Biraj Mondal & Ors. Vs State of West Bengal & Ors.

For the Petitioners : Mr. Kamalesh Bhattacharyya : Mr. Sabysachi Mukhopadhyay : Mr. Biswarup Biswas : Mr. Aninda Bhattacharya For the State : Mr. Somnath Ganguli, ld. AGP : Ms. Kalpita Paul (…in WPA 16348 of 2009) : Mr. Tapan Kumar Mukherjee, ld. Sr. Adv. : Mr. Somnath Naskar (…in WPA 1890 of 2020) : Mr. Sirsanya Bandopadhyay (…in WPA 1893 of 2020) Judgment on : 03/09/2025

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Rai Chattopadhyay, J. :-

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(1) A total of 15 teaching and non-teaching staff of three different schools categorized as the minority institutions covered under Article 30 of the Constitution of India have filed three different writ petitions being No. WP 16348W of 2009, WPA 1890 of 2020 and WPA 1893 of 2020.

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(2) Since the subject matter of all the three writ petitions relate inter se, those are heard together and are being disposed of by dint of the instant common judgment.

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(3) The petitioners have been appointed in the respective schools on different dates. What is common in respect of all the petitioners is that the school authority by publication of advertisement had invited applications from eligible persons to be appointed on different posts in the respective schools. Accordingly, the petitioners had filed their respective applications. Thereafter, interview was held in case of all the petitioners by the school authority. The petitioners have succeeded in the interview. Therefore, the names of the petitioners have been enlisted in a panel and they have been provided with appointment letters of different dates respectively, pursuant to which, each petitioner had joined in the respective schools. The panels of successful candidates who have been appointed by the respective minority institutions, were sent before the respondent/District Inspector of Schools (Primary Education), South 24 Paraganas, which respondent is common in all the three writ petitions, as mentioned above (hereinafter referred to as

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“DI”). In all the cases, the DI initially had not taken any step as regards approval of the panel. In some cases, subsequent reminder letter by the school authority as well as representation by the concerned petitioner have also been sent but remained unanswered. Accordingly, the petitioners, by dint of three different writ petitions filed earlier before this Court, had sought for necessary order. The Court on all occasions had intervened and directed the respondent/DI to consider the petitioner’s case.

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(4) The resultant orders are impugned in the three respective writ petitions mentioned above, by dint of which, the DI has refused prayer for approval of panel and thus the petitioners’ prayers for approval of their service have been declined in the said impugned orders.

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(5) The impugned orders are dated August 6, 2009 (in WP No. 16348W of 2009), November 22, 2019 (in WPA No. 1890 of 2020) and November 18, 2019 (in WPA No. 1893 of 2020), in the three writ petitions respectively.

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(6) The common ground for rejection of approval of service of the writ petitioners as apparent from all the three impugned orders as mentioned above, is that the selection and appointment of the petitioners were not made in accordance with the Rules prevalent at the material point of time, that, therefore the appointment of the petitioners was not as per law and no relief can be granted to them. The respondent while rejecting the prayer of the petitioners for approval of service has basically relied on the Government

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Notification No. 1314 (50)-SE(S), dated September 17, 2002 (in short notification No. “1314”).

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(7) Mr. Kamalesh Bhattacharyya who has represented the writ petitioners in all the three cases as mentioned above, has relied on the Government Notification No. 1092/ES/S/10M-104/2011 dated June 6, 2012 (in short notification No. 1092). He says that by virtue of the said notification, power to grant approval of appointment in the teachers of Christian Minority Institution is conferred on the District Inspector of Schools. Also that, once the school authority forwards the panel for approval to the District Inspector of Schools, the District Inspector of Schools shall communicate his decision in respect of approval of appointment within 45 working days from the date of receipt of the application and if the said District Inspector of Schools is unable to approval the appointment he should communicate his views stating the reason of his inability for not according approval of the same with a copy to the Director of School Education. However, on expiry of 30 days from the date of submission of the papers to the office of the concerned District Inspector of Schools the concerned school authority shall issue a reminder with a copy to the Director of School Education, West Bengal and in case no communication of approval is issued from the District Inspector of Schools within 45 working days from the date of receipt of the application from the concerned Education Institution the approval of appointment shall be deemed to have been automatically granted to the extent of filling up vacant sanctioned post of the institution and the District Inspector of

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Schools will issue approval accordingly on expiry of 45 days (Clause 12 of Memo dated 06.06.2012).

