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SUPREME COURT OF INDIA
Arun Mishra, Uday Umesh Lalit, JJ.
Sk. Md. Rafique – Appellant
VERSUS
Managing Committee, Contai Rahamania High Madrasah and Others – Respondents
CIVIL APPEAL NO.5808 OF 2017 WITH C.A. No.6098 of 2017 CONMT.PET.(C) No.670 of 2017 In SLP(C) No.6661 of 2016 CONMT.PET.(C) No.669 of 2017 In SLP(C) No.6661 of 2016 CONMT.PET.(C) No.828 of 2017 In SLP(C) No.6661 of 2016 C.A. No.5809 of 2017 C.A. No.5826 of 2017 C.A. No.5817 of 2017 C.A. No.5814 of 2017 CONMT.PET.(C) No.583 of 2016 In SLP(C) No.6661 of 2016 C.A. No.5829 of 2017 W.P.(C) No.723 of 2016 CONMT.PET.(C) No.846 of 2016 In SLP(C) No.6661 of 2016 CONMT.PET.(C) No.1509 of 2017 in C.A. No.5808 of 2017 W.P.(C) No.629 of 2017 CONMT.PET.(C) No.1798 of 2017 in C.A. No.5808 of 2017 CONMT.PET.(C) No.937 of 2018 in C.A. No.5808 of 2017 CONMT.PET.(C) No.938 of 2018 in C.A. No.5808 of 2017 CONMT.PET.(C) No.1219 of 2018 in C.A. No.5808 of 2017 CONMT.PET.(C) No.1274 of 2018 in C.A. No.5808 of 2017 CONMT.PET.(C) No.1669 of 2018 in C.A. No.5808 of 2017 CONMT.PET.(C) No.1921-1922 of 2018 in C.A. No.5808 of 2017
Decided On : 06-01-2020
(a) Constitution of India - Article 30(1) - Regulation of minority institutions - Essence of Article 30(1) is “to ensure equal treatment between the majority and the minority institutions” - Right under Article 30(1) is not absolute - Therefore rules and regulations concerning the welfare of the students and teachers would apply equally to the majority institutions as well as to the minority institutions - Further, objectives of ensuring standard of excellence of the institution, and preserving right of the minorities to establish and administer their educational institutions should be balanced. (Para 40, 45, 46)
(b) Constitution of India - Article 30(1) - The “right to admit students” under “right to establish and administer” a minority institution is not absolute and unqualified - A minority institution cannot disregard merit or merit-based selection of students - The right to take disciplinary action against the staff is also not absolute and unqualified. (Para 45)
(c) Constitution of India - Article 30(1) - Two categories of institutions: one imparting education directly aimed at or dealing with preservation and protection of the heritage, culture, script and special characteristics of a religious or a linguistic minority; second which are imparting what is commonly known as secular education - More latitude may be given in matter of selection of teachers to institutions in first category - Second category must follow the rules and regulations applicable to other institutions as regards excellence of teachers. (Para 47)
(d) West Bengal Madrasah Service Commission Recruitment (selection and recommendation of persons for appointment and transfer to the posts of teaching and non-teaching staff) Rules, 2010 - Rule 8 - In the interest of the students as well as teachers - Provisions specially designed for Madrasahs and Madrasah Education System in the State - Rule 8 stipulating fair and transparent process of merit based selection. (Para 48, 52)
(e) West Bengal Madrasah Service Commission Act, 2008 - Sections 8, 10, 11 and 12 - Recommendations or nominations by Commission binding on Madrasah - However, second proviso of section 10 entitles Madrasah to get any error in the recommendations removed - Error would include a case where a candidate available with Madrasah is better qualified than recommended by Commission - In such cases section 12 authorises Madrasah to refuse to issue appointment letter to the recommended candidate - Not against interest of minority institutions. (Para 53)
(f) West Bengal Madrasah Service Commission Act, 2008 - Sections 8, 10, 11 and 12 - Validity - Article 30, Constitution of India - Act providing for excellence in education by providing better qualified teachers - Giving entitlement to Madrasah to get approval of Commission to appoint better qualified teachers available with them - Selection of teachers and their nomination by the Commission would satisfy national interest as well as interest of minority educational institutions - Sections 8, 10, 11 and 12 not violative of the rights of the minority educational institutions. (Para 55)
Facts of the case:
This case relates to the validity of Sections 8, 10, 11 and 12 of the West Bengal Madrasah Service Commission Act, 2008.
