IN THE HIGH COURT OF JHARKHAND AT RANCHI

L.P.A. No. 684 of 2018

1. The State of Jharkhand

2. Principal Secretary, Human Resources Development
Department, Government of Jharkhand, Project Building
P.O. & P.S.- Dhurwa, District – Ranchi.
3. District Superintendent of Education, PO+PS- Godda,
District- Godda … … Appellants
Versus
1. Subhadra Jha, Son of Sri Jay Bhadra Jha, Resident of-
Poreyahat, Post Office- Poreyahat, Police Station-
Poreyahat, District- Godda, Jharkhand.
… … Respondent/Petitioner
2. St. Francis High School, Poriyahat, Godda, through its
Headmaster, at Poraiyahat, Post Office- Poraiyahat, Police
Station- Poraiyahat, District- Godda.
… … Performa Respondent/Respondent
---
CORAM: HON’BLE MR. JUSTICE APARESH KUMAR SINGH
HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
Through: Video Conferencing

For the Appellants : Mr. Ashutosh Anand, A.A.G.-III,

For the Resp. No.-1 : Mr. Rajendra Krishna, Adv.
For the Resp.-School : Mr. Md. Jalisur Rahman, Adv.

C.A.V. on 22.09.2020 Pronounced on 19.01.2021

Mrs. Anubha Rawat Choudhary. J

1. Heard Mr. Ashutosh Anand, learned Additional

Advocate General-III appearing on behalf of the appellants.

2. Heard Mr. Rajendra Krishna, learned counsel appearing

on behalf of the writ petitioner/respondent No.-1.

3. Heard Mr. Md. Jalisur Rahman, learned counsel

appearing on behalf of respondent-Minority School, namely,
Saint Francis High School, Poreyahat, Godda.

4. This appeal has been filed challenging the order dated

14.08.2018 passed by the learned writ court in W.P.(S) No. 1122
of 2011, whereby a direction has been issued to the
 2

respondents to consider the case of the writ petitioner for

permanent absorption on vacant and sanctioned post of
teacher in Sanskrit subject in the respondent’s school within a
reasonable period preferably within a period of four months
from the date of receipt of a copy of the order. The learned writ
court while passing the aforesaid direction has recorded a
finding that considering the series of the judgments of the
Hon’ble Supreme Court as referred to in the judgment, the case
of the petitioner fits into the eligibility condition for
consideration for permanent absorption in view of the fact that
the petitioner has rendered 14 years’ service on the date of
advertisement having possessed the requisite qualification.

Arguments on behalf of the Appellants

5. Learned counsel appearing on behalf of the appellants
has referred to para-83 of the memo of appeal which is a
representation dated 09.08.2010 filed by the petitioner before
the authorities and submits that there is no dispute that even
as per the petitioner, the petitioner has been working in the
respondent-minority school from 13.02.1996 on purely
temporary basis and there is only one sanctioned post of
Sanskrit teacher in the school which fell vacant on 31.01.2010
when one Surya Kumar Mandal, Sanskrit teacher
superannuated and thereafter on 13.02.2010, an advertisement
was issued for the purposes of appointment of Sanskrit
teacher, in which, the writ petitioner also participated and the
result was against the writ petitioner. In this representation,
the writ petitioner has contended that there was no
requirement to issue any advertisement and in fact the writ
petitioner ought to have been absorbed by way of
regularization and the school ought to have referred the case of
the writ petitioner for approval by the Directorate of Education
at Ranchi. It was also contended by the writ petitioner in this
 3

