“If the intent is to achieve excellence in education, would it be enough if the concerned educational institutions were to employ teachers with minimum requisite qualifications in the name of exercise of Right under Article 30 of the Constitution, while better qualified teachers are available to impart education?”

Supreme Court: The bench of Arun Mishra and UU Lalit, JJ has upheld the constitutional validity of Sections 8, 10, 11 and 12 of the West Bengal Madrasah Service Commission Act, 2008 that relate to the process of appointment of teachers in an aided Madrasah. While doing so the Court noticed that the legislature has taken due care that the interest of a minority institution will always be taken care of by ensuring that

  1. in normal circumstances, the best qualified and suitable candidates will be nominated by the Commission; and
  2. in case there be any error on part of the Commission, the concerned Managing Committee could not only point out the error which would then be rectified by the Commission but the Managing Committee may also be within its rights in terms of Section 12 (i) to refuse the nomination on a reasonable ground.

It was argued before the Court that the provisions of the Commission Act transgressed upon the rights of a minority institution of choosing its own teachers as by virtue of the provisions of the Commission Act, the process of appointment of teachers in an aided Madrasah, which was recognised as a minority institution, was taken over and entrusted to the Commission appointed under Section 4 of the Commission Act; and that the Commission was empowered under the provisions of the Commission Act to make recommendations which would be binding on the Managing Committee of an aided Madrasah.

The Court, however, wasn’t convinced with the submission and asked,

“if the candidates who are selected and nominated under the regulatory regime to impart education which is purely secular in character, are better qualified, would the minority institution be within its rights to reject such nomination only in the name of exercise of a right of choice? The choice so exercised would not be in pursuit of excellence. Can such choice then be accepted?”

It noticed that the regime put in place by the State legislature ensures that the Commission comprising of experts in the field would screen the talent all across the State; will adopt a fair selection procedure and select the best available talent purely on merit basis; and even while nominating, the interest of the minority institution will also be given due weightage and taken care of. The statutory provisions thus seek to achieve ‘excellence’ in education and also seek to promote the interest of the minority institutions.

The Court, also noticed that the composition of the Commission with special emphasis on persons having profound knowledge in Islamic Culture and Theology, would ensure that the special needs and requirements of minority educational institutions will always be taken care of.

It was further explained that though the recommendations or nominations of teachers made by the Commission are otherwise binding on the Managing Committees of concerned Madrasahs, but, in terms of second proviso to Section 10 of the Commission Act, if there be any error, it is open to the Managing Committee of the concerned Madrasah to bring it to the notice of the Commission for removal of such error. The concept of ‘error’ as contemplated must also include cases where the concerned Madrasah could appoint a better qualified teacher than the one nominated by the Commission. If any such error is pointed out, the Commission will certainly have to rectify and remove the error. The further protection is afforded by Section 12 of the Commission Act, under which the concerned Madrasah could be within its rights to refuse to issue appointment letter to the candidate recommended by the Commission if any better qualified candidate is otherwise available with the managing committee of the concerned Madrasah. Such refusal may also come within the expression ‘any reasonable ground’ as contemplated in Section 12(i) of the Act.

“if the minority institution has a better candidate available than the one nominated under a regulatory regime, the institution would certainly be within its rights to reject the nomination made by the authorities but if the person nominated for imparting education is otherwise better qualified and suitable, any rejection of such nomination by the minority institution would never help such institution in achieving excellence and as such, any such rejection would not be within the true scope of the Right protected under Article 30(1) of the Constitution.”

[Sk. Md. Rafique v. Managing Committee, Contai Rahamania High Madrasah, 2020 SCC OnLine SC 4, decided on 06.01.2020]

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