Sahila Khatun vs The State of West Bengal

Samapti Chatterjee, J.—The points to be determined in the present case are (I) Whether the District Inspector of School (S.E) , Paschim Midnapore can reject the claim of the petitioner for approval on certain cryptic and ambiguous grounds ? (ii) Whether the West Bengal Schools (Control of Expenditure) Act 2005 is applicable to a minority educational institution in West Bengal on the face of the provisions guaranteed by Article 30 of the Constitution of India?

Fact of The Case

The case of the petitioner in brief is as follows : -

The Bhuta D.A.V High School (hereinafter referred to as the ''said school'') is a recognised aided minority educational institution regulated/guided by Special Rules granted by the State of West Bengal and run by Arya Samaj. Further in exercise of powers conferred in Rule 33 of the 1969 Rules the State Government framed ''Special Rules'' in the management of recognised aided institution established and run by Arya Samaj for Gurukul Vidyalaya Trust under the Arya Pratinidhi Sabha. Those rules were notified vide notification No. 404-Edn (S) dated 19th March, 1973 and that notification is applicable in the institution of the petitioner. For seeking approval of her appointment under the ''Special Rule'' the said school was empowered to join teaching and non-teaching staff since the appointments were made to sanction vacant posts and the salaries/allowances of which were to be paid from the public exchequer.

Since the petitioner having requisite qualification for being appointed as assistant teacher in language group (Bengali) in the said school therefore, as the said post had fallen vacant on and from 31st October, 2007 due to retirement of one Mr. Sripda Maity, therefore the school authority wrote letter on 6th March, 2008 and 21st April, 2008 to the state authority to the effect that the school has decided to make arrangement of filling up the normal vacancy. In the result on 29th April, 2008 the school authority published an advertisement in Anandabazar Patrika and in response to that advertisement the petitioner applied for the said post.

Accordingly on 23rd July. 2008 an interview was held by the school authority and the petitioner participated in the said interview. Thereafter a panel was prepared wherein the petitioner was placed first and one Santanu Singha Roy was second. The aforesaid selection was challenged by Sri Santanu Singha Roy before this Hon''ble Court in W.P No. 29015 (W) of 2008 which was dismissed by this Court vide order dated 3rd December, 2008. The petitioner also filed a writ petition being W.P No. 29291 (W) of 2008 interalia praying for direction upon the Managing Committee to submit the panel before the District Inspector of School (S.E) Paschim Midnapore for her approval. That writ petition was disposed of by this Hon''ble Court on 8th December, 2008 thereby directing the Managing Committee to prepare the panel in pursuance to the selection held on 23rd July, 2008 and to send the same to the appropriate authority within four weeks from the date of communication of the order.

Upon receipt of the said panel the District Inspector of School (S.E), Paschim Midnatpore was also directed to take a decision in respect of the said panel in accordance with law within a specific time. Since the District Inspector of School (S.E), Paschim Midnapore refused to approve the panel therefore challenging the said order of refusal dated 13th March, 2009 said Sri Santanu Singha Roy filed a further writ petition being W.P No. 4262 (W) of 2009 and the Managing Committee of the said school in its meeting dated 18th December, 2009 decided to take re-interview with the same set of candidates.

Accordingly, interview was held on 4th January, 2010. Thereafter the said Santanu Singha Roy filed a further writ petition A.S.T No. 1196 of 2009 subsequently renumbered as W.P 404 (W) of 2010 interaila challenging the decision for holding re-interview. The aforesaid petition was heard and the Hon''ble Court on 30th December, 2009 directed said Santanu Singha Roy to participate in the interview without prejudice to his rights and contentions. The present petitioner also appeared in the re-interview fixed on 4th January, 2010 before the Selection Committee and she was selected for appointment to the post of assistant teacher in language group (Bengali). Subsequently, appointment letter was issued by the said school on 9th January, 2010 in her favour and accordingly on 13th January, 2010 the petitioner joined the said post.

Thereafter on 1st February, 2010 the Secretary of the Managing Committee submitted the papers pertaining to the said selection before the District Inspector of School (S.E), Paschim Midnapore for approval of the appointment of the petitioner as Assistant teacher in language group (Bengali) but till date the District Inspector of School (S.E) Paschim Midnapore failed to accord approval to the appointment of the petitioner in the said post of assistant teacher in language group (Bengali) as a result whereof the Secretary of the Managing Committee time to time made representation before the said District Inspector of School (S.E), Paschim Midnapore for according approval to the said panel but all in vain.

