Case BriefsSupreme Court

“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]

Case BriefsSupreme Court

Supreme Court: Dealing with an important question as to whether the process of appointment of a principal in minority institution is open to judicial review, the bench of A.K. Goel and U.U. Lalit, JJ, held that while under the constitutional scheme, a “minority institution” is free to select and appoint a principal, without being bound by the principle of seniority alone, whether the appointment has been made fairly and reasonably and whether there is violation of right of an individual eligible candidate by the minority institution by not adopting fair procedure, is liable to be tested in exercise of power of judicial review under Article 226 of the Constitution.

In the present case, where a person junior to the appellant, who was appointed as Incharge-Principal, in the absence of regular principal, was appointed to the post of principal of a minority institution, the Court said that the minority institution may not be compelled to go by seniority alone but it must follow a criterion which is rational.

Stating that the grievance of a citizen that he was treated unfairly cannot be ignored on the ground that a minority institution has autonomy or right of choice, the Court said that the exercise of right of choice has to be fair, non-discriminatory and rational. The Autonomy of a minority institution does not dispense with the requirement to act fairly and in a transparent manner and the High Court in exercise of its power of judicial review is entitled to examine fairness of selection process. [Ivy C. da. Conceicao v. State of Goa, 2012 SCC OnLine Bom 1040 , decided on 31.01.2017]

Case Briefs

Bombay High Court: While deciding a case where minority institution was directed to absorb surplus teachers into the institution, the Division Bench of Vasanti A Naik and Swapna Joshi, JJ. held that, the minority institutions cannot be compelled to absorb surplus teachers from other schools until and unless the minority institutions concur with the same.

In this case the petitioner, a minority institution was ordered by the State Government to absorb surplus teacher into its school. The order for admission was delivered before the attainment of minority status and therefore the State Government sought to enforce its order over minority institution concurs with the absorption. However, it was argued on behalf of the respondents  that since the petitioner’s institutions were issued certificate as minority institutions on a date later than when the orders were passed hence the petitioner would be required to absorb the teachers in the school.

The Court, relying on  Canossa Society, Mumbai v. Commissioner, Social Welfare, Pune, 2014 SCC OnLine Bom 536,  held that minority institutions cannot be compelled to absorb surplus teachers unless the minority institution concurs for absorption and since the petitioner’s institution has been conferred with the minority status therefore, the submission on behalf of the respondent that the impugned orders were passed a few days before the minority certificate was granted in favor of the petitioners, the petitioners would be liable to absorb the surplus teachers in the school stands rejected and impugned order is liable to quashed and set aside. [Shri Balmukund Rathi Shikshan Sanstha v. State of Maharashtra, 2016 SCC OnLine Bom 10006 , decided on 05.12.2016]