representation that from 01.02.2010 to 30.06.2010, the writ

petitioner was assured by the school that his case will be
referred for absorption and will be recommended for approval
by the State, but the same was not done by stating that the
petitioner has become over-aged and the petitioner does not
have B.Ed degree and by raising one or the other excuse, the
school has harassed him. The writ petitioner has also stated in
the said representation that in the year 1996 when he was
appointed in the school, the petitioner had the degree of
D.P.E.D. which was duly recognized by the State Government
and in the year 2008, his degree was de-recognized, but such
decision of the State Government does not apply to him as his
appointment was prior to 2008 and on the date of
appointment, he had the requisite qualification.
The petitioner has also raised a grievance in this particular
representation that in connection with his grievance, he met
the Secretary of the respondent-Minority School who did not
give any heed to his request and also met the District
Education Officer, Godda, Director Secondary Education,
Ranchi, but they also did not accede to his request and that
they are trying to appoint some other person in connivance
with each other.
6. The learned counsel for the appellants had taken specific
instructions which has been recorded in order dated 22.09.2020
that there is neither any scheme for regularization of teachers
working in minority institution nor any teacher in minority
institution has ever been regularized by the State Government
and if any such direction of regularization is issued by this
Court in connection with a teacher working in minority
institution under unsanctioned post, the same would amount
to interference in the affairs of the minority institution. The
aforesaid submission was made and recorded in order dated
 4

22.09.2020 in the backdrop of the fact that admittedly the name

of the petitioner was never referred to by the Managing
Committee of the minority institution for his regularization or
for his appointment pursuant to the advertisement issued by
the school for appointment of Sanskrit teacher in which the
petitioner had also participated, but his name was never
recommended.
7. The learned counsel for the appellants has also referred
to the supplementary-affidavit filed in the present case and
submits that for the purposes of appointment in minority
schools against sanctioned post, for which the fund is released
by the State Government by way of aid to the minority school
for payment of the salary of teachers holding the sanctioned
post, it is mandatory for the candidate to have the prescribed
qualification and the post is required to be filled through
advertisement. He submits that, on the one hand, on the date
of advertisement, the petitioner did not have the requisite
qualification to be appointed against the post of Sanskrit
teacher and on the other hand, the petitioner is claiming to be
absorbed by way of regularization in the school as a Sanskrit
teacher after having participated in the selection process
through advertisement and becoming unsuccessful. He has
also submitted that admittedly till date, the school has not
recommended the name of the petitioner for appointment and
any mandamus issued by this Court for consideration of
regularization of the petitioner would amount to interference
in the right of the educational institution to manage their
affairs and violate the provisions of Articles 29 & 30 of the
Constitution of India.
He submits that this aspect of the matter has not been
considered by the learned writ court while recording the
finding and issuing direction for consideration for
 5

regularization of services of the petitioner in the respondent

Minority School.
Arguments on behalf of the Respondent Minority School
8. Learned counsel appearing on behalf of respondent-
minority school also fully supported the argument of the
appellants-State and has also submitted that the name of the
petitioner was neither recommended for regularization nor his
name was recommended for the purposes of appointment
pursuing to the advertisement issued by the school. However,
it is not in dispute that the solitary sanctioned post of Sanskrit
teacher in the school continues to be vacant. The learned
counsel has also submitted that the school has a right to
appoint teacher of their own choice and as per the guidelines
of the State Government by issuing advertisement and the
direction by the learned writ court to absorb/regularize the
writ petitioner has a direct bearing on the right of the
respondent minority school to administer the school by
appointing teachers of their own choice as per the protection
guaranteed under Article 30 of the Constitution of India.
Arguments on behalf of the writ petitioner
9. The learned counsel for the writ petitioner has relied
upon the judgment passed by the Hon’ble Supreme Court
reported in 2019 SCC Online SC 1253 (Chandana Das vs. State
of West Bengal) and submits that initially the matter before the
Hon’ble Supreme Court was placed before a Division Bench
consisting of Hon’ble Mr. Justice T. S. Thakur and Hon’ble
Mrs. Justice R. Banumathi and by virtue of order dated
11.12.2014 both the Hon’ble Judges express their independent
views and accordingly, the matter was placed before three
judges Bench which was decided on 25th September, 2019. The
learned counsel has referred to the view expressed by Hon’ble
Supreme Court in the aforesaid judgment to submit that the
 6