Ultimately the petitioner filed a writ petition being W.P No. 8175 (W) of 2010 and in the said writ petition the Hon''ble Court on 19th March, 2012 was pleased to dispose of the matter by directing the District Inspector of School (S.E) Paschim Midnapore to examine the claim of appointment of the writ petitioner by taking into consideration of the decision of this Hon''ble Court in Kushadhwaj Mondal & Others v. State of West Bengal & Others reported in 2008 (1) CLJ (Cal) Page 167. In terms of the said order the concerned District Inspector of School passed a decision on 6th August, 2012 thereby rejecting the petitioner''s prayer for granting approval.

Hence, the present writ petition.

Submissions of The Learned Advocates

Mr. Subir Sanyal, learned Advocate appearing for the petitioner vehemently urged that the authority failed to appreciate that the Government has framed certain rules which has to be followed in totality. Mr. Sanyal further contended that authority also failed to consider the West Bengal Act XXVII of 1976 (West Bengal Schedule Caste and Schedule Tribes Reservation of Vacancies in Services and Post) in respect of the said school since there is no mentioning of exemption in the said ''Special Rule'' of 1973.

Mr. Sanyal further vehemently argued that the authority again failed to appreciate that Paragraph-3 of the Control of Expenditure Act 2005 as well as the 1973 Act should be obeyed as per Rule 7 (a) of special rules of 1973.

Mr. Sanyal also referred to the decision in Kushadhwaj Mondal & Others (supra) which relates to the self same school where the petitioner has been selected as an assistant teacher on 13th November, 2007 and four teachers including Kushadhwaj Mondal were accorded approval by the school in compliance of this Hon''ble Court''s order. After that the state authority also granted approval in respect of Sri Arun Kumar Singha, assistant teacher vide letter dated 25th January, 2011 following Kushadhwaj Mondal & Others decision but the petitioner''s case for approval has been negated by the state authority.

Mr. Sanyal also argued that the act of the authority is clearly hit by Articles 14 and 16 of the Constitution of India. Mr. Sanyal also strongly submitted that Expenditure Act of 2005 was not appreciated by the said school where in Para-3 the purview of the Act laid by Government has been well defined and clearly mentioned. In support of his contention Mr. Sanyal also relied on an unreported decision delivered on 16th July, 2014 in W.P. No. 21266 (W) of 2012 (Soumitra Singha Roy v. The State of West Bengal & Others) where the rejection of the approval of the writ petitioner was set aside by the Hon''ble Court. Some extract of the said order passed in Soumitra Singha Roy case (supra) is quoted below :-

"The Supreme Court while considering the ultimate impact of not complying with the said Regulation had observed that it would not be permissible to infringe the constitutional protection in exercise of State policy or by a supporting legislation to frame such Rules which would impinge upon the character or in any way substantially dilute the right of a minority to administer and manage affairs of the said school.

The Supreme Court held that the State has right to frame regulations, which will achieve the object of the Act. It observes : "Even if it is assumed that there is no complete eclipse of the DSEP Act in the rules in case of minority institutions, still Rules 64(1) (b), if enforced, would adversely affect and dilute the right and protection available to the minority school under the consideration."

Mr. Sanyal further contended that since the District Inspector of School similarly placed/circumstanced person had already accorded approval considering the judgment of Kushadhwaj Mondal & Others case therefore, the case of the petitioner cannot be denied by the self same District Inspector of School (S.E) Paschim Midnapore. In support of his contention Mr. Sanyal relied on a Hon''ble Supreme Court decision reported in 2015 (1) SCC Page-347 Paragraph-22 (State of Uttar Pradesh v. Arvind Kumar Srivastava And Others)

Per contra, Mr. Sadananda Ganguly, learned Senior Advocate of the State of West Bengal strongly submitted that the said institution established and run by the Arya Samaj cannot be regarded as minority institution under Article 30 of the Constitution of India.

Mr. Ganguly further submitted that there is no claim that Arya Samaj has separate spoken language which is necessary for the purpose of Article 30 (1) of the Constitution. Furthermore, particulars the basis of which Arya Samaj claim to constitute a linguistic minority group are also lacking.

Mr. Ganguly further vehemently urged that after amendment of Rule 32 and deletion of Rule 33 of the Management Rules State Government has not accepted Arya Samaj as constituting a minority group. Therefore, the institution established and run by them cannot be treated as minority institution.

