Managing Committee, Vidya Vikash High School (H.S.) & Ors. vs The State of West Bengal & Ors.

Rai Chattopadhyay, J. :-

A letter of the District Inspector of Schools (Secondary Education), Barrackpur, North 24 Parganas /the 3^rd respondent [hereinafter mentioned as “the DI”], dated August 11, 2023 and the letter of the Commissioner of School Education, West Bengal/ the 2^nd respondent, dated August 2, 2023, which preceded the letter of the DI as stated above, have been assailed in the instant writ petition.

The impugned letter of the DI is with regard to the subject matter of approval of appointment of 4 newly recruited assistant teachers and 2 Group-D staff [the petitioners No.4 to 9 herein] of the addressee school [the petitioners No.1 to 3 herein].

The DI writes in the impugned letter dated August 11, 2023, inter alia that, approval of appointment cannot be granted in favour of the petitioners, in terms of letter issued by the 2^nd respondent dated August 2, 2023 as the school authority [writ petitioners Nos.1 to 3] has failed to submit the Minority Educational Institution Status Certificate, from the competent authority, as prescribed in Notification No. 378-MD dated April 5, 2012 [herein after referred to as “No. 378”]. Advice has been given to take steps to obtain such a certificate, in order to enjoy any privileges as a minority institution.

The 2^nd respondent writes in his letter dated August 2, 2023, regarding subject matter of status of the petitioner No.1/school. It is written inter alia that, the Supreme Court, in order dated August 4, 2022 [in SLP (C ) No. 8861 of 2021] has granted liberty to the petitioner school to take appropriate proceedings in the issue of minority status; the DI has been directed to verify if the school has obtained a Status Certificate from the competent authority as prescribed in notification No. 378; that, if no such Certificate has been obtained by the institution, it ought not to enjoy any benefit and privilege of a minority school, though it may take steps to obtain such a Certificate, in accordance with the law.

Challenging those orders of the 2^nd and 3^rd respondents respectively, the school as well as the newly appointed teachers and nonteaching staff thereof, have filed the instant writ petition together. In the writ petitioner, the petitioners have prayed for the reliefs that the impugned letters dated 4^th and 11^th August, 2023, respectively by the 2^nd and 3^rd respondents may be set aside; appointments of writ petitioners No.4 to 9 may be directed to be approved with effect from December 1, 2022, with all consequential benefits and against sanctioned vacant posts in the said school; that the petitioner school may be permitted to proceed with recruitment process for the remaining 17 sanctioned vacant posts which has already been initiated by virtue of publication of advertisement in newspapers on November 2, 2022.

This case has a long standing chequered back ground. The Court is principally confronted with a question here with regard to whether the petitioner school can be treated to be a linguistic minority institution to have the protection under Article 30 of the Constitution of India and privilege to be governed under the Special Rules, promulgated for the minority institutions in the country. May the Supreme Court‟s order dated August 4, 2022 in SLP (C ) No. 8861 of 2021, may be looked into at this stage. The petitioner school filed for Special Leave to Appeal. Relevant portion of the order is quoted bellow:

Therefore, firstly, the Supreme Court has decided about whether the petitioner/school can claim minority status or not, in negative, by setting aside any observation relating to the said question, in the order of High Court, impugned before it. The Supreme Court has also directed the school to take appropriate proceeding, in this regard. Undoubtedly this order of Supreme Court is final and binding on the school.

Next is that the appropriate proceeding as directed by the Supreme Court in the said order for the school is that as prescribed in notification No. 378. In two separate „Parts‟ the said notification has made provisions for a new minority institution and an existing educational institution, that is, under „Part-I‟ and „Part-II‟ respectively.

„Part-II‟ consists the provisions as follows:

Therefore, notification No. 378 consists guidelines for grant of no objection certificate and Minority Educational Institution Status Certificate to a minority educational institution. The said notification derives source from the statutes namely, section 10 of the National Commission for Minority Educational Institution Act, 2004 and section 18(1) of the Right of Children to Free and Compulsory Education Act, 2009.

