Marwari Balika Vidyalaya and Others vs West Bengal Board of Secondary Education and Others

Monoranjan Mallick, J.—The petitioners pray for a writ of Mandamus commanding the Respondents to forthwith to withdraw and/or cancel and/or rescind the impugned decision dated 19th December 1987 of the appeal Committee of the West Bengal Secondary Education Board as communicated by the letter No. 5043-G dated 29th January, 1988 being annexure ''U'' to the writ petition and to forbear from giving any effect to the same in any manner whatsoever, and for further consequential reliefs :

The petitioners state as follows :

The petitioner No. 1 Marwari Balika Vidyalaya is a registered society duly registered under the Societies Registration Act 1860. The objects. of the petitioner No. 1 were and still are, inter alia, to impart, promote and spread education in Arts, Science and Commerce to girls and women and to do other acts, deed and things as are incidental or conducive to the attainment of the said object. The said society was established by the members of the Marwari community in the city of Calcutta who are all citizens of India. The said Marwari community is a distinct class which, has a distinct language which is exclusively used and spoken by the Marwari community and has a script as ''Muria''.

Since about early 18th Century people mainly businessmen from the Western part of India which is now called as "The State of Rajasthan", came down to Bengal in connection with trade and commerce. With the growth of industry, the influx of Marwari community in West Bengal and particularly in the city of Calcutta increased and they formed and still form a distinct minority community in the state of West Bengal.

To get rid of the initial hesitation of the orthodox Marwari families in sending their children to schools and colleges, a few social reformers of the Marwari community started in or about 1920 under the name and style of "Marwari Balika Vidyalaya" and the same was managed exclusively by the members of the Marwari community. The Marwari Balika Vidyalaya being the petitioner No. 1 was registered under the Societies Registration Act 1860 on 7th September, 1951. After its registration, the society undertook an expansion programme and initiated a drive for collection of donation from the members of the Marwari community with which the land and the buildings were purchased at 11, Lord Sinha Road, Calcutta. In or about 1954 a school by the name of Shri Shikshayatan was started at 11, Lord Sinha Road, Calcutta. The said school "Sri Shikshayatan" has been established by the Marwaris in West Bengal, a minority community based, inter alia, on language, culture and heritage and has acquired a right under the Constitution of India to administer the said educational institution according to their choice. Ever since its inception the aforesaid educational institution in respect whereof the provision of Article 30 of the Constitution of India apply, is run by its Managing Committee. As such, the West Bengal Board of Secondary Education has no power to interfere with its management nor could they have any say in the composition, powers and functions of its Managing Committee. Under the provision of Rule 33 of the Management of Recognised Non-Government Institutions (aided and unaided) Rules, 1969 the said society applied to the West Bengal Board of Secondary Education for its Special Constitution and the Board had from time to time framed such rules for the composition of the Managing Committee of the said school. The petitioners further state that as an educational institution run by minority community the provisions of Management of Recognised Non-Government Institutions (aided and unaided) Rules 1969 did not apply to the said institution and the application made to the respondent authority under the said rules was made by way of abundant caution and could not have amounted to a waiver or relinquishment of any right.

By a purported notice dated 23rd April, 1986, the Respondent West Bengal Board of Secondary Education purported to appoint an administrator of the said school. The said notice dated 23rd April 1986 was challenged in a writ petition under Article 226 of the Constitution being Matter No. 690 of 1986. The principal ground on which the said purported notice dated 23rd April, 1986 was challenged was that the said school has been established and is being administered by a minority Linguistic community in the State of West Bengal and was entitled to protection under Article 30 of the Constitution. The said matter No. 690 of 1986 was finally disposed of by the judgment and order of this Court dated 3rd April, 1987 whereby the rule in the said matter was made absolute and it was declared that the said school was entitled to the protection of Article 30 of the Constitution, a copy of the said judgment is annexed as annexure ''B'' to this petition.

In the facts and circumstances as aforesaid, there cannot be any dispute that the provisions of Article 30 of the Constitution are fully applicable to the said school.

The Respondent No. 4, Mahesh Chandra Chowdhury was appointed as an Accountant in the said school in 1979. At the time of his appointment, the Respondent was married and had a daughter. On or about 17th June 1985 Shri Banke Behari Kejriwal, father of Miss. Neera Kejriwal, a young girl student of Class X in the said school, came to the said school and reported to the authorities of the said school that the respondent Mahesh Chandra Chowdhury had been appointed as the private Tutor of the said Neera Kejriwal for sometime past and that the said Respondent Mahesh Chandra Chowdhury and the said Neera Kejriwal had developed amorous relationship and that on or about 19th May, 1985 the Respondent Mahesh Chandra Chowdhury was found sitting in objectionable position. The authority of the said school also came to know that the Respondent Mahesh Chandra Chowdhury had induced the said Neera Kejriwal to agree to marry him suppressing the fact that he had already married. Shri P. D. Pandey, the then Manager of the said school made enquiries including questioning the respondent Mahesh Chandra Chowdhury regarding the affairs whereupon the respondent Mahesh Chandra Chowdhury admitted that he had made a proposal to the said Neera Kejriwal. Thereafter keeping in view the prestige and future of the said Neera Kejriwal and also the reputation and good-will of the said school efforts were made to persuade the respondent Mahesh Chandra Chowdhury to submit his resignation which he, however, refused. The aforesaid conduct of the respondent created a commotion and several representations were made asking for stern action against Mahesh Chandra Chowdhury. Having regard to the hostile attitude of the said students and staff of the said school, the respondent Mahesh Chandra Chowdhury ceased to attend the said school from 8th July, 1985. However, by letters dated 10th July 1985 and 13th July 1985, the respondent No. 4 made certain untenable and unfounded allegations for which he had been prevented from performing his duties and signing the Attendance Register of the said school since 8th July 1985. The Secretary of the said school, however, by the letter dated, 29th July 1985 replied to that letter stating, however, the correct factual position. The Respondent No. 4, however, by the letter dated 12th August 1985 purported to deny the statements made regarding him in the said letter dated 29th July 1985.

