CHANDANA DAS (MALAKAR) v. THE STATE OF WEST BENGAL & Ors.

Judgment

12 S.C.R. 631 631 CHANDANA DAS (MALAKAR) v. THE STATE OF WEST BENGAL & ORS. (Civil Appeal No. 2858 of 2007 etc.) SEPTEMBER 25, 2019 [R. F. NARIMAN, R. SUBHASH REDDY AND SURYA KANT, JJ.] Service Law: Appointment – Of teachers – In minority institution – Not approved by District Inspector of Schools on the ground that the same was without recommendation by School Service Commission mandated u/r. 28 of 1969 Rules – Writ petition – Single Judge of High Court held that the institution being a linguistic minority institution was entitled u/Art. 30 of the Constitution to appoint its teachers – Division Bench of High Court held that since the institution was recognized aided institution, management was bound to follow mandate of r. 28 of the Rules – Appeal to Supreme Court – Difference of opinion between Judges of Supreme Court (one agreeing with opinion of Single Judge of High Court while the other agreeing with Division Bench of High Court) – Matter referred to larger Bench – Held: In the facts of the case, it is made out that the institution is a linguistic minority institution – Therefore, r. 28 would not apply as the same would result in serious infraction of the right of the institution u/Art. 30 of the Constitution to administer the institution with teachers of its own choice – Management of Recognized Non-Government Institutions (Aided and Unaided) Rules, 1969 – r. 28 – West Bengal Board of Secondary Education Act, 1963 – Constitution of India – Art. 30. Constitution of India: Art. 30 – Linguistic minority status – Determination of – Held: Where challenge is to the State law, linguistic minority status has to be determined State-wise. Art. 30 – Linguistic minority status – Determination of – Criteria – Held: Medium of instruction (language) followed in the 631 A B C D E F G H 632 SUPREME COURT REPORTS [2019] 12 S.C.R. A B C D E F G H institution would be irrelevant to discover as to whether the institution in question was founded by a linguistic minority for the purpose of imparting education to members of its community. Art. 350B – Special Officer’s Report – In respect of linguistic minority institution – Absence of – Affect on minority status of the institution – Held: Absence of report of the Special Officer would not lead to the conclusion that no linguistic minority can claim protection as such u/Art. 30 (1) of the Constitution. Allowing the appeals, the Court HELD: 1. A perusal of the Management of Recognized Non-Government Institutions (Aided and Unaided) Rules, 1969 as they stood prior to the 2008 amendment, would show that in case the provisions of Article 30 of the Constitution apply, further or other rules for the composition, powers, functions of the managing committee or committees of such institutions or class of institutions would be framed. It is admitted, that no such Rules have been framed under Rule 33. [Para 12] [646-C-D]

#2. By a letter dated 19th April, 1976, Respondent No.4 institution wrote to the Secretary, West Bengal Board of Secondary Education asking that it may be declared as a minority community institution and the special constitution for the same may be approved on that basis. By a letter dated 7th May, 1982 from the Secretary, West Bengal Board of Secondary Education to the Respondent No.4, a special constitution of the managing committee of the school was set up. It is obvious on a reading of this document that whereas Rule 6 of the Rules required only one representative of the Sikh community to be on the Management Board, there are three representatives appointed. Equally, whereas Rule 6 requires that there be six guardian representatives to be elected, only four are provided. Thus, it cannot be said that by acceptance of this letter, Respondent No.4 has, in any manner, unequivocally waived its right to be treated as a minority institution. On the contrary, the application dated 19th April, 1976, was to recognise it as a minority institution, and merely because Rule 8(3) of the Rules was purportedly applied, it does not mean that the minority character of the institution was not kept in mind while framing the special constitution for CHANDANA DAS (MALAKAR) v. STATE OF WEST BENGAL & ORS. 633 future management of the school. On facts, therefore, it is difficult to appreciate how Respondent No.4 can be said to have waived its right to be treated as a linguistic minority institution set up by a linguistic minority, namely, the Sikhs in the State of West Bengal. [Paras 13 and 15] [646-E; 647-D-H; 648-A-C]

#3. If Respondent No.4 is a minority institution, Rule 28 of Management of Recognized Non-Government Institutions (Aided and Unaided) Rules, 1969, cannot possibly apply as there would be a serious infraction of the right of Respondent No.4 to administer the institution with teachers of its choice. [Para 23] [655-B-C] Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 : [1973] 0 Suppl. SCR 1 ; Ahmedabad St. Xavier’s College Society v. State of Gujarat [1975] 1 SCR 173 ; T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481 – followed

#4. The competent authorities set up by the West Bengal Board of Secondary Education Act, 1963 do not give any power to recognise a minority institution. Respondent No.4 was started as a primary school by the Sikh community living in Kolkata to impart education to their children who came from Punjab, so that they may learn their mother tongue and religion, ethics etc. [Para 24] [655-D-E] N. Ammad v. Emjay High School (1998) 6 SCC 674 : [1998] 1 Suppl. SCR 453 ; Corporate Educational Agency v. James Mathew (2017) 15 SCC 595 : [ 2017] 6 SCR 498 – relied on.

#5. It cannot be said that Respondent No.4 is, in any manner, estopped from claiming its minority status on the facts of the present case. Quite apart from this, it is settled law that the fundamental right under Article 30 cannot be waived. [Para 26] [657-G] Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545 : [1985] 2 Suppl. SCR 51 – followed. K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 : [2017] 10 SCR 569 – relied on. A B C D E F G H 634 SUPREME COURT REPORTS [2019] 12 S.C.R. A B C D E F G H

#6. Article 350B of the Constitution only sets up a Special Officer for linguistic minorities, to be appointed by the President, whose duty it is to investigate matters relating to safeguards provided for linguistic minorities and send reports to the President of India, which reports the President shall cause to be laid before each House of Parliament, and send to the Governments of the States concerned. Even a cursory reading of this Article cannot possibly lead to the conclusion that absent a report by the Special Officer, no linguistic minority can claim protection as such under Article 30(1) of the Constitution. [Para 29] [659-C]

#7. Where the challenge is to a State law, linguistic minority status would have to be determined State-wise. There can be no doubt that qua the State of West Bengal, Sikhs are a linguistic minority vis-à-vis their language, namely, Punjabi, as against the majority language of the State, which is Bengali. The argument on behalf of the State that the school is, in fact, teaching in the Hindi medium is neither here nor there. What is important is that the fundamental right under Article 30 refers to the “establishment” of the school as a linguistic minority institution which is very clear from the paragraphs 5(a) and 5(b) of letter dated 19th April, 1976. Therefore, the medium of instruction, whether it be Hindi, English, Bengali or some other language would be wholly irrelevant to discover as to whether the said school was founded by a linguistic minority for the purpose of imparting education to members of its community. [Paras 30 and 31] [659-D-H] D.A.V. College v. State of Punjab [1971] Supp. SCR 688 ; T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481 – followed. Shiromani Gurudwara Prabandhak Committee v. Shail Mittal SLP (C) No.2755/2008 – distinguished.