According to section 10 of the Act of 2004, any person who desires to establish a Minority Educational Institution may apply to the Competent Authority, for grant of no objection certificate for the said purpose. Section 18(1) of the Act of 2009 provides that no school, other than a school established, owned or controlled by the appropriate government or the local authority, shall, after commencement of the said Act, be established or function without obtaining a certificate of recognition from the concerned authority by making an application in prescribed form and manner.

Therefore, secondly, by virtue of the statutory provision as above, after coming into force the Act of 2009, status of an existing minority school is barred to be so, which has not applied for and not obtained a certificate of recognition from the concerned authority, as per provision under the said Act. Let it be mentioned that the particular provision as above, of the Act of 2009, has not been challenged by the petitioners in the instant writ petition. Admittedly in this case no such application has been filed before or status certificate has been obtained by the petitioner institution, from the competent authority as a minority institution already existing and functioning, at the time of coming into force of the Act of 2009.

The writ petitioners‟ submissions are twofold in this case. Firstly that, for all the practical purposes for this age-old institution, the State has recognised its status as a linguistic minority institution. In this regard, Mr. Kamalesh Bhattacharyya, learned senior counsel for the petitioners has referred to some documents annexed with the writ petition. He says that in the letter dated December 31, 1979, the then Director of School Education West Bengal has directed the District Inspector of Schools, for inspection of the school and to furnish a report for recognition of the said school, acknowledging the same as a Hindi Medium School set up by the linguistic minorities as a Class-X Hindi Medium High School, with effect from January 1, 1979. Another letter dated February 12, 1980, has been referred to in which the same office writes to the DI again about the roll strength of the school in connection with its recognition as a school set up by the linguistic minorities as a Hindi Medium High School. The petitioners state that in a subsequent letter dated March 31, 1980, minority status of the school has been similarly acknowledged by the respondent.

Observation made in the Inspection Report dated March 24, 1980 is also relied on, which is as follows:

With reference to letter dated February 1, 1983, by the West Bengal Board of Secondary Education, it has been submitted that the authority has recognised the school as a Hindi Medium school, in which the medium of instruction and 1^st Language has to be Hindi.

Mr. Bhattacharyya, learned senior counsel has further placed strong reliance to a notification dated September 23, 2011, issued by the Minority Affairs and Madrasah Education Department to submit that in the same, such residents of the State whose mother tongue is Hindi, have been recognised and declared as Linguistic Minorities in West Bengal. Therefore, according to the writ petitioners, the school established and run by the recognised Linguistic Minority community in the State, ought to have naturally been treated as a Linguistic Minority institution, thereby recognising all its special rights and privileges under the Constitution and the Special laws.

Secondly, Mr. Bhattacharyya has submitted that on three occasions, vide the orders dated December 28, 1995, February 7, 1997 and April 13, 2000, a total of 34 posts of teachers and 3 non-teaching staff have been sanctioned by the authority for the institution. Additionally, 23 posts of teachers and 1 post of non-teaching staff has been sanctioned vide the order dated December 18, 2015. Accordingly, the said institution, by publishing an open advertisement and initiating a due and thorough recruitment proceeding, has recruited teachers and non-teaching staff for the institution, prepared panel and appointed the successful persons. That the said panel has duly been sent to the DI, for his approval, which, according to him, the DI is obliged to approve in accordance with the Rules. In this regard Mr. Bhattacharyya, learned senior counsel has relied on notification No. 79-ES/S/10R-14/2013 dated February 3, 2016, that is, Recruitment Procedure for the Non-Government Aided (excluding DA getting) Recognized Institutions Including Junior High Schools and Higher Secondary Schools established and run by the Minority Community as per Article 30 of the Constitution of India, [herein after referred to as “No.79”]. He submits that the entire recruitment process has been done by the school thoroughly and strictly in compliance with the provisions under the notification No.79. That, it is as per the provision of the said notification, that the DI is duty-bound to approve service of the appointees, who are the writ petitioners in the instant case.