In this background the Managing Committee of the said school held a meeting on 29th July 1985 and by a resolution of the same date authorised the Principal and the Secretary of the said school to make enquiry into the matter. Accordingly, the Principal and the Secretary of the said school made necessary enquiries and the Managing Committee" of the said school by its meeting dated, 29th August 1985 considered the entire matter including the letter dated 12th August 1985 written by the said respondent Mahesh Chandra Chowdhury as well as the report made by the Principal and Secretary of the said school and by a resolution of the same dated, 29th August 1985 decided to terminate the service of the said Respondent, Mahesh Chandra Chowdhury and Sri Mahesh Chandra Chowdhury was communicated the said decision and it was also indicated that he would be paid three months'' salary in lieu of the notice. The above letter dated, 29th July 1985 sent to the Respondent No. 4 as Annexure ''G'' to this petition. However, the Respondent No. 4 challenged the above decision and asked the Managing Committee to withdraw it but the Managing Committee by its reply reiterated its earlier decision. The Respondent No,. 4 thereafter filed a writ petition in the High Court at Calcutta challenging the validity of the said letter of termination dated,. 21th August 1985 being Civil Order No. 1476 (W) of 1986. The said school contested the said writ petition but ultimately the said writ petition was disposed of by His Lordship the Hon''ble Mr. Justice Umesh Chandra Banerjee by an order dated 5th July 1986 dismissing the writ petition in view of the submissions made on behalf of the learned Counsel for the Respondent No. 4 Mahesh Chandra Chowdhury that he had already preferred an appeal before the Board of Secondary Education.

Even though, it appears from the order dated; 15th July, 1986 passed by U. C. Banerjee, J. that an appeal was pending before the Appellate Committee of the West Bengal Board of Secondary Education but it appears that a cover of letter dated 21st November 1986, the Respondent Board forwarded the said school a copy of an appeal dated 17th September, 1986 preferred by the Respondent Mahesh Chandra Chowdhury and required the said school to submit its observations within the time specified thereunder.

In response the said school by its letter dated 24th January 1987 pointed out, inter alia, that the said school enjoyed the protection under Article 30 of the Constitution of India but the Appellate Committee, however, fixed the date of next meeting of the Appellate Committee on 30th April 1987. In reply the said school by its letter dated 27th April 1987 informed the Respondent board that the said school had nothing more to add to what was contained in the earlier letter dated 24th January 1987 until the decision of the said writ application filed by the school and which was pending in this court, namely the Matter No. 690 of 1986..

By the letter dated 21st May 1987 the said school duly, informed the Respondent Board that the judgment and order dated 3rd April, 1987 passed by the High Court in Matter No. 690 of 1986 has held that the said school had been enjoying the benefit of Section 30 of the Constitution. However, without prejudice to the objection relating to the maintainability'' of the appeal the said school forwarded a copy of the said affidavit being the affidavit of P. D. Pandey dated the 4th April, 1986 in CO. No. 1476 (W) of 1986. The appeal committee, however, by his letter dated 8th July, 1987 intimated that the hearing of the appeal was adjourned. By a notice dated 27th November 1987 the Respondent Board informed the said school that the next meeting of the. Appeal committee in relation to the appeal filed by the Respondent Mahesh Chandra Chowdhury and another appeal filed by Sm. Shanti Mukherjee would be heard on 19th December, 1987. In reply the said school by its letter dated 16th December 1987 informed the Respondent Board that the said school remains closed on 19th December 1987 and there was nothing more to be added then what had already been explained in the said letter dated 21st May 1987.

