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Debangsu Basak, J.—1. Does the Minority Commission established under the National Commission for Minority Educational Institutions Act, 2004 have original jurisdiction to grant declaration of status is one of the issues coming up for considerations in the four writ petitions along with one connected application. They have been taken up for hearing analogously as they involve substantially the same issues.
W.P. No. 12033 (W) of 2013, W.P. No. 12040 (W) of 2013 and W.P. No. 12036 (W) of 2013 are writ petitions filed by three teachers of a college complaining that the college is not a minority institution. According to the teachers, the Governing Body which had resolved to suspend them and to initiate disciplinary proceedings against them had no jurisdiction to do so as such the Governing Body was not constituted in accordance with the First Statutes of Calcutta University.
The fourth writ petition being W.P. No. 24847 (W) of 2015 is a petition filed by the college seeking a declaration that the college was declared as a minority institution.
It has been contended on behalf of the teachers that, the college has not been declared as a minority institution by the competent authority under the provisions of the National Commission for Minority Educational Institutions Act, 2004. The declaration that has been made by the Minority Commission on October 13, 2008 is without jurisdiction. The Minority Commission does not have original jurisdiction to declare an institution as a minority institution at the first instance. A competent authority established under the provisions of the National Commission for Minority Educational Institutions Act, 2004 has not declared the college to be a minority institution. In support of the contention that the Commission does not have original jurisdiction to declare any institution as a minority institution at the first instance reliance has been placed on , 2008 Volume 2 Calcutta High Court Notes page 530 (Kiran Subbha & Ors. v. State of West Bengal & Ors.) and an unreported decision of a Single Bench rendered in W.P. No. 4406 (W) of 2010 with W.P. No. 5002 (W) of 2010. The declaration of the college as a minority institution made by the Minority Commission on October 13, 2008 is, therefore, bad in law. The subsequent communication of the State Government stating that since the Minority Commission has declared the college to be a minority institution the State has nothing to do with the matter, according to the petitioners, are also without any jurisdiction as the State Government is relying upon the initial declaration of the Minority Commission. Such initial declaration is bad in law, therefore, the subsequent actions taken by the State Government pursuant thereto is also bad in law. All actions taken by the college and the authorities treating the college as a minority institution is bad in law.
Since the college is not a minority institution the Governing Body of the college has to be constituted in accordance with the First Statutes of Calcutta University. Admittedly, the Governing Body which has resolved to suspend the teachers and to initiate disciplinary proceedings against them has not been constituted in accordance with the First Statutes of Calcutta University. Referring to the letter dated July 16, 2012 issued by the Calcutta University replacing two Governing Body members of the college, it has been submitted on behalf of the petitioners that, the college authorities did not allow the new nominees of Calcutta University to function as a Governing Body members. Consequently, the resolution of the Governing Body dated February 3, 2013 suspending the three teachers is bad in law.
It has been contended on behalf of the college authorities that, the college has been declared to be a minority institution by the Minority Commission on October 13, 2008. Such declaration is valid. A Minority Commission has the jurisdiction to declare an institution as a minority institution under the provisions of Section 11(f) of the Act of 2004. A distinction has been sought to be made between an institution which was already established a minority institution prior to coming into the effect of the Act of 2004 and an institution which is proposed to be established after the coming into effect of the Act of 2004. In the first scenario the Minority Commission has the original jurisdiction while in the second scenario the competent authority under the Act of 2004 has the original jurisdiction.
Learned Advocate for the college authorities has relied upon , 1998 Volume 6 Supreme Court Cases page 674 (N. Ammad v. Manager, Emjay High School & Ors.) in support of the proposition that, once an institution is a minority institution it is so from the date of its establishment notwithstanding the subsequent declaration as such by a competent authority. Applying such ratio in the present case, according to him, the college is a minority institution since the date of its establishment which is much prior to the date of declaration being October 13, 2008. Learned Advocate for the college authorities had submitted that since the institution is a minority institution it is governed by its own constitution. He has referred to the constitution of the institution for composition of the governing body. Referring to the various provisions therein, he has submitted that, the governing body which has resolved to suspend the three teachers and proceed against them in a disciplinary proceeding was validly constituted. The order of suspension is, therefore, valid. The college authorities ought to be permitted to continue with the disciplinary proceedings in accordance with law.