Question is, whether after promulgation of the Right of Children to Free and Compulsory Education Act, 2009 and the notification No. 378, application of those would be optional for any reason, for an institution, which claims itself to be an existing and already functioning minority institution. The answer is given by the Supreme Court in its order dated August 4, 2022, in negative and has redirected the school to take appropriate steps to obtain Minority Educational Institution Status Certificate, from the competent authority.

The contention that the petitioner institution, being an existing and already functioning institution, was not required to make any application under the Act of 2009 or under Notification No. 378, cannot be accepted. Section 18(1) of the Act of 2009 is couched in mandatory terms and, significantly, does not confine its operation to schools which are proposed to be established after the commencement of the statute. The statutory expression is that no school, other than a school established, owned or controlled by the appropriate Government or local authority, shall, after commencement of the Act, be established or function without obtaining the requisite certificate of recognition upon an application made in the prescribed form and manner. Thus, the fact that an institution was already in existence and functioning before the commencement of the Act may have relevance to the procedure to be followed under Part-II of Notification No. 378, which specifically deals with an existing educational institution, but it does not create an exemption from the statutory requirement of making the prescribed application and obtaining the requisite certificate. Indeed, the very incorporation of a separate procedure for an “existing educational institution” in Part-II of Notification No. 378 demonstrates that the State contemplated such existing institutions as being within the regulatory framework, and not outside it.

Equally, the plea of the petitioner that its minority character was anterior to the Act of 2009 and had allegedly been acknowledged by the authorities on several occasions cannot, by itself, dispense with the statutory requirement introduced thereafter. A claim to the protection of Article 30 of the Constitution and the consequential entitlement to the special privileges available to a minority educational institution cannot be equated with a statutory determination or certification of minority educational institution status under the mechanism subsequently prescribed by law. The Supreme Court, while disposing of the petitioner's challenge on August 4, 2022, expressly left the question open and granted liberty to the petitioner-school to take appropriate proceedings in respect of its minority status; pursuant thereto, the school was required to pursue the procedure contemplated by Notification No. 378. In such circumstances, the petitioner cannot contend that the procedure prescribed by the Act of 2009 and Notification No. 378 are not applicable in its case merely because the institution claimed to have been functioning as a minority institution from an earlier point of time. Until the statutory process was undertaken and the requisite status was established in the manner prescribed, the petitioner could not claim, as of right, the privileges and exemptions attached to a minority educational institution. The admitted position that no such application had been made and no status certificate had been obtained assumes decisive significance in this regard.

Let it be stated here that the appointees that is, the writ petitioners No.4 to 9 should not be treated as on the same footing as the school management, because the defect appears to lie in the school‟s failure to comply with the statutory regime concerning minority status, whereas the appointees themselves have undergone a selection process in good faith and may have had no means of curing that institutional defect. The conclusion with regard to the obligation of the petitioner-school to comply with the statutory regime cannot, result in visiting the individual appointees with the entire consequence of the omission attributable to the institution or its appointing authority. The petitioners No. 4 to 9 are not shown to have been responsible either for the failure of the school to obtain the requisite Minority Educational Institution Status Certificate or for its decision to proceed with the recruitment treating itself as a minority institution. On the contrary, the materials placed before the Court indicate that the appointments were made pursuant to a recruitment process undertaken by the school against sanctioned posts and that the appointees were selected and appointed upon completion of such process. If, therefore, the recruitment process is ultimately found incapable of receiving statutory approval solely because the school failed to comply with the statutory requirements governing its claim to minority status, the appointees, who had no role in such non-compliance, ought not ordinarily to be made to suffer a consequence which they neither occasioned nor could reasonably have prevented. The distinction between the legality of the institutional decision to invoke a particular recruitment regime and the bona fide conduct of an individual candidate participating in that process is, in this context, material.