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(8) Mr. Bhattacharyya has also relied on the Notification No. 641-Edn(S) dated May 23, 1974 (in short No. “641), which is the “Special Rules” for Management of the Secondary Schools established and run by a Christian Church/Minority Society (Board)/Religious Society/Subsidiary Trust or their successors-in-law, in the State of West Bengal.

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(9) According to Mr. Bhattacharyya a religious or linguistic minority institution is empowered and eligible under the “Special Rules” for appointment of teachers and non-teaching staff in the institution for which only the DI is the sanctioning Authority, who would give sanction and approval to the outcome of such appointment process undertaken by the minority institution presented before it in the form of a panel. Mr. Bhattacharyya has referred to the judgment of the Supreme Court in P.A. Inamdar Vs. State of Maharashtra reported at 2005 Vol. 6 SCC 537 and said that, for a minority Christian institution, the Constitutional protection granted under Article 30(1) would be all pervasive and undeniable. He says that the Court has held as follows:-

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“Mere receipt of the aid does not annihilate the right guaranteed under Article 30 (1) of the Constitution of India the policy of reservation in employment cannot be extended to a minority educational institution as the service in an aided minority educational institution cannot be construed as a service to the State even under Article 12 of the Constitution of India.”

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(10) Mr. Bhattacharyya and Advocate for the petitioners has also submitted that the Managing Committee of the minority institution would be the sole recognized body under the “Special Rules” to take and implement policies regarding recruitment of teachers and staff, so far as minority institutions are concerned, which enjoy protection under Article 30(1) of the Constitution of India. By referring to the judgments of the Supreme Court in Pramati Educational and Cultural Trust Vs. Union of India reported at 2014 Vol. 8 SCC 1 and TMA Pai Foundation Vs. State of Karnataka reported at (2002) 8 SCC 481 he has stated that the institutions governed under Article 30(1) of the Constitution should enjoy the right to establish and administer the institution and the State shall have no power to interfere with the administrative decision and functions of such minority institutions. According to the Court’s verdict, he says that, the power of the State is limited only to promulgate regulatory measures. However, as regards implementation thereof with the day to day administrative functions of the institution, the State shall have no role to play, he says further.

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(11) On behalf of the petitioners, a judgment of this court in Kushadhwaj Mondal Vs. State of West Bengal reported at 2008 1 CLJ 167 has also been relied on. Let the relevant portion thereof be quoted as herein below:-

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“9. For reasons known only to the State Government it never cared to frame any rules or issue any general or special order directing the institute to follow it while appointing members of the staff. The guidelines dated November 26, 1998 and procedure dated August 27, 1999, even before April 8, 2002, were of no legal significance, since they were not

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general or special orders issued or rules laid down by the State Government. The Director of School Education was simply not authorized to issue them. Hence the institute was entitled to proceed on the basis as if they were never in existence. In any case the institute was under no obligation to follow them, and even if the petitioners were appointed in contravention of those guidelines and procedure, the respondents cannot say that the appointments were given illegally.

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_ ** ** _

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11. As to the procedure dated September 17, 2002 laid down by the State Government I find that have no manner of application either to the institute that appointed the petitioners. The procedure was laid down in exercise of powers conferred on the State Government by the provisions in Rule 7 of the “Special Rules” for the Management of Secondary Schools established and run by a Christian Church/Missionary Society (Board)/ Religious Society/Subsidiary Trust, or their successors in law, in the State of West Bengal which were notified by a Notification No. 641-Edn(S)/8B-3/69 dated May 23, 1974. Hence it cannot be said that the procedure dated September 17, 2002, even if treated as a general or special order issued by the State Government, was applicable to the present institute that was always and still is governed by the special rules which were notified by Notification No. 404Edn(S) dated March 19, 1973. For the present institute governed by the 1973 special rules, in fact, neither any special or general order was ever issued by the State Government, nor did it ever lay down any rules in terms of provisions of Rule 7 of the 1973 special rules.”