Hon’ble Supreme Court allowed the case and was of the view
that there was no reason as to why the appointments of the
appellants should not be approved with effect from the date of
such vacancies becoming available against which such
appointments could be regularized and a direction was issued
to the respondents to grant approval to the appointment of the
appellants with effect from the date the vacancy became
available for such appointment with consequential reliefs. The
learned counsel submits that in the said case the Hon’ble
Supreme Court considered the fact that it was not in dispute
that the appellants were serving for a considerable length of
time on a meager salary which the minority institution has
been paying to them in the absence of the State Government
recognizing the appointments and releasing grant-in-aid
against their posts and in the said case, it was also not in
dispute that the vacancy on the sanctioned posts fell vacant
subsequent to the appointment of the said appellants.
10. The learned counsel submits that the case of the present
writ petitioner is squarely covered by the aforesaid judgment
of the Hon’ble Supreme Court, inasmuch as, in the present case
also, the writ petitioner was duly appointed by the Managing
Committee of the school and was having the requisite
qualification on the date of his appointment in the year 1996
and continued to work throughout without any complain and
accordingly, as soon as the solitary sanctioned post of Sanskrit
teacher fell vacant, the writ petitioner ought to have been
regularized by the respondents which includes the minority
school as well as the State Government and accordingly, he
submits that the learned single judge has rightly issued
mandamus directing the respondents to consider the case of
the writ petitioner for regularization after having given finding
as mentioned in Para-13 of the impugned judgment.
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11. The learned counsel has also referred to the judgments

passed by the Hon’ble Supreme Court reported in AIR 1989 SC
1607 paras- 14, 15 and 21; (2007) (1) JLJR 161 SC paras-19 and
20 and (2010) 9 SCC 247 para-7. He submits that there is a
distinction between irregular appointment and illegal
appointment and in the present case, the appointment of the
writ petitioner was neither irregular nor illegal and
accordingly, the petitioner ought to have been
regularized/absorbed in the vacancy which arose in the year
2010 relating to sanctioned post.
Findings of this Court
12. This Court finds that undisputed facts on record are that
the writ petitioner (Respondent herein) was appointed in the
respondent-minority school on 13.02.1996 on purely temporary
basis for a period expiring on 12.08.1996 with stipulation that
the extension of service of the writ petitioner will be
considered depending upon his performance. As per the initial
letter of appointment dated 13.02.1996, the writ petitioner was
appointed for teaching Hindi and Sanskrit. The service of the
writ petitioner was extended by the managing committee of
the school for a period of another six months again on purely
temporary basis vide communication dated 13.08.1996 and
again extended till 12.08.1997 on purely temporary basis vide
communication dated 16.03.1997. Thereafter, the writ
petitioner continued to work in the respondent-minority
school, but there is no letter of extension on record. However, a
certificate was issued by the respondent-school as contained in
letter No. 22/10 dated 16.02.2010 certifying that the writ
petitioner has been working in the school on purely temporary
basis right from 13.02.1996 and his services were satisfactory.
13. It was the specific case of the writ petitioner before the
learned writ court that the writ petitioner continued to work in
 8

anticipation that if in future any vacancy in permanent post of

Sanskrit teacher would arise, then his case will be considered
on the ground of long length of service and wide experience in
teaching Sanskrit. Admittedly, the school had only one
sanctioned post of Sanskrit teacher which fell vacant on or
from 31.01.2010 upon superannuation of the Sanskrit teacher,
namely, Surya Kumar Mandal. Consequently, an
advertisement was issued by the minority school on 01.02.2010
calling for application from suitable candidates for fulfilling
the permanent post of Sanskrit teacher in the school and the
prescribed qualification was that the candidates must possess
experience of (Acharya) from any Board/University. Pursuant
to the advertisement, the writ petitioner made an application
for being considered to be appointed on the post of permanent
Sanskrit teacher and writ petitioner was asked to appear in
written exam as well as in interview vide communication
dated 06.07.2010. It is not in dispute that the respondent
minority school declined to recommend the name of the
petitioner on the ground that the petitioner did not have the
requisite qualification as per the advertisement and this fact is
also reflecting in the representation of the writ petitioner dated
09.08.2010 (as referred to and relied upon by the appellant -
state during the course of arguments).
14. It is the case of the writ petitioner that although the
petitioner was called to appear for written exam and interview,
but the very basis of issuance of advertisement was absolutely
incorrect and illegal as the petitioner should have been
absorbed in the vacant sanctioned post and the petitioner also
has the requisite education qualification and enormous
experience of teaching in the said school. In this background,
the petitioner filed representation, received on 24.07.2010, for
redressal of his grievance and claimed regularization of his
 9