The Supreme Court's decision in Uma Devi (3) case [Secretary, State of Karnataka and Others versus Uma Devi (3) and others reported at (2006) 4 SCC 1] and also the subsequent cases, distinguish an illegal appointment from an irregular appointment. Where the appointment is against a sanctioned post and the appointee possesses the requisite qualifications, a procedural defect does not necessarily place the appointee in the same category as a person whose appointment was fundamentally prohibited by law for the cumulative reasons of incompetence of the institution to appoint, non-availability of sanctioned post and/or qualification deficiency of the particular appointee. In other words, the school's entitlement to invoke the minority recruitment mechanism may fail, without necessarily imputing any illegality, fraud or culpability to the individual appointees. The school cannot claim minority privileges without satisfying the statutory mechanism. The appointees cannot automatically obtain approval under a regime which the school itself was not entitled to invoke. But the appointees should not be treated as wrongdoers or made to bear the entire consequence of the school's omission. The Court can mould relief to preserve their legitimate opportunity, particularly when it transpires that the appointees are qualified, the posts are sanctioned, the selection was bona fide and there is no allegation of fraud or manipulation in the selection process.

Hence, this is a fit case to expressly make equitable exception, on the basis of particular facts and circumstances of the case. Therefore, having regard to the peculiar facts and circumstances of the present case, and particularly to the fact that the petitioners No.4 to 9 had participated in the recruitment process in good faith, that their appointments were made against sanctioned posts pursuant to a process undertaken by the petitioner-school, and that there is nothing on record to suggest that the said appointees had any role whatsoever either in the school‟s failure to obtain the Minority Educational Institution Status Certificate or in the decision to proceed with the recruitment by treating the institution as a minority school, I am of the view that the interest of the said appointees deserves to be protected as a matter of the peculiar facts of this case. Accordingly, the 3^rd respondent/DI is directed to issue the necessary orders approving the appointments of the petitioners No. 4 to 9.

It is made expressly clear that this direction is being issued as an isolated measure, confined strictly to the peculiar facts and circumstances of the present case, and shall not be treated as a precedent or as laying down any general proposition for approval of appointments made by the petitioner-school without compliance with the statutory requirements. Such approval shall also not, in any manner, be construed as an acceptance, recognition or adjudication by this Court of the status of the petitioner-school as a minority educational institution, nor shall it confer upon the school any right to claim the privileges or exemptions available to a minority institution. The petitioner-school shall, in terms of the liberty granted and the direction issued by the Hon‟ble Supreme Court by its order dated August 4, 2022, take appropriate proceedings in accordance with law for obtaining the requisite Minority Educational Institution Status Certificate from the competent authority. Until such certificate is duly obtained in accordance with the prescribed procedure, the petitioner-school shall not proceed with any further recruitment, including recruitment against any sanctioned vacant post, by invoking or relying upon its alleged minority status. Any advertisement already published for such recruitment and any recruitment process initiated pursuant thereto shall, forthwith, stand set aside and shall not be acted upon any further. It is clarified that the present direction granting approval to the petitioners No.4 to 9 is an exceptional, one-time relief founded upon the peculiar equities of the present case and shall not prejudice or dilute the statutory requirement of obtaining minority status in accordance with law for any future exercise of recruitment by the petitioner-school.

Let the 3^rd respondent/DI conclude the exercise as directed within a period of 6 weeks from the date of communication of copy of this judgment.

The present writ petition WPA No. 23416 of 2024 stands disposed of with the direction as above. Pending application/s if any also stand/s disposed of.

Urgent certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.

At the time of delivery of judgment Mr. Kamalesh Bhattacharya, learned advocate for the petitioners has submitted that date of approval of the petitioner nos. 4 to 9 may be from the date of their joining respectively. He has also submitted that arrear salary may be directed to be paid.

In view of the judgment earlier delivered by this Court, the prayer made on behalf of the petitioners appears to be justified.

Hence, it is further directed that the respondent no. 3/District Inspector of Schools (SE), Barrackpore shall approve petitioner nos. 4 to 9 with effect from the date of their joining respectively.

Arrear salary shall be disbursed to the petitioner nos. 4 to 9 within a period of three months from the date of communication of a copy of this judgment.