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(12) The judgment of Kushadhwaj Mondal (Supra) , P.A. Inamdar (Supra) and TMA Pai Foundation (Supra) were later on relied on by this Court in Bidyut Kumar Biswas Vs. State of West Bengal reported at 2011 4 CLT 84 . Mr. Bhattacharyya mentions that, in the case of Bidyut Kumar Biswas (Supra) , this Court has held that the action of the DI by rejecting the prayer for approval of appointment of the petitioner therein, on the plea that prior permission was not taken, has been held as unsustainable, unlawful and invalid. That, the Court directed the DI, in the

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said case to grant approval of appointment to the petitioner therein within a specified period of time.

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(13) Furthermore, the Supreme Court judgment in case of Ivy C. Da Conceicao Vs. State of Goa reported at 2017 3 SCC 619 has been relied on to buttress the argument that the minority institutions covered under Article 30 of the Constitution enjoy the privilege of unfettered right of recruitment of staff and teachers and the same is not in conflict with the observance of principles for fair and transparent procedure.

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(14) Mr. Kamalesh Bhattacharyya has further submitted that, in the instant writ petitions by filing the affidavit-in-opposition, the State respondent and/or DI has shifted its stand which was initially taken by the same in the impugned order. According to Mr. Bhattacharyya if would not be permissible under the law for the State respondent to supplement further reasoning at a later stage in view of the law settled by the Supreme Court in the case of Mohinder Singh Gill Vs. Chief Election Commissioner reported at AIR 1978 Supreme Court 851 .

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(15) Hence, the writ petitioners have prayed for necessary direction to be passed granting approval of their service.

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(16) The State is represented by Mr. Somnath Ganguli, learned Additional Government Pleader. The respondent has made out a case in the impugned order that, at the time of publication of advertisements by the respective school authorities the schools did not possess appropriate number of vacancies as were published for the purpose of being filled up. Therefore, the basis on which the recruitment procedure was undertaken by the respective schools, has been challenged as unfounded, not maintainable and illegal.

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(17) It has been submitted that so far as the school namely, Amjhara Baptist Mission Primary School is concerned, the 1974 Special Rules vide Notification No. 641, would not be applicable in its case, as the same was situated beyond the limits of any urban/municipal area and has been a rural school.

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(18) The Notification No. 1022-Edn(P) dated September 6, 1976 (in short “No. 1022”) has been relied on by the State to say that as per the said notification, the authorities of the Christian minority institutions would be permitted to appoint teachers in the primary schools managed by them, subject to the condition that all teachers must possess the requisite qualifications and experience and that all such appointment be approved by the Director of Public Instruction, West Bengal. It is submitted that later on compulsory prior approval of posts by the Director of School Education, Government of West Bengal has been enumerated in various Government notifications.

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(19) Admittedly, the respective schools in which the petitioners have been working continuously and uninterruptedly for considerable and substantial period of time are the minority institutions covered within the purview of Article 30 of the Constitution. The notification No. 641 is the “Special Rules” provided for the management of secondary schools established and run by a Christian Church/Minority Society (Board)/Religious Society/Subsidiary Trust or their successors-in-law, in the State of West Bengal [as per Rule 1(1)].

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(20) Rule 7 of the Special Rules is worth noting in this case which has provided for powers of the School Committee of a Christian minority institution as described in Rule 1 (1) mentioned above. For the benefit of discussion let that be reproduced as herein below:-

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“7. POWERS OF THE SCHOOL COMMITTEE

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(1) Subject to any rules or orders issued by the State Government or any other authority, competent to do so under the provisions of any Act or rules framed thereunder, the School Committee, shall exercise powers in respect of following matters, namely:

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(a) Appointment of employees (other than Headmaster/Headmistress and Assistant Headmaster/Headmistress) and to prescribe scales of pay and allowances.