service in the school against the vacant sanctioned post in

Sanskrit. It is further an admitted fact that neither the writ
petitioner was appointed against the sanctioned post of
Sanskrit nor anyone else was appointed pursuant to the
advertisement issued in the year 2010, nor the writ petitioner
was regularized on the post and the post of the Sanskrit
teacher is still lying vacant. Admittedly, the name of the writ
petitioner was never forwarded/recommended by the school
to the Government for regularization or for fresh appointment
pursuant to the said advertisement issued in the year 2010.
Rather the representation of the writ petitioner as referred to
above, clearly indicates that the school had refused to
recommend the case of the writ petitioner for appointment
against the advertisement, though the writ petitioner had
participated in the selection process pursuant to the
advertisement issued in the year 2010. In this background, the
writ petitioner filed the writ petition seeking mandamus upon
the respondents to forthwith adjust the services of the
petitioner against the sanctioned vacant post on Sanskrit
teacher and absorb the writ petitioner as permanent teacher of
Sanskrit in the respondent minority school in the given pay-
scale of the said post and release his entire arrears of salary
with all consequential reliefs.
15. Before the learned single judge, the specific case of the
respondent-school has been recorded in para-5 of the
impugned judgment which indicates that it was submitted by
the respondent-school that there are certain sanctioned posts
for which the Government pays salary and other emoluments
and appointment on such sanctioned post is to be made after
following the procedure as fixed by the Government which
includes adherence to right to appoint and equal opportunity.
Consequently, an advertisement is issued and candidates are
 10

selected in interview by the Selection Committee and the

Managing Committee recommends the name of the selected
candidate to the Government for appointment which is
approved after completing all the formalities and verifying
educational certificates of the successful candidates. It was also
submitted by the respondent school that the petitioner after
having applied for the post pursuant to advertisement was
estopped from challenging the same. A supplementary-
affidavit was also filed by the school controverting the
averments made in the writ petition and it was stated that the
writ petitioner and many other candidates applied for the post
of Assistant Teacher and the writ petitioner was appointed as
Assistant Teacher on temporary basis of daily wages and the
total number of vacant post of Sanskrit teacher was only one. It
was further the specific case of the respondent minority school
that the writ petitioner is a teacher appointed by School
Managing committee on a private basis and has been working
as a Sanskrit teacher in the school from 1996 and the
adjustment was done due to increased number of students in
the school, but the writ petitioner was never appointed against
any valid sanctioned post. It was also brought to the notice of
this Court that the post of Sanskrit teacher in the school fell
vacant from 01.02.2010 and till date it was vacant.
16. This Court finds that the learned writ court found that
the petitioner having requisite qualification has been working
as a teacher in Sanskrit subject since 1996 in the respondent’s
school and after rendering 14 years of service, it would but
natural to legitimately expect for permanent absorption on the
post in question, particularly when the petitioner had the
required qualification having unblemished and uninterrupted
service of 14 years. The learned writ court referred to the
judgment passed by the Hon’ble Supreme Court reported in
 11