Mr. Ganguly also drew my attention to a memo No. 1014/Edm(S)/50.14.76 whereby the school education department rescinded special regulation granted to school by the education department in the year 1973. The extract of the notification dated 10th November, 1976 is quoted below :-

"Notification:

In exercise of the power conferred by article 26 and 30 of the Constitution of India read with rules 33 of the Management of Recognised Non-Government Institution (Aided and Unaided) Rules, 1969 the Governor is pleased here by to rescind the "Special Rules" for the Management of Secondary Schools established and run by Arya Samaj and of Gurukul Vidyalaya Trust, under the aegis of Arya Pratinidhi Sabha of the State Representative Body of Arya Samaj in the State published with this department notification No. 404-Edn (S) dated the 19th March, 1973, in Part-I of the Calcutta Gazette, Extraordinary of the 19th March, 1973, Page 723-730."

Mr. Ganguly further contended that the petitioner has not come before this Hon''ble Court with clean hand. He further contended that it is very much within the knowledge of the school authority that the notification being No. 404-Edn dated 19th march, 1973 whereby the Aray Samaj had been enjoying ''Special Rules'' has been rescinded by the notification dated 10th November, 1976. But suppressing this fact the petitioner filed this present writ petition. Therefore this petition should be dismissed on the sole ground of suppression of material facts. In support of his contention Mr. Ganguly relied on a learned Single Bench decision reported in 2011 LAB. I.C. 1654 (Calcutta High Court) Paragraphs 44, 46 which are quoted below :-

"Para-44-No document has been placed before me to show that the State Government, by notification, has specified that the said Institution is established and administered by a minority viz. The Arya Samaj and, therefore, the Management Rules would not apply to the said Institution. It has also not been brought to my notice that the State Government has made rules in terms of the provisions of the 1996 Act detailing composition, powers, functions etc. of the committee of such institutions as is referred to in clause (c), as amended. In fine, the State Government has not determined the status of the said Institution being established and run by a minority, as claimed by the petitioners in W.P 1163 of 2008 and the respondents 6 to 9 in W.P 30691 (W) of 2008. The said Institution is, therefore, bound to comply with provisions contained in Rule 28 (1) of the Management Rules for appointing staff on sanctioned posts.

Para-46-The question, therefore, would be whether the Arya Samaj is constitute a linguistic minority and whether the Court can declare such status ? In W.P 1163 of 2008 as well in the two sets of counter affidavits filed in connection with W.P. 30691 (W) of 2008., there is not a single averment to the effect that such members constitute a linguistic minority, not to speak of particulars to establish such claim. There is no claim that the Arya Samajis have a separate spoken language, which is necessary for the purposes of Article 30 (1) of the Constitution, as held in D.A.V. College (supra) to be entitled to protection,. All that has been stated is that the Arya Samajis are minorities and the State Government has accepted such fact by granting the Special Rules. The Special Rules did not exist when these two petitions were presented before this Court and even now and, therefore, no determination can be made regarding the status of the said Institution as established and run by a minority i.e. the Arya Samajis, on the basis thereof. Particulars on the basis of which the Arya Samajis claim to constitute a linguistic minority group are also lacking. The State Government has not, after amendment of Rule 32 and deletion of Rule 33 of the Management Rules, accepted the Arya Samajis as constituting a minority group and, therefore, the institutions established and run by them cannot be regarded as minority institutions as on date and this entitled to protection of Article 30. The SSC Act, therefore, does apply in respect of the said Institution and the Central Commission was not unjustified in recommending Sri Yadav for appointment as Head Master therein. I have considered the decision in Siliguri Hindi High School (supra). Considering the amendments incorporated in the Management Rules referred to above and also the observations in Kiran Subbha (supra), I am of the view that the said decision cannot be of any aid to the petitioners. In the absence of any determination in respect of minority status by the competent authority in terms of the relevant laws, it would be improper for the Court of Writ to give any decision as adjudicator of the first instance."

Therefore, in conclusion Mr. Ganguly strongly submitted that the writ petition should be dismissed with exemplary costs.

Decision With Reasons

Considering the submissions advanced by the learned Advocates and after perusing the records I find that by notification dated 10th November, 1976 the Governor has already rescinded ''Special Rules'' for the management of secondary schools established and run by Arya Samaj and Grurkul Vidyalaya Trust under aegis of Arya Pratinidhi Sabha of the State (representative body of Arya Samaj in the State) published under notification dated 19th March, 1973.