Referring to , 2005 Volume 6 Supreme Court Cases page 404 (ICICI Bank & Anr. v. Municipal Corporation of Greater Bombay & Ors.), , 1992 Volume 4 Supreme Court Cases page 363 (Commissioner of Income Tax v Sun Engineering Works (P) Ltd.) and , 2008 Volume 14 Supreme Court Cases page 283 (Pradip J. Mehta v. Commissioner of Income Tax, Ahmedabad) learned Advocate for the college authorities has submitted that, the ratio of the judgments alone is a binding precedent. A ratio of a judgment has to be ascertained by analyzing all the material facts and issues involved in the case and argued on the both sides. The decision should be read with reference to and in the context of the particular statutory provision interpreted by the Court. Consequently, Kiran Subbha & Ors. (supra) and the judgment in W.P. No. 4406 (W) of 2010 with W.P. No. 5002 (W) of 2010 should be read accordingly. They have no manner of application in the facts scenario of the present case.
Learned Advocate for the college has relied upon an unreported decision of the Supreme Court dated December 6, 2012 rendered in Civil Appeal No. 3070 of 2004 (Governing Body of P.A.E.M. College & Anr. v. State of Jharkhand & Ors.) as well as another unreported decision of a Division Bench of the Allahabad High Court dated November 26, 2015 rendered in Special Appeal Defective No. 552 of 2015 (National Commission for Minority Edu. Institutions v. Abhinawa Sewa Sansthan Mahavidyalaya & Ors.). Referring to such decisions, it has been submitted that, the Minority Commission has original jurisdiction under Section 11(f) of the Act of 2004 to declare an institution as a minority institution.
Learned Advocate for the State had submitted that, the college is not a minority institution. The Minority Commission did not have the original jurisdiction to grant the declaration on October 13, 2008. Such declaration is not valid in the eye of law. He has referred to the various provisions of the Act of 2004 and has submitted that, with the coming into force the Act of 2004 at the first instance a competent authority under the Act of 2004 has the jurisdiction to grant a declaration. If the application for declaration is rejected then an appeal lies to the Minority Commission. While considering such appeal a Minority Commission may grant the declaration as sought for. The Minority Commission retains the jurisdiction to cancel such declaration under Section 12C of the Act of 2004. According to him, the college authorities are not entitled to any relief in W.P. No. 24847 (W) of 2015 or in the connected application filed therewith.
Four issues have arisen for consideration for the present writ petition. They are:-- (i) whether Minority Commission has the original jurisdiction to declare an institute as a Minority Educational Institution? (ii) whether the declaration dated October 13, 2008 made by the Minority Commission is valid? (iii) whether the minutes of the meeting of the Governing Body dated February 3, 2013 relating to the suspension of the three teachers are valid? (iv) whether the State is in error in withdrawing the approval granted to the Recruitment Rules?
The college was established in 1992 by a registered society. An application for approval of the proposal for establishment of the college with minority status was submitted with the State Government. Such application had remained undecided. The society and the organizing committee of the college jointly had filed an application dated May 27, 2008 before the National Commission for Minority Educational Institutions for declaration of minority status. By a writing dated October 13, 2008 the National Commission had granted minority declaration. The college had, thereafter, applied with the State Government for grant of minority status on December 2, 2008. By a writing dated January 12, 2009 the State Government had opined that in view of the declaration by the Minority Commission no further declaration of the same status was required.