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(b) Confirmation and promotion, extension of service beyond the date of superannuation, and taking disciplinary action against employees.

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Provided that in case an employee is not given an extension, he may appeal to the Governing Body against the decision of the School Committee. The decision of the Governing Body shall in such cases be operative. But the Director of the Public Instruction, West Bengal, shall have the right to call for all relevant papers relating to an employee who is not given extension and if the Director of Public Instruction, West Bengal, is not satisfied with the decision of the Governing Body, he may then advise the Governing Body for reconsideration of the matter. The final decision, however, shall lie with the Governing Body, except in the case of Institutions receiving financial assistance from the State Government in any form in which case the decision of the Director of Public Instruction, West Bengal, shall be final.

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(c) Grant of leave other than casual leave to the employees, other than the Headmaster or Headmistress, whose leave will be granted by the Governing Body.

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(d) Management and regulation of the finances of the School.

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(e) Consideration of the audited accounts and preparation of the budget estimates for approval by the Governing Body.

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(f) Preparation of annual report.

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(g) Selection of text and other books, introduction of new teaching courses, planning and execution of all schemes for the development of the Institution and such other matters, subject to the approval of the Governing Body.

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(h) Preparation of list of holidays to be observed in the Institution.

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(i) Sanctioning of deputation facilities to teachers for the purpose of training where such training is in the interest of the Institution.

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(j) Framing of rules and regulations regarding attendance and conditions of service including age of retirement, subject to the approval of the Governing Body.

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(k) Fixation of rates of fees, fines etc. and realization of the same for both curricular and co-curricular activities and other purposes relating to the welfare of the students and the Institution as a whole.

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(l) Dealing with all other matters in respect of which authority has been delegated to the school committee by the Founder Body of the Institution.

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(2) Subject to the direction of the State Government, in respect of every aided institution, the School Committee shall have power-

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(i) to determine the number of teachers and non-teaching employees;

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(ii) to prescribe the scales of pay and allowances and qualifications for recruitment;

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(iii) to prescribe the minimum rates of tuition fees;

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(iv) to approve appointment of teachers;

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(v) to frame rules and regulations for payment of pension;

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(vi) to prescribe the age of retirement;

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(vii) to fix the maximum number of students in the institution and each class.”

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(21) Therefore, it appears that in conformity with the Constitutional principles, Notification No. 641 has been promulgated granting extensive and wide power to the Committee of such a minority school in case of appointment and discipline of its employees including teachers. One of the writ petitioners being in the post of Headmaster shall be governed under Rule 10 of the said Special Rules which may also be quoted as herein below:-

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“ 10. HEADMASTER, ASSISTANT HEADMASTER

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(1) The Headmaster/Headmistress and Assistant Headmaster/Headmistress is appointed by the Founder Body.

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(2) Subject to the general control and supervision of the School Committee, the Headmaster or Headmistress shall be responsible for internal management of the School, including supervision of classes, tone and discipline, school time-table, school library, furniture and equipment, admissions and class promotions and granting of casual leave to the pupils.

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(3) The Assistant Headmaster or Assistant Headmistress shall assist the Headmaster or Headmistress in the internal management of the school, as shall be determined by the School Committee.”

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(22) Appointment of a Headmaster by the founder body is permissible under the Rule and in that case, there would not be any illegality if a person is appointed by the founder body as the Headmaster of a minority Christian school.

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(23) The Court is also inclined to note that in Notification No. 1022, it has been provided that “the Authorities of the Christian Missions be permitted to appoint teachers in the primary schools managed by them from outside the approved panel of the respective municipal areas subject to the condition that all teachers must possess requisite qualifications and experience etc. as may be prescribed by the Government from time to time and that all such appointments be approved by the Director of Public Instruction, West Bengal.” Hence, even by dint thereof, the authority and power for recruitment, is vested only with the school authority.

