the 2004 Act is subservient to Section 12B, which grants appellate power to the NCMEI. The Court also held that the appellant had not exhausted its remedies under the 2004 Act by failing to first apply to the competent authority of the State for a no-objection certificate.
Issues: Whether the NCMEI has original jurisdiction to grant minority status to an educational institution under Section 11(f) of the 2004 Act.
Ratio Decidendi: The NCMEI lacks original jurisdiction to decide all questions relating to the status of any institution as a Minority Educational Institution and declare its status as such under Section 11(f) of the 2004 Act. Section 11(f) is subservient to Section 12B, which grants appellate power to the NCMEI to hear appeals from any order of the appropriate Government rejecting the grant of minority status. The NCMEI can only exercise its powers under Section 11(f) when there is a dispute relating to the status of an educational institution that has already been declared or refused by the competent authority of the State. The NCMEI cannot entertain an original application for the grant of minority status.
Final Decision: The Court dismissed the appeal and upheld the judgment of the lower court, which had quashed the NCMEI's order granting minority status to the appellant's institution.
Soumitra Pal, J.
This appeal has been preferred from a common judgment delivered on 3rd July, 2012 by the learned Single Judge in the writ petition being W.P. 4406 (W) of 2010 (Sisters of St. Joseph of Cluny v. The State of West Bengal & Ors.) and on the writ petition being W.P. No. 5002 (W) of 2010 (Governing Body of Cluny Women's College v. The State of West Bengal & ors.). By the said judgment the former writ petition - W.P. 4406 (W) of 2010 was dismissed and the latter was disposed of in view of reasonings given in the former writ petition. In the later writ petition, - W.P. No. 5002 (W) of 2010, the petitioners in W.P. 4406 (W) of 2010 was the respondents No. 4. Being aggrieved, the writ petitioner in W.P. 4406 (W) of 2010 has preferred this appeal.
2. The writ petition, being W.P. 4406 (W) of 2010, was moved with the following prayers:-
"A. A declaration that statute 1 of the statutes relating to governing bodies of colleges of University of North Bengal is ultra vires and unconstitutional;
B. A writ of mandamus or any other writ, direction or order restraining the 3rd respondent from exercising the functions of the governing body of Cluny Women's College and to restrain them from interfering with the functions of the governing body of Cluny Women's College constituted by the petitioner society;" (page 60 of the paper book).
3. It appears from the judgment impugned that prayer 'A' in W.P. 4406 (W) of 2010 was not pressed on behalf of the writ petitioner. The learned Single Judge after hearing the parties had held, inter alia, the following:-
"I have considered the rival submissions advanced by the learned advocates appearing for the parties. It can be pointed out that section 11 of the Act of 2004 describes the functions of the Commission and section 12 describes the powers of the Commission. Section 12, 12A leave no manner of doubt that in the matter of granting minority status the National Commission has been given an appellate power. I am in any event bound by the Division Bench Judgment of this court. When the commission is the appellate authority and the competent authority is the original authority under the Act and the admitted fact is that the task of the original authority was performed by the appellate authority, there is hardly any scope for any debate that the order was without jurisdiction. The fact that the state or the University unsuccessfully challenged the order before the commission is altogether besides the issue. Any order, which is passed without jurisdiction is illegal and a nullity and such illegality can be set up at any stage when the illegal order is sought to be relied upon.
For the aforesaid reason, it is not possible for me to grant any relief to the writ petition.
This writ petition is, therefore, dismissed.
There shall, however, be no order as to costs.
In the writ petition No. 5002(W) of 2010 the prayer is to cancel and/or rescind the declaration dated 25th October, 2007. I already have held that the aforesaid order passed by the National Commission is illegal for reasons already discussed. Therefore, nothing survives of this writ petition namely W.P.5002(W) of 2010.
That writ petition is accordingly disposed of." (pages 445 to 447 of the paper book).
4. It is evident from the judgment impugned that the learned Single Judge had followed the judgment of the Division Bench of this Court in Kiran Subbha v. State of West Bengal, 2008(2) CHN 530.
5. At the very outset Mr. Jaydeep Kar, learned Senior Advocate appearing on behalf of the Governing Body, Cluny Women's College (under North Bengal University Statutes), Kalimpong, Darjeeling submitted that the appeal is not maintainable as the appellant had filed one appeal instead of two as judgment was passed in the writ petitions, being W.P. 4406(W) of 2010 and W.P. 5002 (W) of 2010.
6. Mr. Kalyan Kumar Bandhyapadhay, learned Senior Advocate appearing for the appellant submitted that the question is whether the State respondents by appointing a govern