(2018) SCC Online SC 771 (Narendra Kumar Tiwari & Others

vs. State of Jharkhand & Others) paras-8, 9 and 11, wherein
certain directions were issued taking into consideration the
judgments passed by the Hon’ble Supreme Court in the case of
Uma Devi (3) and Kesari. The Hon’ble Supreme Court had
held that the intent of the decision of Uma Devi was two-fold,
namely, to prevent irregular or illegal appointments in future
and secondly, to confer a benefit on those who had been
irregularly appointed in the past and it was also observed that
the fact that the State of Jharkhand continued with the
irregular appointments for almost a decade after the decision
in the case of Umadevi (3) and therefore, there was a clear
indication that it believes that it was all right to continue with
irregular appointments, and whenever required, terminate the
services of the irregularly appointed employees on the ground
that they were irregularly appointed and this amounts to
nothing but a form of exploitation of the employees by not
giving them the benefits of regularization and by placing the
sword of Damocles over their head and this is precisely what
Umadevi (3) and Kesari had sought to avoid.
17. The learned writ court also found that Hon’ble Supreme
Court was also of the view that since the State of Jharkhand
came into existence only on 15th November, 2000 and the cut-
off date was fixed as 10th April, 2006 and indefinite
continuation of irregular appointed employees would
perpetuate contrary to the intent of the Constitution Bench and
under such circumstances, the Hon’ble Supreme Court was of
the view that the Regularization Rules must be given a
pragmatic interpretation and the appellants of the said case, if
they have completed 10 years of service on the date of
promulgation of the Regularization Rules, ought to be given
the benefit of the service rendered by them. If they have
 12

completed 10 years of service they should be regularized

unless there is some valid objection to their regularization like
misconduct etc.
18. The learned writ court considered a few more
judgments on the point of regularization and held in para-13
that the case of the petitioner fits into the eligibility condition
for consideration of permanent absorption in view of the fact
that the petitioner has rendered 14 years of service on the date
of advertisement having possessed the requisite qualification
and consequently issued a direction upon the respondents to
consider the case of the petitioner for permanent absorption on
the post in question in the vacant and sanctioned post of
teacher in Sanskrit subject in the respondent’s school within a
reasonable period of four months from the date of
receipt/communication of the copy of the order.
19. Article 30(1) of the Constitution of India reads as
under: -
“Section 30. Right of minorities to establish and
administer educational institutions. (1) All minorities,
whether based on religion or language, shall have the right to
establish and administer educational institutions of their
choice.”
20. It is not in dispute that the respondent-Minority School
in which the writ petitioner has been working is a recognized
minority school governed by Bihar Non-Government
Secondary Schools (Taking over of management and control)
Act 1981 also applicable to the State of Jharkhand (hereinafter
referred to as the Act of 1981).
21. A number of writ petitions were filed before the Hon’ble
Supreme Court under Article 32 of the Constitution of India
challenging the constitutional validity of the aforesaid Act of
1981 on the ground that the provisions of the Act are violative
 13

of Article 30 of the Constitution of India and the provisions of

the aforesaid Act of 1981 were upheld vide judgment reported
in (1988) 1 SCC 206 (All Bihar Christian Schools Association
and Another vs. State of Bihar).
22. The relevant Sections of the said Act of 1981 which fell
for consideration by the Hon’ble Supreme Court are Sections 2,
3 and 18. For the purposes of the present case 18(1), (2) 18(a),
18(b) and 18(j) of the aforesaid Act of 1981 are relevant.
23. Section 18 of the said Act of 1981 has been quoted at para
10 of the aforesaid judgment of All Bihar Christian Schools
Association (supra). The relevant sub-sections and clauses of
Section 18 are quoted as under:
“18. Recognition of minority secondary schools. — (1) The
schools declared a minority school under the provisions of the
Bihar Secondary Education Board Act, 1976 (Bihar Act 25 of
1976) and the Bihar Secondary Education Board (Second
Amendment) Ordinance, 1980 (Bihar Ordinance 82 of 1980)
shall be deemed to have been recognised under the provisions
of this Act.
(2) The State Government may, by notification, recognise as
a minority secondary school, such secondary school which
has been established by a minority community on the basis of
religion or language for the purposes of meeting the
educational requirement and for the protection of culture of
their section and which fulfils the prescribed condition of
recognition.
(3) The minority secondary school accorded recognition
under sub-sections (1) and (2) shall be managed and
controlled under the following provisions:
(a) Every minority secondary school shall have a managing
committee registered under the Societies Registration Act,
1862 and shall have written by-laws regarding its
constitution and function.
(b) According to the prescribed qualification laid down by the
State Government for the teachers of the nationalised
secondary schools and within the number of sanctioned posts,
the managing committee of the minority secondary schools
shall appoint the teacher with the concurrence of the school
service board constituted under Section 10 of this Act.
Provided that while considering the question of giving
approval to appointment of any teacher under this sub-
section the board shall only scrutinise as to whether the
proposed appointment is in accordance with the rules laying
 14