The college in the meantime had been granted affiliation by the Calcutta University. Subsequent to the declaration by the Minority Commission, the college had framed rules relating to its management and administration and had submitted the same for approval with the Calcutta University. In a syndicate meeting dated July 14, 2009 Calcutta University had approved such Management Rules. A Governing Body in terms of such Rules was constituted. Two of the teachers before Court were members of the Governing Body. The Governing Body had received complaints against three teachers. A fact finding Committee was constituted by the Governing Body to look into the allegations against the three teachers. Such fact finding Committee had submitted a recommendation for initiation of disciplinary proceedings against the teachers. The Governing Body by a resolution dated July 13, 2012 had resolved to initiate disciplinary proceedings against the teachers.
The teachers have assailed the minority status of the college, and consequently the validity of the governing body resolving to initiate disciplinary proceedings. The result of the challenges by the teachers would depend upon the interpretation of the various provisions of the Act of 2004.
The National Commission for Minority Educational Institutions Act, 2004 have came into force with effect from November 11, 2014. The preamble of the Act of the 2004 says that a National Commission for Minority Educational Institutions is sought to be constituted by the Act of 2004 and that it would be provide for matters connected therewith or incidental thereto. Few sections of the Act of 2004 are relevant in the present context. They are Sections 2(aa), 2(ca), 2(g), 10, 11, 12A, 12B, 12C, 12F and 22.
"2(aa). "appropriate Government" means, -
(i) in relation to an educational institution recognized for conducting its programmes of studies under any Act of Parliament, the Central Government; and
(ii) in relation to any other educational institution recognized for conducting its programmes of studies under any State Act, a State Government in whose jurisdiction such institution is established."
"2(ca). "Competent authority" means the authority appointed by the appropriate Government to grant no objection certificate for the establishment of any educational institution of their choice by the minorities."
"2(g). "Minority Educational Institution" means a college or institution (other than a University) established or maintained by a person or group of persons from amongst the minorities."
"10. Right to establish a Minority Educational Institution.--
(1) Any person who desires to establish a Minority Educational Institution may apply to the Competent authority for the grant of no objection certificate for the said purpose.
(2) The Competent authority shall, -
(a) on perusal of documents, affidavits or other evidence, if any; and
(b) after giving an opportunity of being heard to the applicant, decide every application filed under sub-section (1) as expeditiously as possible and grant or reject the application, as the case may be:
Provided that where an application is rejected, the Competent authority shall communicate the same to the applicant.
(3) Where within a period of ninety days from the receipt of the application under subsection (1) for the grant of no objection certificate, -
(a) the Competent authority does not grant such certificate; or
(b) where an application has been rejected and the same has not been communicated to the person who has applied for the grant of such certificate,
it shall be deemed that the Competent authority has granted a no objection certificate to the applicant.
(4) The applicant shall, on the grant of a no objection certificate or where the Competent authority has deemed to have granted the no objection certificate, be entitled to commence and proceed with the establishment of a Minority Educational Institution in accordance with the rules and regulations, as the case may be, laid down by or under any law for the time being in force.
Explanation.--For the purposes of this section, -
(a) "applicant" means any person who makes an application under sub-section (1) for establishment of a Minority Educational Institution;
(b) "no objection certificate" means a certificate stating therein, that the Competent authority has no objection for the establishment of a Minority Educational Institution.
10A. Right of a Minority Educational Institution to seek affiliation.--
(1) A Minority Educational Institution may seek affiliation to any University of its choice subject to such affiliation being permissible within the Act under which the said University is established.
(2) Any person who is authorized in this behalf by the Minority Educational Institution, may file an application for affiliation under sub-section (1) to a University in the manner prescribed by the Statute, Ordinance, rules or regulations, of the University:
Provided that such authorized person shall have right to know the status of such application after the expiry of sixty days from the date of filing of such application."