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(24) It is also worth noting that in the Notification No. 540-SE (Pry.) dated 8^th June, 1998, it has been provided that “The Christian Missions are permitted to appoint teachers in the primary schools managed by them from outside the approved official panel of the District Primary School Council, provided all such appointments should be approved by the Director of School Education, West Bengal.”

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(25) In Notification No. 974-SE (Pry.) dated 16^th September, 1998, it has been provided that, “the existing system for appointment of primary school teachers in the schools run by the Christian Missions will continue until further orders.” Therefore, the provision is only unchanged and similar with the Notifications No. 540.

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(26) On careful perusal of the notifications as mentioned above, it appears that the power and function of the State Authority as regards appointment of the teaching and non-teaching staff in a Christian Minority School has been provided in the “Special Rules” to be to the extent of approval of appointment made by the School Managing Committee and not beyond. As stated earlier, in the impugned orders, the respondent/DI has held the appointment of the writ petitioners not to have been done in accordance with the existing Rules. In this regard, the provisions under Notification No. 1314 may be taken into consideration along with the “Special Rules” vide the Notification No. 641, for recruitment of teaching and non-teaching staff including Headmaster of a minority institution.

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(27) As per notification No. 1314,

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“In exercise of the Power conferred under Rule 33 of the Rules for Management of Recognised Non-Govt. Institutions (Aided & Unaided), 1969 as amended from time to time read with Rule 7(i) of the special Rules for Management of Secondary Schools established and run by a Christian Church Missionary Society (Board), Christian Religious Society, etc. to which the provision of Article 30 of the Constitution of India applies, the Governor is pleased to make rules in terms of Government Order No. 641-Edn.(S) dated 23.05.1974 as amended from time to time for compliance by the above mentioned recognised aided and D.A. getting Non-Govt. Secondary Institutions in connection with recruitment of Teaching & Non-Teaching Staff including Headmaster/Headmistress/ Assistant Headmaster/Assistant Headmistress, which the Department of School Education, Government of West Bengal, accepts to have been established and administered by 'Minority'.

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This order will take immediate effect in cancellation of all other previous orders of the School Education Directorate in respect of procedure for recruitment of Heads of the Institutions and Teaching and Non-Teaching Staff in Non-Govt. Secondary Institutions as stated above.

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Procedure for recruitment of Teaching and Non-Teaching staff including Headmaster/ Headmistress/Assistant Headmaster/Assistant Headmistress in Non-Government Aided Secondary Schools/Higher Secondary Schools which the Department of School Education, Government of West Bengal, accepts to have been established and Administered by 'Minority'.

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Directions:

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(1) (a) All appointments of Teaching Staff including Headmaster/Headmistress/ Assistant Headmaster/Assistant Headmistress shall be made after a proper selection process as per permission of the District Inspector of Schools (S.E.) of the concerned district. (b) No appointment in any post will be made if the post is not sanctioned by the authority. All vacancies should be filled up as per reservation rules made by the Government of West Bengal.

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(c) No male member shall be eligible for appointment in any Girls' School.

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(d) No candidate shall be called for Interview if he/she is not a citizen of India and below 18 years of age.”

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Also the said notification has provided for formation of selection committee and mode of selection of Headmasters as well as assistant teachers. The said notification has provided for as to when appointment can be made, the mode of selection by formation of Select Committee, the basic qualifications required in terms of age, education and experience. Pertinent is to note that the provision of holding interview of the candidates who has responded to the advertisement for recruitment has been made therein, in the said Notification No. 1314. The same has further provided that as per merit, the panel has to be prepared.

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(28) This Court in the case of Bidyut Kumar Biswas (Supra) has held that :-

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“11. RULE 7 of the said special Rules defines the power of the School Committee which apart from others includes powers relating to the appointment and determination of number of teachers and non teaching staffs.