By a letter dated, 29th January 1988 the Respondent Board informed the said school regarding a decision taken by the Appeal Committee of the Respondent Board on 19th December 1987 in connection with the appeal preferred by Smt. Shanti Mukherjee to the effect that the hearing of the appeal was being adjourned to enable the said school to file papers in support of the claim that the provision of Article 30 of the Constitution were applicable. However, by another letter dated 5043/G dated, 29th January 1988 the Respondent Board informed the said school about the purported decision of the Appeal Committee of the Respondent Board taken in the meeting held on 19th December 1987 in relation to the appeal filed by the Respondent Mahesh Chandra Chowdhury that the appeal had been allowed and the Respondent Mahesh Chandra Choudhury should bet reinstated with effect from 29th August 1985 with certain consequential benefits. A copy of the said letter dated 29th January 1988 is annexed as annexure ''U'' to this petition. ,

The writ petitioners therefore challenge the above decision of the Appeal Committee on the ground that the Respondent Board and/or the Appeal Committee had no power and/or authority or jurisdiction to entertain and/or decide the concerned appeal, that admittedly and as declared by this High Court, the said school is an institution established and administered by the Linguistic Minority in the State of West Bengal that the provision of Article 30 of the Constitution being applicable to the said school, the provisions relating to appeals contained in the West Bengal Board of Secondary Education, 1963 and/or the Regulations framed thereunder would have no manner of application, that the decision, of the Appeal Committee has a direct interference with the management and administration of the said school and that without prejudice to the above submissions made, the petitioners state and submit that the appeal committee of the Respondent Board failed to enter into the consideration of the relevant matters in deciding the appeal, that the main decision of the appeal committee discloses errors of law apparent on the face of it in as much as it purports to allow the appeal for alleged non-compliance with the provisions of Rule 28(8) of the Rules, of Management of the Recognised Government Institutions, (aided and un-aided) 1969, that the Rules of 1969 including Rule 28(8) could have no manner of application to the said school in view of the provisions of Article 30 of the Constitution, that the impugned decision is solely based on the misconceived plea that there had been noncompliance of Rule 28(8) of 1969 rules, that in any event, the appeal committee of the respondent board has failed to consider the merits of the appeal which it was legally bound to do and that the impugned decision is arbitrary and made on irrelevant consideration and violation of the principle of natural justice as well as violative of Article 30 of the Constitution. It is also contended that the appeal committee, of the Respondent Board has taken up inconsistent and contradictory positions in relation to the appeal preferred by Sm. Shanti Mukherjee and the appeal preferred by the Respondent Mahesh Chandra Chowdhury without any basis and/or reason.

The Respondent Nos. 1; 2 and 3 even though have not filed any affidavit-in-opposition have opposed the writ petition contending inter alia that in view of the decision of the Supreme Court specially the decision of the Supreme Court in Frank Anthony Public School Employees'' Association Vs. Union of India (UOI) and Others, , Christian Medical College Hospital Employees'' Union and Another Vs. Christian Medical College Vellore Association and Others, and decision of All Bihar Christian Schools Association and Another Vs. State of Bihar and Others, that State can impose regulatory measures even in respect of minority educational institutions and such measures cannot in any circumstances treated with the interference with the right guaranteed by the Constitution under Article 30(1) of the Constitution to an educational institution established or maintained by any minority community and even if it be conceded that Sri Shikhayatan is an educational institution established and administered by the Marwari community in West Bengal, even then the provision of appeal to the Appeal Committee of the Board of Secondary Education which is an impartial and independent appeal committee cannot in any way interfere with the fundamental right guaranteed by a minority institution under Article 30(1) of the Constitution.

The Respondent No. 4 Mahesh Chandra Chowdhury has filed affidavit-in-opposition and contested the writ petition. In the affidavit-in-opposition the Respondent No. 4 Mahesh Chandra Chowdhury has challenged the claim of the petitioners that the school Sri Shikshayatan is an institution administered by the minority community. It is contended that it is a school run by a society registered under the Societies Registration Act, that in the Higher Secondary Section the students of non-Marwari community 60% and Marwari community is 40%, that the medium of instruction of the school is Hindi, that no Muria script is adopted by the Institution, that the school authorities themselves submitted an application to the Board of Secondary Education for grant of special Constitution and the special Constitution under Rule 33 of the Rules and Management of the Recognised Non-Government Institutions (aided and unaided) 1969 and the special constitution granted to a school run by society has been granted and that the petitioners cannot take the plea that the provisions of the said Rules are not attracted.

It is contended that the Respondent No. 4 was the Secretary of Sri Shikshayatan non-teaching staff association and raised demands of non- teaching employees and the school authorities have been forced to accept some of their demands, that the respondent No. 4 also from, time to time pointed out various financial irregularities committed by the said Institution one of which is committed by Shri P.D. Pandey who claimed himself the Manager of the Institution as a result thereof Shri Pandey bears personal grudge against the Respondent No. 4 and as such the management and Sri P. D. Pandey are always trying to victimise the respondent No. 4 on one pretext and another and on any flimsy ground; that the Respondent No. 4 is a permanent employee of the said Institution, that on or about 8th July, 1985 when the Respondent No. 4 reported for duty and was about to put his signature in Attendance Register but Shri P.D. Pandey ordered him not to do it, that he approached the Secretary who told him that he would be given a letter later on in that regard, that as the respondent No. 4 could not attend his duties he made several representations but in the meantime some false allegations were cropped up against the Respondent No. 4 and thereafter without giving any opportunity of denying and disputing the allegations levelled against him by a purported letter dated 29th August, 1985 the services of the respondent No. 4 who was a permanent, member of the non-teaching staff was allegedly terminated on the allegation that he could not be entrusted with employment in the said institution and that the management has lost confidence on him, that as his representation failed he filed an appeal to the Appeal Committee and had also filed a writ petition and that the Appeal Committee had rightly set aside the order of his termination from service and that the petitioners without any reasonable cause ceased to attend the hearing of the Appeal Committee and the Appeal Committee was in the circumstances justified in disposing of the appeal ex parte, and that the present writ petition is therefore not entertainable. It is also contended that Sri Shikshyatan not being a minority educational institution cannot get any protection under Article 30 of the Constitution and that the Appeal Committee of the Board of Secondary Education was perfectly justified in setting aside the order of termination of service of the Respondent No. 4.