"11. Functions of Commission.--Notwithstanding anything contained in any other law for the time being in force, the Commission shall-
(a) advise the Central Government or any State Government on any question relating to the education of minorities that may be referred to it;
(b) enquire, suo motu, or on a petition presented to it by any Minority Educational Institution, or any person on its behalf into complaints regarding deprivation or violation of rights of minorities to establish and administer educational institutions of their choice and any dispute relating to affiliation to a University and report its finding to the appropriate Government for its implementation;
(c) intervene in any proceeding involving any deprivation or violation of the educational rights of the minorities before a court with the leave of such court;
(d) review the safeguards provided by or under the Constitution, or any law for the time being in force, for the protection of educational rights of the minorities and recommend measures for their effective implementation;
(e) specify measures to promote and preserve the minority status and character of institutions of their choice established by minorities;
(f) decide all questions relating to the status of any institution as a Minority Educational Institution and declare its status as such;
(g) make recommendations to the appropriate Government for the effective, implementation of programmes and schemes relating to the Minority Educational Institutions; and
(h) do such other acts and things as may be necessary, incidental or conducive to the attainment of all or any of the objects of the Commission."
"12A. Appeal against orders of the Competent authority.--
(1) Any person aggrieved by the order of refusal to grant no objection certificate under sub-section (2) of section 10 by the Competent authority for establishing a Minority Educational Institution, may prefer an appeal against such order to the Commission.
(2) An appeal under sub-section (I) shall be filed within thirty days from the date of the order referred to in sub-section (I) communicated to the applicant:
Provided that the Commission may entertain an appeal after the expiry of the said period of thirty days, if it is satisfied that there was sufficient cause for not filing it within that period.
(3) An appeal to the Commission shall be made in such form as may be prescribed and shall be accompanied by a copy of the order against which the appeal has been filed.
(4) The Commission, after hearing the parties, shall pass an order as soon as may be practicable, and give such directions as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice.
(5) An order made by the Commission under sub-section (4) shall be executable by the Commission as a decree of a civil court and the provisions of the Code of Civil Procedure, 1908 (5 of 1908), so far as may be, shall apply as they apply in respect of a decree of a civil court.
"12B. Power of Commission to decide on the minority status of an educational institution.--
(1) Without prejudice to the provisions contained in the National Commission for Minorities Act, 1992 (19 of 1992), where an authority established by the Central Government or any State Government, as the case may be, for grant of minority status to any educational institution rejects the application for the grant of such status, the aggrieved person may appeal against such order of the authority to the Commission.
(2) An appeal under sub-section (1) shall be preferred within thirty days from the date of the order communicated to the applicant:
Provided that the Commission may entertain an appeal after the expiry of the said period of thirty days, if it is satisfied that there was sufficient cause for not filing it within that period.
(3) An appeal to the Commission shall be made in such form as may be prescribed and shall be accompanied by a copy of the order against which the appeal has been filed.
(4) On receipt of the appeal under sub-section (3), the Commission may, after giving the parties to the appeal an opportunity of being heard, and in consultation with the State Government, decide on the minority status of the educational institution and shall proceed to give such direction as it may deem fit and, all such directions shall be binding on the parties.
Explanation. - For the purposes of this section and section 12C, "authority" means any authority or officer or commission which is established under any law for the time being in force or under any order of the appropriate Government, for the purpose of granting a certificate of minority status to an educational institution."
"12C. Power to cancel.--The Commission may, after giving a reasonable opportunity of being heard to a Minority Educational Institution to which minority status has been granted by an authority or Commission, as the case may be, cancel such status under the following circumstances, namely:--
(a) if the constitution, aims and objects of the educational institution, which has enabled it to obtain minority status has subsequently been amended in such a way that it no longer reflects the purpose or character of a Minority Educational Institution;
(b) if, on verification of the records during the inspection or investigation, it is found that the Minority Educational Institution has failed to admit students belonging to the minority community in the institution as per rules and prescribed percentage governing admissions during any academic year.
"12F. Bar of jurisdiction.--No court (except the Supreme Court and a High Court exercising jurisdiction under articles 226 and 227 of the Constitution) shall entertain any suit, application or other proceedings in respect of any order made under this Chapter."
