Narainpur Mission Girls Junior Basic School and Others vs State of West Bengal and Others

Debangsu Basak, J.—The first petitioner claims itself to a minority educational institution. It claims that its right to administer the primary school run by it has been affected by the action of the Chairman, Birbhum District Primary School Council. The concerned Council has sought to appoint teachers to the school. The appointment of teachers has affected the first petitioner''s rights to manage and administer a school as a minority educational institution.

On behalf of the petitioners Mr. Baid contends that, the first petitioner is a part and parcel of Narainpur Mission Girls Junior Basic School. Such school has been recognized as a minority by educational institution with effect from January 1, 1946. The first petitioner and Narainpur Mission Girls Junior Basic School are located at the same premises. The Northern Evangelical Lutheran Church is the owner of the land on which the school is situated. The school has been established and run and administered by Christians, a minority community. The school has been variously described in diverse correspondence and writings of the State authorities. The State authorities have treated the first petitioner as a minority educational institution till the complaint made to the Minorities Commission and the impugned action.

On the complaint that the educational authorities of the State Government was not according permission to the first petitioner to fill up vacant posts of teachers, the first petitioner had approached the National Commission for Minority Educational Institutions. Such complaint was registered as Case No. 284 of 2009. Such complaint was disposed of by an Order dated November 12, 2009 by the National Commission holding, inter alia, that, the first petitioner is a minority educational institution and that, the impugned action of the State Government in not granting permission to the first petitioner to fill up its vacant posts was violative of educational rights of the minorities. The State Government was directed to implement the findings of the Commission by granting permission to the first petitioner to fill up the vacant posts.

Relying upon N. Ammad Vs. The Manager, Emjay High School and Others, and Brahmo Samaj Education Society and Others Vs. State of West Bengal and Others, it is submitted that, management of a minority educational institution has full freedom to appoint any person subject to restrictions as regards qualification prescribed under statute, rules or regulations. It is submitted that similar view has been expressed in 2014 Volume 2 Calcutta Law Times page 332 (The Managing Committee, Contai Rahmania High Madrasah & Anr. v. The State of West Bengal & Ors.).

Mr. Sanyal for the Council submits that, the first petitioner has not been declared as a minority educational institution and as such it is not entitled to any protection. The decision of the Minority Commission being without jurisdiction is a nullity. Moreover, the first petitioner is not a legal entity as it is without a Welfare Committee. Referring to the various provisions of the Bengal Rural Primary Education Act, 1930, West Bengal Primary Education Act, 1973, the West Bengal Board of Secondary Education Act, 1963 and by National Commission for Minority Educational Institutions Act, 2004 it is submitted that, the State Government is the appropriate authority to declare and recognize any institution or school as a minority educational institution for schools and institutions established prior to 2004 and the Minority Commission for the period subsequent thereto. Reliance is placed on Kiran Subbha and Others Vs. State of West Bengal and Others, in this regard. None of the authorities having recognized the first petitioner as a minority educational institution, it is not so. Therefore, the action of the Council in appointing teachers to the first petitioner is in accordance with law.

The validity of the impugned action of the State will depend upon the status of the first petitioner. Is the first petitioner a minority educational institution is the issue on which the impugned action of the State required to be tested.

Kiran Subbha & Ors. (supra) is of the view that, a Writ Court is competent to declare an educational institution as a minority educational institution. The issue whether an institution is a minority educational institution or not could be decided by the State Government before the coming into effect of the National Commission for Minority Educational Institutions Act, 2004. The Competent authority under Section 10 of the Act of 2004 can issue no objection for establishing a minority educational institution and the Commission can act as the appellate authority on rejection of such no objection. It states that a minority status cannot be inferred and/or presumed automatically. It, however, does not lay down the entirety of the jurisdictional limits or the outer contours of the jurisdiction of a Minority Commission established under the Act of 2004.

The Act of 2004 has come into force from November 11, 2004. The Act of 2004 mandates the Central Government to constitute a body to be known as the National Commission for Minority Educational Institutions. Such Commission has been constituted by the Central Government. Functions and powers of the Commission has been laid down in Section 11 of the Act of 2004. Section 11(b) of the Act of 2004 allows the Commission, inter alia, to enquire, suo moto, 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 its choice.

Minority educational institution is defined in Section 2(g) of the Act of 2004 as a college or an educational institution established and administered by a minority or minorities.