In the decision of the Hon''ble Supreme Court reported in AIR 1971 (SC) Page-1737 (D.A.V College v. State of Punjab and Others) the Hon''ble Supreme Court held that Arya Samaj were Hindu and therefore entitled to minority status in the State of Punjab but the present case in hand is totally different. In the State of West Bengal Hindus'' being the majority therefore, the Arya Samaj cannot be constitute a religious minority.

It is claimed in the present writ petition that the said institution is governed by the ''Special Rules'' for management of secondary schools established and run by Arya Samaj and Gurukul Vidyalaya Trust under aegis of Arya Pratinidi Sabha of the State (representative body of Arya Samaj in the State). The ''Special Rules'' were framed in exercise of power conferred by Rule 33 of the management of recognised non-Government institution (aided and un-aided) Rules, 1969.

It is also claimed in the writ petition vide Paragraph-7 of the ''Special Rules'' power had been conferred on the school committee of any school or the institution run by Arya Pratinidhi Sabha of the State through its local units of Arya Samaj to appoint employees both permanent and temporary , salaried or honorary.

It is also claimed that in exercise of powers contained in Section 45 of the West Bengal Board of Secondary Education Act, 1963 the State Government by way of subordinate legislation framed the management of Recognised/Non-Government Institutions (aided and unaided) Rules, 1969 while Rule 28 of the aforesaid Rules provided, that subject to the provisions in any grant in aid scheme or any revision scheme or any order or direction in connection therewith and in force for the time being, the committee of a recognised aided institution would possess the power, inter alia, to appoint the members of teaching and non-teaching staffs in the institution. The provisions in Rule 33 provided that nothing contained in the aforesaid rules would affect the power of the State Government.

It is also claimed that in exercise of powers contained in that Rule 33 of the 1969 Rules, the State Government framed the ''Special Rules'' for the management of recognised aided institutions established and run by Arya Samaj and for Gurukul Vidyalaya Trust under the aegis of Arya Pratinidhi Sabha of the State (representative body of Arya Samaj in the State) and those rules were notified vide notification No. 404-Edn (S) dated 19th March, 1973 and were applicable to the institution in which the petitioner is seeking approval of her appointment.

In my considered view that decision rendered Kushadhwaj Mondal and Others (supra) is not applicable in the case of the petitioner as the order was passed on the basis of the notification dated 19th March, 1973 being No. 404-Edn (S) whereby the State Government in exercise of powers conferred by the Rule 33 of the 1969 Rules framed ''Special Rules'' for the management of secondary schools established and run by Arya Samaj and or Gurukul Vidyalaya Trust under the aegis of Arya Pratinidhi Sabha of the State (representative body of Arya Samaj in the State) Unfortunately it was not brought to the notice of the Hon''ble Court that the notification No. 404-Edn (S) dated 19th March, 1973 has been rescinded by the subsequent notification No. 1014/Edn (S)/50- 14.76 dated 10th November, 1976.

Therefore, the petitioner''s case cannot be considered in the light of the decision in Kushadhwaj Mondal & Others (supra) as the notification dated 19th March, 1973 has already been rescinded by the State of West Bengal by the subsequent notification dated 10th November, 1976. Therefore, the argument advanced by Mr. Sanyal that the present institution is governed by ''Special Rules'' as framed by the Government under Rule 33 of 1969 Rules for Arya Samaj and or Gurukul Vidyalaya Trust on the basis of the notification dated 19th March, 1973 fails and is not accepted by this Court. In my considered view the case of the petitioner should be governed by the General Rules.

The decision in State of Uttar Pradesh And Others v. Arvind Kumar Srivastava And Others (supra) is considered but considering the facts and circumstances of the case in hand I think this decision has no manner of application.

Further, the decision reported in 2008 (2) CHN Page 530 (Kiran Subbha And Others v. State of West Bengal And Others) held that minority status cannot be inferred and or presumed automatically and that it is either for the Central Government or State Government to declare a particular group as minority either based on religion or language. Therefore, in my opinion since the notification dated 19th March, 1973 has been rescinded ''Special Rules'' by the notification dated 10th November, 1976, the present institution cannot claim any special privilege under Article 30 (1) of the Constitution of India.

That being the scenario in my considered view there is no ambiguity, irregularity or infirmity in the letter dated 6th August, 2012 issued by District Inspector of School (S.E) Paschim Midnapore which deserve any interference by this Hon''ble Court.

Accordingly the writ petition stands dismissed, however no order as to costs.

Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties after fulfilling all the formalities.