"22. Act to have overriding effect.--The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."
Chapter III of the Act of 2004 provides for rights of a minority educational institution. Section 10 under Chapter III recognizes the right of any person who desires to establish a minority educational institution to approach the competent authority for the grant of a No Objection Certificate for such purpose. Sub-section (2) of Section 10 requires the competent authority to peruse the documents, affidavits and other evidences and after giving an opportunity of hearing to the application decide the application for grant of No Objection Certificate for establishing a minority educational institution. It recognizes that the competent authority has the power to reject such application in a given case. Sub-section (3) of Section 10 provides a time period within which the application has to be decided by the competent authority. It goes on to say that, in the event the application is not decided within a period of 90 days from the receipt of the application it shall be deemed that the competent authority had granted a No objection Certificate to the applicant. Sub-section (4) provides that on the grant of No Objection Certificate or when a No objection Certificate is deemed to have been granted in view of the provision of Sub-section (3), the applicant would be entitled to commence and proceed with the establishment of a minority educational institution in accordance with the rules and regulations laid down by or under any law for the time being in force.
Chapter IV of the Act of 2004 deals with the functions and powers of the Commission under Section 11 of the Act of 2004 which is under Chapter IV of the Act of 2004, the various functions that a Commission is required to discharge have been specified. One of such functions as provided under Section 11(f) is to decide all questions relating to the status of any institution as a minority educational institution and declare its status as such.
Section 12 of the Act of 2004 provides for the powers of the Commission. Section 12A lays down that the Commission would act as an appellate authority against orders passed by the competent authority. Section 12B empowers the Commission to decide on the minority status of an educational institution. Section 12C empowers the Commission to cancel a minority status granted by the competent authority or the Commission as the case may be. Section 12F bars the jurisdiction of Courts except the Supreme Court and a High Court exercising jurisdiction under Articles 226 and 227 of the Constitution of India to entertain any suit or proceedings in respect of any order made under Chapter IV of the Act of 2004. Section 22 of the Act of 2004 provides that the provisions of the Act of 2004 shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
The Act of 2004 envisages a two-tier system under which an institution would be declared as a minority institution. The first tier is at the level of the competent authority. The competent authority as defined in Section 2(ca) of the Act of 2004 has been vested with the jurisdiction to decide an application requesting grant of declaration of an institution as a minority educational institution. The competent authority is exercising original jurisdiction to decide such issue. A person wishing to seek a declaration of minority educational institution is required to apply to the competent authority as defined under Section 2(ca) of the Act of 2004 for the grant of no objection certificate for such purpose. The competent authority thereafter may grant the declaration or may refuse to do so. The refusal of the application would be an order under Section 10(2) of the Act of 2004. Such an order is appealable under Section 12A of the Act of 2004. Section 11 of the Act of 2004 lays down the functions of the Commission. Under Section 11(f) of the Act of 2004 it has the power to decide all questions relating to the status of an institution as a minority educational institution and declared its status as such.
The provisions of the Act of 2004 have to be read harmoniously. An interpretation of the various provisions of the Act of 2004 which allows every provision to play its role assigned should be preferred over that which renders a provision or a part of it as redundant. The appeal under Section 12A is against an order refusing to grant no objection. Section 11(f) of the Act of 2004 recognizes the right of an appellate authority to have the same powers as that of the original authority in deciding the lis. In such context the Commission has been empowered under Section 11(f) to declare if it thinks appropriate that an institution is a minority educational institution.