The first point which needs decision is whether Sri Shikhayatan School situated 11, Lord Sinha Road has been established and is being administered by any minority community in the State of West Bengal and whether such an institution is protected under Article 30(1) of the Constitution. Article 30(1) of the Constitution is as follows;

"30(1)-All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice."

The writ petitioners have averred that a few social reformers of Marwari community started in or about 1920 a school Marwari Balika Vidyalaya and the same was managed exclusively by the members of the Marwari community and has thereafter the petitioner No. 1 Marwari Balika Vidyalaya has been registered as a registered society under the Societies Registration Act 1860 and after the registration of the society it undertook an expansion programme and initiated a drive for collection of donation from the members of the Marwari community with which the land and buildings were purchased at 11, Lord Sinha Road and on, or about 1954 a school by the name of Sri Shikshayatan was started at 11, Lord Sinha Road, Calcutta, the said school was given recognition by the West Bengal Board of Secondary Education in 1956.

On behalf of respondent No. 4 the Memorandum of Association of the Marwari Balika Vidyalaya has been produced and it is urged that the aims and objects of the said society was merely general in nature for imparting education and that in none of the objects of the society there was any object to conserve the education and culture of the Marwari community in the State of West Bengal.

In order to get the protection under Article 30(1) of the Constitution, it is only to be established that the educational institution in question has been established and administered by any minority community. There is clear averment that the registered society, namely, Marwari Balika Vidyalaya has been established by the members of the Marwari community within the State of West Bengal and the land at 11, Lord Sinha Road and the said school building has been acquired with the fund raised from the members of the Marwari community within the State of West Bengal. The Respondent Nos. 1, 2 and 3 have not filed any affidavit-in-opposition to challenge the above averments. The Respondent No. 4 also does not specifically challenge the above averments even though the respondent No. 4 does not admit Sri Shikshayatan to be an educational institution established and administered by any minority community. But when it cannot be disputed that the Marwari community is a minority community within the State of West Bengal then if such a community establishes an educational institution in the State of West Bengal and administers it then even if such educational institution does not impart education in Muria language and in Hindi and even if such educational institution admits even non-marwari students, it cannot be said that it is not an educational institution established and maintained by a Linguistic community, namely, Marwari community.

I have seen the Memorandum of Association of the petitioner No. 1. The names of trustees of the said society which is entrusted with the Management of the society including its school, namely, Sri Shikshyatan, are all members of the Marwari community. Therefore, I am unable to accept the contentions of the Respondent No. 4 that Sri Shikshayatan is not an institution established and maintained by the Marwari community which is a linguistic minority in the State of West Bengal. There is also no doubt that similar question arose in the Matter No. 690 of 1986 in which the trustees of the petitioner No. 1 Marwari Balika Vidyalaya challenged the notice issued by the Board of Secondary Education, West Bengal appointing an Administrator. The copy of the said writ petition has also been produced before me. The similar claim was made in the writ petition that Sri Shikshayatan was an educational Institution established and administered by the Marwari community which is a linguistic minority in the State of West Bengal. Some of the respondents of this case were also respondents in the said writ petition. B.C. Basak, J. by the order dated 3.4.87 has relied on his own decisions dated 18th and 19th September, 1986 in Matter No. 760 of 1979 and a decision dated 21st November, 1986 in Matter No. 854 of 1979 and has observed that the Marwari community is also a minority community and having observed it he allowed the writ petition and set aside the impugned order of the appointment of the Administrator.

The above decision also supports the case of the writ petitioner that the learned Judge in Matter No. 690 of 1986 on the finding that the Marwari community is a minority community set aside the order passed by the Board of Secondary Education appointed an Administrator in Sri Shikshayatan.

On behalf of the Respondents, it is contended that the learned Judge even though has observed that the rule is made absolute but actually no rule has been issued and no question arose to make the rule absolute. The decision of the Supreme Court reported in A.P. Christians Medical Educational Society Vs. Government of Andhra Pradesh and Another, has been referred to me in which it has been observed that when a contention is raised before the Court that the institution is a minority institution, the court has undoubted duty to pierce the veil and discover whether there is lurking behind it no minority at all and in any case minority institution/The Supreme Court has also observed in that decision that the purpose of Article 30(1) is not to allow the bogies to be raised by Board of Trustees but to give the minority a sense of security and feeling of confidence and the right to conserve language, script, and culture. of the linguistic minorities. In that decision the Supreme Court has also observed that what is important and what is imperative is that there must exist some real positive index to enable the institution to be identified as an educational institution of the minorities.

There is no doubt that when a claim is put forward by any institution that it is an educational institution established and administered by any minority community, then the court has to ascertain as to whether the said claim is true or not.