Writ Petition was filed by the Managing Committee of Contai Rahmania High Madrasah challenging validity of Sections 8, 10, 11 and 12 of the Commission Act submitting, inter alia, that by virtue of the provisions of the Commission Act, the process of appointment of teachers in an aided Madrasah, which was recognised as a minority institution, was taken over and entrusted to the Commission appointed under Section 4 of the Commission Act; and that the Commission was empowered under the provisions of the Commission Act to make recommendations which would be binding on the Managing Committee of an aided Madrasah. It was submitted that the provisions of the Commission Act transgressed upon the rights of a minority institution of choosing its own teachers. The submission was accepted by the Single Judge of the High Court and the Writ Petition was allowed. Aggrieved, some of the candidates, including the Appellant herein, whose names were recommended by the Commission to be appointed as teachers in aided Madrasahs, filed appeal before the Division Bench of the High Court. All the appeals were dismissed by the Division Bench while affirming the view taken by the Single Judge.
Finding of the Court:
The Act 2008 is valid.
Result: Appeal allowed.
JUDGMENT
Uday Umesh Lalit, J.
1. These appeals arise out of the Judgment and Order dated 09.12.2015 passed by the Division Bench of the High Court [The High Court of Judicature at Calcutta] dismissing A.S.T. No.192 of 2014 and other connected matters and thereby affirming the decision of the Single Judge of the High Court passed on 12.03.2014 in Writ Petition No.20650 (W) of 2013 which in turn had found Sections 8, 10, 11 and 12 of the West Bengal Madrasah Service Commission Act, 2008 (“the Commission Act”, for short) to be ultra vires.
2. The aforementioned Writ Petition No.20650(W) of 2013 was filed by the Managing Committee of Contai Rahmania High Madrasah challenging validity of Sections 8, 10, 11 and 12 of the Commission Act submitting, inter alia, that by virtue of the provisions of the Commission Act, the process of appointment of teachers in an aided Madrasah, which was recognised as a minority institution, was taken over and entrusted to the Commission appointed under Section 4 of the Commission Act; and that the Commission was empowered under the provisions of the Commission Act to make recommendations which would be binding on the Managing Committee of an aided Madrasah. It was submitted that the provisions of the Commission Act transgressed upon the rights of a minority institution of choosing its own teachers. The submission was accepted by the Single Judge of the High Court and the Writ Petition was allowed. Aggrieved, some of the candidates, including the Appellant herein, whose names were recommended by the Commission to be appointed as teachers in aided Madrasahs, filed appeal being A.S.T. No. 192 of 2014 before the Division Bench of the High Court. C.A.N. No. 3078 of 2014 was filed by the Secretary, West Bengal Madrasah Service Commission while M.A.T. No. 473 of 2014 was filed by State of West Bengal challenging the very same decision of the Single Judge. All the appeals were dismissed by the Division Bench while affirming the view taken by the Single Judge.
3. The decisions of the Single Judge and the Division Bench have given rise to the present set of Appeals wherein number of Intervention Applications have also been filed.
STATUTORY PROVISIONS
4. The West Bengal Board of Madrasah Education Act, 1994 was enacted to establish a Board of Madrasah Education in West Bengal and to provide for matters connected therewith or incidental thereto. The expressions “Madrasah”, “Madrasah Education”, “Managing Committee” and “Senior Madrasah” are defined in Sections 2(f), (g), (h) and (p) as under:-
“2(f) “Madrasah” means an educational institution imparting instruction in Madrasah Education;
(g) “Madrasah Education” means a system of education in which instruction is imparted in Arabic, Islamic history and culture, and theology, and includes-
(i) High Madrasah Education System which, in addition to covering Arabic language and Islamic history and culture, imparts general education including primary education with a view to qualifying students for admission to a certificate, diploma or degree course instituted by a University or by a Government or by any statutory authority, and includes such other type of education as the State Government may, in consultation with the Board, specify;
(ii) Senior Madrasah Education System which imparts instruction in Arabic language and literature, Islamic theology, history, culture and jurisprudence and some general education with a view to qualifying students for a certificate, diploma or degree of the Board or a University or a Government or any other statutory authority;
(h) “Managing Committee” used in reference to an Institution means the person or the body of persons for the time being entrusted with the management of the affairs of the Institution;
… … …
(p) “Senior Madrasah” means a Madrasah where the Senior Madrasah Education System is followed.”
4.1 Chapter 2 of the Act inter alia, deals with establishment and composition of the Board while Section 18 deals with constitution of various
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