Interpreting Section 11(f) of the Act of 2004 as an independent function of the Minority Commission divorced of Section 2(ca) and Section 10 thereof would do violence to the two tier system of adjudication of an application for grant of approval. Accepting such an interpretation would allow an applicant the forum of the competent authority as well as the Minority Commission for the same purpose. Such an interpretation would render the competent authority under Section 2(ca) as well as the provisions of Section 10 including Section 10(3) as redundant. The elaborate mechanism provided under the Act of 2004 to consider and decide an application for grant of minority status more particularly the deeming provisions of Section 10(3) would be rendered useless. Appellate forum provided under Section 12A would then stand converted to both an appellate forum and one with original jurisdiction for the same purpose. A person aggrieved by a decision of the Minority Commission purporting to exercise original jurisdiction for such purpose would lose an appellate forum as the Act of 2004 does not identify an appellate forum from an order passed by the Minority Commission. Such person cannot approach a Civil Court in view of Section 12F of the Act of 2004.
Kiran Subbha & Ors. (supra) is a Division Bench judgment of this Hon''ble High Court. It has decided the question as to whether a Commission under the Act of 2004 has original jurisdiction to declare an institution as a minority educational institution or not. It has held that,
"47. Thus, from the aforesaid Rule it is clear that whether a particular institution is established or administered by the linguistic minority or not could be examined and decided by the State Government before the said Act of 2004 came into force, one has to apply to competent authority under section 10 of the said Act for obtaining no objection for establishing such institution. In our view, the Commission under Act of 2004 can act as an appellate authority, if such application is rejected."
"44. It is contended that in section 10 read with section 11 of 2004 Act there is complete mechanism for granting declaration of minority status. Such contention in our view is not appropriate in this case. Section 10 enables any person to apply to the competent authority for the grant of no objection certificate to establish a minority educational institution. This provision is applicable at the initial stage. This competent authority, it appears to us, can grant no objection certificate or refuse it but it has no power to declare a particular existing institution as minority one. The Commission is the appellate authority against the above order refusing to grant no objection certificate. The functions and powers of the Commission constituted under Act of 2004 have been provided in section 11 of the said Act. It appears to us, that the Commission, in the matter of deciding question of granting no objection certificate acts as an appellate authority and this would be clear from section 12A and section 12B of the 2004 Act, it is clear from section 12B of the 2004 Act that the Commission cannot pass any order for declaration at the first instance. This initial function has to be performed by the competent authority established by the Central Government or any State Government. In the process of doing so this authority has to reach fact finding about minority. Section 12B of 2004 Act is set out hereunder for better understanding:
12B. Power of the Commission to decide on the minority status of an educational institution.--
(1) Without prejudice to the provisions contained in the National Minority Commission Act, 1992, where any authority established by the Central Government or any State Government, as the case may be, for grant of minority status to any educational institution rejects the application for the grant of such status, the aggrieved person may appeal against such order of the authority to the Commission.
(2) An appeal under the sub-section (1) shall be preferred within thirty days from the date of the order communicated to the applicant:
Provided that the Commission may entertain an appeal after expiry of the said period of thirty days, if it is satisfied that there was sufficient cause for not filing it within that period.
(3) An appeal to the Commission shall be made in such form as may be prescribed and shall be accompanied by a copy of the order against which the appeal has been filed.
(4) On receipt of the appeal under sub-section (3), the Commission may, after giving the parties to the appeal, an opportunity of being heard, decide on the minority status of the educational institution and shall proceed to give such directions as it may deem fir an, such directions shall be binding on the parties.
Explanation- For the purposes of this section and section 12C, ''authority'' means any authority or officer or commission which is established under any law for the time being in force or under any order of the appropriate Government, for the purpose of granting a certificate of minority status to an educational institution."
The decision in Kiran Subbha & Ors. (supra) was rendered in the context of writ petitioners there seeking a declaration that the Nepali/Gorkha speaking people of hill areas in Darjeeling are linguistic minorities and that they are entitled to the consequential declarations in relation to educational institutions established and administered of such linguistic minorities. In such context the provisions of the Act of 2004 along with provisions of other Acts were considered by their Lordships. Their Lordships has held that, the contention that Section 10 read with Section 11(f) of the 2004 Act is a complete mechanism for grant of declaration of minority status is not appropriate.