On behalf of the Respondent No. 4, the Articles of Association of Marwari Balika Vidyalaya and the prospectus of the Sri Shikshayatan have been produced to show that there is nothing to show that it is an educational institution to conserve the language, script and culture of the Marwari community in the State of West Bengal and that it is merely an educational institution established by a society registered under the Societies Registration Act, 1860 for imparting education to the girl students.

I have already indicated that the Respondent No. 4 could not challenge the contention of the writ petitioners that the petitioner No. 1 has been established by the Marwari community living in the city of Calcutta and the State of West Bengal. It cannot also be disputed that after the registration-of the said society by way of expansion programme of the said society Sri Shikshayatan school has been established at 11, Lord Sinha Road. It is managed by the petitioner No. 1 through the Board of Trustees, I have already indicated that the members of the society of the petitioner No. 1 are all members of the Marwari community. Therefore, I am, unable to accept the contention of the respondent No. 4 who is alone contesting the claim of the petitioner No. 1 that Sri Shikshyatan is neither established nor maintained by any minority community. I am satisfied from the materials produced as well as from the judgment of B.C. Basak, J. that the Marwari community being a linguistic minority in the State of West Bengal and having established Sri Shikshyatan, the said educational institution is an educational institution established and administered by the Minority community in the State of West Bengal. Therefore, I have no doubt in my mind that the protection conferred under Article 30(1) of the Constitution is available to this educational institution.

I would now take up the main contention raised in this writ petition, namely, whether the provision for appeal as contained in Section 22 of the Board of Secondary Education Act, 1963 and the Regulations framed thereunder interfere in any way, the right of the educational Institution established and administered by the petitioner No. 1 guaranteed under Article 30(1) of the Constitution.

On behalf of the petitioners, it is contended that such provision of appeal infringes the right of Management of the educational institution established and administered by the Marwari community. It is also contended that the Appeal Committee has illegally set aside the order of the Managing committee mainly, on the ground that'' before termination of the service of the Respondent No. 4, the approval of the Board was not taken from the West Bengal Board of Secondary Education as provided Rule 28(8) of the Rules of Management of the Recognised Non-Government (Aided and unaided) Institution 1969. It is submitted that in the series of decisions of the Supreme Court it has clearly held that such a provision for obtaining the prior approval of the Board of Secondary Education or any other extraneous authority before terminating the service of an employee of the educational institution protected under Article 30(1) of the Constitution interferes with the right of management of the minority institution like Sri Sikshayatan.

On behalf of the respondents, it is contended that when the Sri Shikshayatan has already applied for Special Constitution from the West Bengal Board of Secondary Education and has been granted such Special Constitution under the Rules of Management of the Recognised Non- Government Institutions (aided and unaided) 1969 then such educational institution has to follow the provision of Rule 28(8) of the said Rules and has to take the prior approval of the Board before terminating the service of any member of the teaching and non-teaching staff of the school.

It is also contended that the provision of appeal to the Appellate Authority which is an impartial tribunal does not in any way interfere with the right of Management of an educational institution established and administered by any minority authority and the same has been clearly upheld by the Supreme Court in the case of Frank Anthony Public School Employees'' Association Vs. Union of India (UOI) and Others, It is also contended that the Supreme Court in Christian Medical College Hospital Employees'' Union and Another Vs. Christian Medical College Vellore Association and Others, has also held that the provision of Industrial Disputes Act creating machinery for reference of dispute to the Industrial Tribunal does not in any way interfere with the right of administration of a minority educational institution guaranteed under Article 30(1) pi the Constitution. My attention has also been drawn to another decision of1 the Supreme Court reported in All Bihar Christian Schools Association and Another Vs. State of Bihar and Others, and it is contended that the appeal regulations are for the welfare of the employees in general and merely give them an access to an imperial tribunal by providing a machinery for resolving the disputes between the management of the School and its employees and such a provision can in no way interfere that the protection given to the minority institution under Article 30(1) of the Constitution.

Both the petitioners as well as the respondents have referred to me the decisions of the Supreme Court as regards the extent of the fundamental rights guaranteed by the Constitution under Article 30(1) of the Constitution. The decisions which have been referred to me are in Re : Kerala Education Bill, 1957, AIR 1958 SC 596, Rev. Sidhaj Bhai v. Sovai AIR 1953 SC 540, State of Kerala, etc. Vs. Very Rev. Mother Provincial, etc., The Ahmedabad St. Xavier''s College Society and Another Vs. State of Gujarat and Another, All Saints High School, Hyderabad and Others Vs. Government of Andhra Pradesh and Others, Frank Anthony Public School Employees'' Association Vs. Union of India (UOI) and Others, , Christian Medical College Hospital Employees'' Union and Another Vs. Christian Medical College Vellore Association and Others, and All Bihar Christian Schools Association and Another Vs. State of Bihar and Others, .