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12. 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. The Supreme Court in case of Secretary, Meslankar Syrian Catholic College v. T. Jose reported in (2007) 1 SCC 386, upon considering the law laid down in case of T.M.A. Pal Foundation (Supra) and P.A. Imandar v. State of Maharashtra reported in 2005 (6) SCC 537 held:

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"19. The general principles relating to establishment and administration of educational institution by minorities may be summarised thus:

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(i) The right of minorities to establish and administer educational institutions of their choice comprises the following rights:

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(a) to choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution;

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(b) to appoint teaching staff (teachers/lecturers and Headmasters/ Principals) as also non- teaching staff, and to take action if there is dereliction of duty on the part of any of its employees;

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(c) to admit eligible students of their choice and to set up a reasonable fee structure;

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(d) to use its properties and assets for the benefit of the institution.

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(ii) The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-a-vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation, etc. applicable to all, will equally apply to minority institutions also.

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(iii) The right to establish and administer educational institutions is not absolute. Nor does it include the right to mala minister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and nonteaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1).

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(iv) Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/lecturers by adopting any rational procedure of selection.

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(v) Extension of aid by the State does not alter the nature and character of the minority educational institution. Conditions can be imposed by the State to ensure proper utilisation of the aid, without however diluting or abridging the right under Article 30(1)."

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(29) The Court takes note of the fact that the appointment of all the writ petitioners have been preceded with publication of advertisement in the newspaper, conduct of interview and preparation of a panel. It is not the case of the respondent/State that the writ petitioners were not eligible due to lack of adequate qualification. In that case, in consideration of the notifications No. 641, 1314, 540 and 974, the Court finds no illegality or impropriety in the action of the respective school Authorities which are the minority institutions within the scope of Article 30 of the Constitution.

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(30) The Court is constrained to hold that excepting the ground of the appointment of the writ petitioners allegedly not being in terms of the existing Rules, the respondent/DI had not cited any other reason in the impugned orders for rejection of their prayer for approval of service. In that view of the matter, the Court is further constrained to hold that all the other reasons/grounds which have been supplemented by the respondent Authority while defending its stand of not to grant approval of the petitioner’s service, in the instant writ petition, would not be maintainable in the eye of law, in view of the law settled by the Supreme Court in the case of

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Mohinder Singh Gill (Supra) . The Courts holds therein: -

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"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji: (AIR p. 18, para 9)

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'9. ... public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.'

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Orders are not like old wine becoming better as they grow older."

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(31) On the entire discussion as above, it can unhesitantly be found that the impugned orders in the three writ petitions as above dated August 6, 2009 (in WP No. 16348W of 2009), November 22, 2019 (in WPA No. 1890 of 2020) and November 18, 2019 (in WPA No. 1893 of 2020) respectively is not in conformity with the Rules and law and is thus arbitrary and unlawful. Therefore, in exercise of power of judicial review, the Court finds impugned orders dated August 6, 2009, November 22, 2019 and November 18, 2019 respectively to be liable to be set aside.

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(32) Therefore, this Court allows the writ petitions no. WPA 16348 of 2009, WPA 1890 of 2020 and WPA 1893 of 2020 with the following directions:-

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i) Impugned order dated August 6, 2009 (in WP No. 16348W of 2009), November 22, 2019 (in WPA No. 1890 of 2020) and November 18, 2019 (in WPA No. 1893 of 2020) are set aside.

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ii) All the petitioners in the three writ petitions as mentioned above, are entitled to be approved in their service.

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iii) Respondent/District Inspector of Schools (Primary Education, South 24 Paraganas is directed to immediately grant approval of service to the writ petitioners and appropriate pay fixation to them.

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iv) The entire exercise as above, should be concluded within a period of four (04) weeks from the date of communication of copy of this judgment.

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(32) Urgent certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.

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(Rai Chattopadhyay, J.)

Biraj Mondal & Ors. v. State of West Bengal & Ors.

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Biraj Mondal & Ors. v. State of West Bengal & Ors.

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