Kiran Subbha & Ors. (supra) has been considered in W.P. No. 4406 (W) of 2010 with W.P. No. 5002 (W) of 2010. The provisions of Section 11 as well as Sections 12 and 12A of the Act of 2004 have been considered therein. It has been held that,
"it can be pointed out that section 11 of the Act of 2004 describes the functions of the Commission and section 12 describes the powers of the Commission. Such 12, 12A, leave no manner of doubt that in the matter of granting minority status the National Commission has been given an appellate power. I am in any event bound by the Division Bench Judgment of this Court. When the commission is the appellate authority and the competent authority is the original authority under the Act and the admitted fact is that the task of the original authority was performed by the appellate authority, there is hardly any scope for any debate that the order was without jurisdiction. The fact that the State or the University unsuccessfully challenged the order before the commission is altogether besides the issue. Any order, which is passed without jurisdiction is illegal and a nullity and such illegality can be set up at any stage when the illegal order is sought to be relied upon."
In Sun Engineering Works (P) Ltd. (supra) it has been held that it is neither desirable nor permissible to pick out a word or a sentence from the judgment of the Supreme Court, divorced from the context of the questions under consideration and treat it to be a complete ''law'' declared by the Supreme Court. The judgment must be read as a whole and the observations from the judgment have to be considered in light of the questions which were before the Supreme Court. A decision of the Supreme Court takes its colour from the questions involved in the case in which it was rendered. While applying the decision to a later case, the Courts must carefully try to ascertain the true principles laid down by the decision of the Supreme Court and not to pick out words or sentences from the judgment divorced from the context of the questions under consideration by the Supreme Court, to support their reasonings.
In ICICI Bank & Anr. (supra) it has been held that, the ratio and effect of the judgment is required to be ascertained with reference to the question of law as decided by the Court. The ratio of the judgment or the principle upon which the question before the Court has been decided is alone binding as a precedent. The decision of the Supreme Court upon a question of law is considered to be a binding precedent and this must be ascertained and determined by analyzing all material facts and issues involved in the case. In Girnar Traders (supra) it has been held that, only the ratio decidendi can act as to binding or authoritative precedent.
Applying such position in law, the decision rendered by the Supreme Court in Governing Body of P.A.E.M. College (supra) has to be considered. In such case the challenge in the writ petition was to the order passed by the Government of Jharkhand holding that the college was not a minority institution entitled to the protection of Article 30(1) of the Constitution of India. At the time when such writ petition was filed, the Act of 2004 did not come into being. During the pendency of the writ petition the Act of 2004 had come into effect. In the context of an application for declaration of minority status being rejected by the State government the Hon''ble Supreme Court had directed the Commission established under the Act of 2004 to look into the issue. Essentially the Supreme Court had directed the Commission to act as an appellate authority since a decision by the State Government not to grant minority status was under challenge in the writ petition. The issue whether the Commission has original jurisdiction to declare minority status was not in issue in such case nor was it decided.
Governing Body of P.A.E.M. College (supra) has been considered by the Division Bench of the Allahabad High Court in National Commission for Minority Edu. Institutions (supra). With utmost humility, I am unable to accept the ratio of National Commission for Minority Edu. Institutions (supra).
In Pradip J. Mehta (supra) the Supreme Court has held that, a High Court is within its rights to differ from a view taken by the other High Courts. It should however record its reasons for such purpose.
The ratio of Governing Body of P.A.E.M College (supra) has not been correctly applied in National Commission for Minority Edu. Institutions (supra). The reasoning of vesting the Minority Commission with original jurisdiction to declare minority status is not acceptable to me as it would allow two forum to have original jurisdiction under the Act of 2004 for the same purpose. Minority Commission would then be both an appellate forum as well as have original jurisdiction for the same purpose. Clothing the Minority Commission with original jurisdiction would affect the right of appeal. The Act of 2004 has not provided for an appellate forum the decision of the Minority Commission. The Act of 2004, however, provides for an appeal to the Minority Commission against a decision relating to the status of an educational institution. Moreover, Kiran Subbha & Ors. (supra) is a binding precedent on me.