I have carefully considered the above decisions cited before me. So far as the question as to whether the provision of prior approval of the Board of Secondary Education as contained in Rule 28(8) and the concerned Rules is concerned, in several decisions of the Supreme Court similar provision is held to be interference with the right of management of the educational institution run by a minority community. Such a provision has been struck down in The Ahmedabad St. Xavier''s College Society and Another Vs. State of Gujarat and Another, to be violative of Article 30(1) of the Constitution. In all decisions it has been pointed out that the right established by Article 30(1) is a fundamental right declared in terms absolute. It is intended to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their choice. Even though, in i all these decisions, the power of the State to regulate the conditions of employment of teacher, and health, hygiene and physical training of students has been recognised, the said regulations have been recognised because the minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions, or under the guise of exclusive right of management, to decline to follow the general pattern. But the Supreme Court has clearly held in all these decisions that the regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or recognition must be directed to making the institution while retaining its character as a minority institution effective as an educational institution. But such regulations must satisfy a dual test, namely, the test of reasonableness and the test that it is regulative of the educational character of the institution and it will conduce to make the institution an effective vehicle of education for the minority community or other persons who resort to it.

It is clearly pointed out in all these decisions that the minority institution has no right to mal-administration. Even then in several decisions the provision for taking prior approval of an external authority before dismissal or removal of service of an employee of minority educational institution according to the Supreme Court is violative of the Article 30(1) of the Constitution. Only in All Bihar Christian Schools Association and Another Vs. State of Bihar and Others, the Supreme Court has approved as reasonable regulatory measure the clauses (a) to (k) of Section 18(3) of Bihar Non-Government Secondary Schools (Taking over of Management and Control) Act, 1982 providing among others limited power on the School Service Commission for granting approval of appointment and dismissal of a teacher which are necessary in the interest of educational need and discipline of minority school itself. But Rule 28(8) confers unlimited power on the Board either to approve or not to approve any dismissal and consequently it directly encroaches on the right of management of a minority educational institution.

I would now come to decide as to whether the right of appeal conferred on an employee of an educational institution recognised by the Board of Secondary Education in Section 22 of the West Bengal Board of Secondary Education Act to prefer appeal to appeal Committee of the Board violates the fundamental right of a minority conferred by Article 30(1) of the Constitution.

Prior to the decision of the Supreme Court in Frank Anthony''s case the Supreme Court all along took the view that when a right of appeal was confirmed even to the Vice-Chancellor of University against the order of dismissal of an employee of an educational institution administered by a minority community such right of appeal infringed Article 30(1) of the Constitution. However, in Frank Anthony''s case the Supreme Court has approved Section 8(3) of Delhi School Education Act 1973 which provides for an appeal to the tribunal constituted u/s 11 consisting of a person who has held the office of the District Judge or any equivalent office as reasonable. The Supreme Court has observed that such an appeal is not to a departmental officer but to a tribunal manned by a person, who has held office of the District Judge and who is retired, to exercise his power not arbitrarily but in the same manner as a court of appeal under the CPC that the right of appeal itself is confined to a limited classes of cases, namely, those of dismissal, removal or reduction in rank and not to every dispute between the employee and the management and the limited right of appeal, according to the authority constituted to hear the appeal and the manner in which the appellate authority is required to be exercised make the provisions for an appeal perfectly reasonable.

On behalf of the respondents this decision of the Supreme Court in Frank Anthony''s case has been relied upon and it is urged that the appeal committee constituted u/s 22 of the West Bengal Board of Secondary Education Act is also, an independent tribunal presided over by Judicial Officer, that it is not an appeal to a departmental officer and that this is the only machinery available to a member of the staff of an educational institution for redressal of the grievances before impartial tribunal against any illegal or arbitrary action taken by the Managing Committee of an educational institution and this right of appeal to an impartial tribunal being reasonable the members of the staff of the minority educational institutions should enjoy such right otherwise such employees would have no remedy whatsoever if the Managing Committee arbitrarily terminates the service of an employee under the garb of the constitutional pro- section of Article 30(1) of the Constitution.

On behalf of the petitioners the decision of the Frank Anthony''s case is sought to be distinguished. It is urged that the Appeal Committee constituted u/s 22 of the West Bengal Secondary Education Act, 1963 cannot be treated to be an impartial tribunal, that the appeal provision in Section 22 is against every decision of the Managing Committee of the School and is not limited only in respect of the dismissal or removal of service of the employees and that the principle laid down in Frank Anthony''s case cannot be applied to this case and the provision of appeal to the appellate authority of the West Bengal Board of Secondary Education clearly interferes with the right of management of educational institution of a minority community guaranteed under Article 30(1) of the Constitution and it must be held that such provision of appeal being violative of Article 30(1) of the Constitution the appellate authority of the Secondary Education Act, 1963 did not have any jurisdiction to entertain such an appeal of an employee of a minority educational institution.

From a close analysis of the decisions of the Supreme Court referred to me, I am of the view that in the matter of extent of regulatory measures of the minority institutions, the Supreme Court has divided the minority institutions in three categories, out of which only one category being the schools not receiving any financial aid or recognition enjoy greater freedom in the matter of regulatory measures. This has been reiterated in the latest decision being All Bihar Christian Schools Association and Another Vs. State of Bihar and Others, Even though Frank Anthony''s School is a non-aided minority institution the Supreme Court in Frank Anthony Public School Employees'' Association Vs. Union of India (UOI) and Others, has held that Section 8(3) of Delhi School Education Act, providing for appeal against the dismissal or removal of an employee of such school to the independent tribunal to be a reasonable regulating measure which can be made applicable to such a minority institution. The Supreme Court in all the decisions has recognised that State can impose regulating measures to minority institutions but in respect of minority institutions not taking any aid from the State such regulatory measure is to be minimal. But even then the provision for appeal in Delhi Education Act has been held to be applicable to such an unaided school like Frank Anthony''s School.