Section 11 of the Act of 2004, therefore, allows an educational institution claiming to be a minority educational institution or any person or its behalf, to present a petition before the Commission requesting enquiry into the complaint of deprivation or violation of rights of minorities to establish and administer educational institutions of its choice. When such a petition is presented, the foremost issue required to be decided by the Commission is whether the petition relates to a Minority Educational Institution within the meaning of Section 2(g) of the Act of 2004 or not. An affirmative decision on such issue is sine qua non for the Commission to assume jurisdiction.

In the present case, in the complaint filed by the first petitioner before the commission and registered as Case No. 284 of 2009 the Commission by its Order dated November 12, 2009 has decided that the first petitioner herein is a minority educational institution. The Secretary, School Education Department, Secondary Branch, Government of west Bengal is a party therein. The parties have not placed any material on record to suggest that such decision has been assailed before or overturned by a competent forum. On the contrary, the petitioners complain that though bound the State has not complied with such order.

In the proceedings before the Commission the first petitioner has claimed itself to be a minority educational institution thereby being entitled to protection. This claim remains uncontested by the State educational authorities. The Commission has proceeded to assume jurisdiction after returning a finding that the first petitioner is a minority educational institution. This finding is binding between the first petitioner and the State educational authorities. This finding is essential to the assumption of jurisdiction by the Commission of the complaint made by the first petitioner against the State educational authorities. The fact that the State authorities choose not to appear before the Commission and contest the claim of the first petitioner made therein does not lessen the rigours of the order of the Commission.

The Commission, therefore, has the jurisdiction to return a finding as to whether or not the petitioner before it is minority institution. In the instant case, the affirmative finding of the Commission on such issue in favour of the first petitioner cannot be said to be without jurisdiction and, therefore, a nullity.

Even if one is to ignore the decision of the Commission dated November 12, 2009, which one must not, in this writ petition, the Court is called upon to decide the issue as to whether the first petitioner is a minority educational institution or not. This issue is ingrained in the relief sought for in the petition, although the petitioners have not prayed for a declaration to the effect that the first petitioner is a minority educational institution. The petitioners need not in the facts of this case. The first petitioner is a minority educational institution as would appear from the narration of the facts herein.

By a writing dated December 20, 1946, the State educational authorities had granted recognition to Narainpur Mission Girls Junior Basic School, Birbhum as a minority educational institution. The State educational authorities had permitted the first petitioner to open class VII by a writing dated June 10, 1954. The State educational authorities had treated the first petitioner as a minority educational institution and had accorded approval to the teachers appointed by it as would appear from the writings dated December 9, 1975, June 10, 1977, October 8, 1978 and March 29, 1980. The State education authorities had also interchangeably referred to the first petitioner as Narainpur Mission Girls Junior Basic School as would appear from writings dated April 25, 1967, September 6, 1974 and August 29, 2011.

The State education authorities had treated the first petitioner as a minority educational institution by granting approval to teachers appointed by it. These approvals have been over a considerable period of time for the Council to allege that the same had been done by mistake.

Narainpur Mission Girls Junior Basic School and the first writ petitioner are located on the same plot of land. There is no other school on the same plot of land. The two sections of the same schools may be governed by different Acts relating to the two different sections. That by itself does not take away the character of a minority educational institution if it is so. The initial school was recognized to be a minority educational institution. The subsequent upgradation to the same school allowed from time to time, using names in respect of the same school interchangeably, treating the same school as a minority educational institution indisputably establish that the first petitioner is a minority educational institution from December 20, 1946. The Council has not placed any material on record to suggest that the different sections of the same school is being run and administered by a body who was not and cannot be recognized to be from a minority community. The first writ petitioner is, therefore, a minority educational institution.

N. Ammad (supra), Brahmo Samaj Education Society & Ors. (supra) and The Managing Committee, Contai Rahmania High Madrasah & Anr. (supra) recognize that a minority educational institution is entitled to administer and manage its institution.

The impugned Memo dated June 20, 2015 seeks to appoint teachers in a minority educational institution. This is not permissible in view of the protection enjoyed by the first petitioner as a minority educational institution. The impugned memo is, therefore, set aside. The Council authorities will withdraw all teachers appointed by it to the first petitioner on and from the date it grants approval to the teachers appointed by the first petitioner. The Council authorities will consider the application for approval to the appointments of teachers to be made by the first petitioner in accordance with law within 4 weeks from the date of receipt of the same.

W.P. No. 26056(W) of 2015 is allowed with the aforesaid direction.

Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.