In such circumstances, the first issue is answered by holding that the Minority Commission does not have the original jurisdiction to declare minority status of an educational institution.
In view of the answer to the first issue, the second issue has to be answered in favour of the teachers and against the college. The declaration dated October 13, 2008 of the Minority Commission is not valid.
The teachers were suspended and sought to be proceed against by a resolution of Governing Body dated February 3, 2013. On such date the Governing Body taking the resolution was admittedly not constituted in accordance with the provisions of the First Statutes of the Calcutta University. The composition of the Governing Body has been claimed to be in accordance with the constitution of the college. The Calcutta University to which the college is affiliated had proceeded on the basis of the declaration of minority status granted by the Minority Commission in approving the independent Rules for the management and administration of the college. The basis of such grant of approval is bad in law. Therefore, the approval cannot be said to be valid. The participation of two teachers in such a Governing Body does not clothe the Governing Body with any legality which it did not have at the first place. The teachers have a right to have their fate decided by a duly constituted Governing Body. The Governing Body deciding to proceed against the teachers cannot be said to be duly constituted. The declaration of the minority status is bad. The composition of the Governing Body is consequently vitiated. The Governing Body on February 3, 2013 not being constituted in accordance with the First Statutes of Calcutta University has no jurisdiction to take the resolution as recorded on February 3, 2013 or to proceed against the teachers.
In such circumstances, the third issue is answered in favour of the teachers and against the college. The resolution dated February 3, 2013 of the Governing Body suspending the teachers and resolving to initiate disciplinary proceedings against the teachers are set aside. All consequential steps taken by any authority in terms of the resolution dated February 3, 2013 of the Governing Body are set aside. The college will allow the teachers to rejoin immediately. All monetary and service benefits accruing the teachers during the period of their suspension should be paid and restored to them as expeditiously as possible. The teachers will be treated to be in service as if the order of suspension had not been passed.
W.P. No. 12033 (W) of 2013, W.P. No. 12040 (W) of 2013 and W.P. No. 12036 (W) of 2013 are allowed. No order as to costs.
In W.P. No. 24847 (W) of 2015 the college authorities have impugned a writing dated January 20, 2015 issued by the Higher Education Department of the State. By such writing the recruitment rules for appointment of teachers, librarians for the college as approved by the writing dated December 13, 2014 was cancelled and withdrawn.
State authorities had granted approval to the recruitment rules for the college on the premise that the college had been declared as a minority educational institution. The State thereafter realizing its mistake had withdrawn such approval by the writing dated January 20, 2015. The college was never declared as a minority educational institution validly. Consequently, the State Government was in error in granting approval to the recruitment rules for the college on the premise that the college was a minority educational institution. This mistake has been rightly corrected by the impugned writing dated January 20, 2015. Consequently, college authorities are not entitled to any relief in its writ petition. The fourth issue is answered in the negative, against the college and in favour of the State.
W.P. No. 24847 (W) of 2015 is, therefore, dismissed. In view of the dismissal of the writ petition, CAN 1406 of 2016 is also dismissed.
It is clarified that this order will prevent the college or the society or any other person from applying for grant of minority status in accordance with the Act of 2004. In the event of such an application being made or in the event the competent authority under the Act of 2004 is persuaded to consider a pending application, if any, the competent authority will decide such application is accordance with law being uninfluenced by any of the observations made therein.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
Later:--
The learned Advocate for the college authorities prays for stay of the judgment and order. He submits that, by reason of this judgment and order, the college will be without any administration. He seeks two weeks'' time.
The learned Senior Advocate for the teachers opposes the prayer. He submits that, the State should be directed to appoint an administrator.
Considering that the college was functioning in a particular manner over a period of time, it is proper to grant stay of operation of this judgment and order for a limited period.
Accordingly, there will be a stay of operation of this judgment and order for a period of two weeks from date.