In this case Shri Sikshayatan established and run by Marwari Balika'' Vidyalaya takes aid from the Government. The petitioner admits that the Government gives the D.A. to the teachers and the school authority has written to the Board to appoint a D.D.O. for disbursement of such D.A. The school has applied and obtained for special constitution of the Managing Committee under Rule 33 and has obtained it and has held election in terms of that special constitution. Even though it is a minority institution can ask the Government and the Government by Notification in the Official Gazette can provide such rules. But I agree with the submission of the learned Advocate for the petitioner that only because it has applied for special constitution under Rule 33 it has not waived its right under Article 30(1) of the Constitution. As regards the fundamental rights guaranteed under the Constitution there is no question of any waiver. But there is no doubt that it has accepted the regulatory measures made by the Board of Secondary Education to that institution as it has taken aid from the Government. But when the Board wanted to appoint an Administrator to that school it has successfully prevented it by filing a writ and obtaining appropriate order in that writ. I have already indicated that as minority institution Shri Shikshayatan has no obligation to obtain prior approval of the Board before dismissing or terminating the services of any employee.

But the main point for decision is whether the right of appeal of an employee to the Appeal Committee of the Board of Secondary Education as provided in Section 22 of the West Bengal Board of Secondary Education that infringes the fundamental right of the petitioner in administering the minority educational institution.

I have already indicated that even in the matter of an unaided school the similar appeal provision in Section 8(3) of Delhi School Education Act has been held by the Supreme Court to be reasonable and fair. The Supreme Court has found such appeal provision against the order of dismissal or removal of service of the employee or even such unaided minority institution to be reasonable because the appeal against the dismissal or removal of an employee is provided to an independent tribunal.

I am considering the appeal provision in Section 22 of the West Bengal Secondary Education vis-a-vis a minority educational institution receiving government aid. According to Supreme Court in respect of such aided institutions the regulations o imposed by the statute as permissible regulating which the State may impose for granting aid to the educational institutions.. The provision for appeal contained in Section 22 of the West Bengal Secondary Education Act, 1963 is also to an independent committee consisting of (a) three persons to be elected by the Board, (b) a person who is or has been member of Judicial service of the State Government, (c) Director of School Education and (d) a member of the Managing Committee of a recognised institution. The member of the'' Judicial Service is the Chairman. The matter is not left for sole discretion or veto power of an individual and the appeal is to be decided by the collective judgment of a responsible body of persons.

Section 22(3) stipulates that the appeal committee is to be guided and controlled by the statutory regulations and the right of appeal is limited to only those decisions which adversely affect the teacher or other employee of the institution concerned. Appeal Regulations, namely, the West Bengal Board of Secondary Education (Manner of hearing and Deciding appeals by Appeal Committee) Regulations 1964 guide the procedure of hearing and disposal of such appeals. Some of the relevant; provisions are as follows :

(a) The appeal is normally to be filed within one month of the date of order complained of [Regulation 4(2)1].

(b) The appeal shall not operate as stay of the order appealed against (Regulation 5).

(c) On receipt of appeal the same shall be sent to the Managing Committee concerned inviting its statement [Regulation 6(1)].

(d) Appeal Committee shall hear the appellant or his representative and the representative of the Managing Committee [Regulation

(e) Appeal Committee is bound to give reason for its decision in'' all cases [Regulation 9(2)''.

The above discussion would clearly demonstrate that the Appeal Committee is an impartial body. It has to follow the principles of natural justice and has to decide the matter impartially and to pass reasoned order. There is no question of the minority institution''s, decision being overruled by the Veto or whim of ah administrator. The Committee is headed by a member of judicial service who is under the administrative control of the High Court, Calcutta, and does not act at the dictate of any administrative boss.

Moreover, the decision of the appeal committee if arbitrary or unreasonable is amenable to the jurisdiction of the High Court under Article 226 or 227 of the Constitution.

On the contrary, if the managing committee of a minority institution whimsically or without any rhyme or reason arbitrarily terminates the services of a permanent employee and the employee concerned is left with no remedy whatsoever then it will be giving premium to the mal-administration of a minority educational institution. There is no doubt that the minority institution in the name of protection under Article 30(1) of the Constitution cannot be permitted to resort to mal-administration, otherwise the purpose of the protection to the minority institution as envisaged in Article 30(1) of the Constitution will be frustrated.

In this case, the Respondent No. 4 has in the affidavit-in-opposition in detail stated that he is a permanent accountant, that his termination of service without giving him any opportunity to explain his position is a conspiracy to get rid of him as he has taken a leading part in organising the union of the Non-teaching staff of the school and has complained about the financial irregularities committed by the Managing Committee and the Manager of the school. The school authority, however, claimed to have terminated his services on being satisfied about his serious misconduct involving a girl student of a school.

I am not entering into this disputed question in this writ petition. But, I am of the view that when the West Bengal Secondary Education Act has provided a remedy against the wrongful dismissal of an employee of an educational institution in Section 22 to an independent committee headed by a judicial officer then a minority institution shall be amenable to the jurisdiction of such appeal committee otherwise the employee, if really dismissed unlawfully and without giving any opportunity to defend his case, will be without any remedy. This is not at all congenial to the proper atmosphere of minority institutions being administered properly because the minority institution has the right of administration but not of mal-administration. My attention has been drawn to the decision of Umesh Chandra Banerjee, J., in Maheswari Balika Vidyalaya and Ors. v. State of West Bengal 1988(2) CLJ 104. Before the learned Judge the petitioner claiming to be running a minority educational institution in Calcutta has also challenged the jurisdiction of appeal committee to hear the appeal of the teachers suspended and dismissed filed u/s 22 of the West Bengal Secondary Education Act, 1963. The learned Judge has upheld the jurisdiction of the appeal committee of the Board of Secondary Education hear the appeal of such suspended or dismissed teachers of a minority educational institution.

The learned Judge relying on a passage of Supreme Court in Frank Anthony Public School Employees'' Association Vs. Union of India (UOI) and Others, has observed that exploitation of teaching staff of an educational institution resulting in misconduct of the teaching staff cannot be protected under Article 30(1) of the Constitution. In my view the above principle can be extended even to a non-teaching staff because the Supreme Court in Frank Anthony Public School Employees'' Association Vs. Union of India (UOI) and Others, as observed as follows :

"The Management of a minority institution cannot be permitted under the guise of fundamental right guaranteed by Article 30(1) of the Constitution to oppress or exploit its employees more than any other private employee".

On behalf of the petitioners however, an earlier Single bench decision reported in Reverend Father Joseph D'' Souza v. W.B.B.S.E. reported in 1983 (1) Cal. LJ 128 has been cited where the learned Judge has held that appeal regulations of the W. B. Secondary Board are not applicable to a minority educational institution, established by Roman Catholic Christian Community. The facts of the said case are distinguishable. In respect of unaided minority schools established by Roman Catholic Christian Community a separate set of rules namely code of Regulation for Anglo-Indian School have been framed. That regulation did not provide for appeal to appeal committee even in respect of aided minority institution. The institution which filed the above writ petition was even unaided school. Even though the said school was not included in the appeal Regulations, the learned Judge held that the appeal regulations would not be attracted as it would infringe its fundamental right under Article 30(1) of the Constitution. As it was an unaided Roman Catholic educational institution and as the institution gave reasonable opportunity of defence to the concerned teacher, in that context the learned Judge has held that the appeal regulations as contained in Section 22 of the W.B. Secondary Education Act, 1963 is not attracted. However, this decision was rendered before the decision of Supreme Court in Frank Anthony Public School Employees'' Association Vs. Union of India (UOI) and Others, in which even in respect of unaided minority schools, the Supreme Court has held that such schools are amenable to appeal jurisdiction of an independent tribunal in the matter of dismissal or removal of service of the employees. Therefore, this decision of the learned Single Judge which is also clearly distinguishable should not berelied upon in this case. In the result, I am of the view that the appeal committee has the necessary jurisdiction to hear the appeal of the Respondent No. 4.

The petitioners have also challenged the merits of the decision of the appeal committee. They have urged that the appeal committee set aside the order of termination of service of the respondent No. 4 mainly on the ground that no approval of the board was taken prior to the dismissal.

On perusal of the impugned order Annexure ''U'' to the writ petition, I am of the view that the appeal committee has found the order of termination of service to be infirm mainly because no prior approval of the Board was taken before terminating the services of the respondent No. 4. I have already indicated that as a minority institution the Managing Committee was not obliged to seek the prior approval of the Board before dismissing its employee because taking of such prior approval is the direct interference with the administration of the minority institutions.

I also find that the appeal committee did not give any further opportunity to the petitioners to appear when they reported that their school had been closed on the date fixed for hearing. The Appeal Committee adjourned the hearing of appeal in another case of the same school on the same ground but without adjoining this case gave its decision ex parte against the Managing Committee of Sri Sikshayatan. The Managing Committee appears to have dismissed the respondent No. 4 on a grave charge of improper conduct with a girl student. Therefore it is necessary that the Managing Committee of the school should be afforded opportunity to place before the Appeal Committee all the materials in support of the action taken by it. The appeal Committee has to scrutinise the same and to hear both the respondent No. 4 and the representative of the Managing Committee about the said charge. It has also to consider the case of the Respondent No. 4 as to whether he has been afforded reasonable opportunity to defend his case.

In the result, I allow the writ petition and set aside the order passed by the Appeal Committee and direct it to hear the appeal again on giving fresh opportunity of hearing to the Managing Committee of the school and the Respondent No. 4. Liberty is given to both the Managing Committee and the Respondent No. 4 to produce fresh materials in support of their respective cases. As the matter is very old the appeal shall be disposed of within two months from the date of communication of this order.

All parties including the Appeal Committee shall act on a signed copy of the operative portion of this judgment.

There is no order as to costs.