down the qualification and the manner of making

appointment framed by the State Government has been
followed or not, and no more.
(c) There shall be rules regarding the service conditions of
teachers of minority schools based on natural justice and the
prevailing law, a copy of which shall be sent to the State
Government.
(d) ………..
(e) ………...
(f) ………...
(g) …………..
(h) ……………..
(i) …………...
(j) The State Government shall have powers to issue
instructions not inconsistent with the provisions of Articles
29 and 30 of the Constitution for efficient management and
for improving the standard of teaching and it shall be
obligatory for the recognised minority schools to comply with
them.
(k) In the event of violation of this section and the rules made
thereunder and the instructions issued under it, the said
managing committee may make an application within sixty
days of the date of the order to the officer authorised by the
State Government, against the withdrawal of recognition or
withholding or stopping grants and the authorised officer
shall, after hearing the case, take his decision and it shall be
binding.”

24. The point of validity of Section 18 of the aforesaid Act of

1981 has been considered from para 12 onwards of the
aforesaid judgment of All Bihar Christian Schools Association
(supra). While dealing with the issue, the Hon’ble Supreme
Court has also dealt with the scheme of Section 18.
25. It has been held that Section 18(3) lays down conditions
under which a recognised minority secondary school shall be
managed and controlled. These terms and conditions are
specified in clauses (a) to (k). This Section requires a recognised
minority school to comply with the terms and conditions set
out therein and in accordance with rules framed by the
managing committee regulating employment of teachers and
disciplinary matters.
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26. Section 18(3) provides that recognised minority

secondary schools shall be managed and controlled in
accordance with the provisions contained in clauses (a) to (k).It
was urged before the Hon’ble Supreme Court that clauses (a)
to (k) of Section 18(3) make serious inroads into the right of a
minority institution to carry on its administration according to
its own choice and that the terms and conditions prescribed
therein regulate and control the administration of a minority
school, which are violative of Article 30(1) of the Constitution.
27. The Hon’ble Supreme Court in the aforesaid judgment of
All Bihar Christian Schools Association (supra) examined
each of the clauses (a) to (k) in detail to determine the crucial
question, whether any of these clauses violate petitioners’
fundamental right guaranteed to them under Article 30(1) of
the Constitution.
With regards to clause(a) of 18(3) it has been held that
Clause (a) requires a minority secondary school to have
a managing committee registered under the Societies
Registration Act, 1862 and to frame written by-laws
regulating constitution and functions of the managing
committee. The by-laws regarding the constitution of the
managing committee are required to be framed by the
minority institution itself. The State or any other
authority has no power or authority to impose any terms
or conditions for the constitution of the managing
committee. If a society running a minority institution
frames written by-laws providing for the constitution of
managing committee entrusted with the function of
running and administering its school it would ensure
efficient administration. This clause is in the interest of
the minority institution itself, as no outsider is imposed
as a member of the managing committee, there is no
 16

interference with the minorities’ right to administer its

school.
With regards to clause(b) of 18(3) it has been held that
Clause (b) provides for two things, firstly it requires the
managing committee of a minority school to appoint
teachers possessing requisite qualifications as prescribed
by the State Government for appointment of teachers of
other nationalised schools, secondly, the managing
committee is required to make appointment of a teacher
with the concurrence of the School Service Board
constituted under Section 10 of the Act. Proviso to clause
(b) lays down that the School Service Board while
considering the question of granting approval to the
appointment of a teacher, shall ascertain if the
appointment is in accordance with the rules laying down
qualifications, and manner of making appointment
framed by the State Government. The proviso makes it
clear that the School Service Board has no further power
to interfere with the right of Managing Committee of a
minority school in the appointment of a teacher. Under
clause (b), the managing committee is required to make
appointment of a teacher with the concurrence of the
School Service Board. The expression “concurrence”
means approval. Such approval need not be prior
approval, as the clause does not provide for any prior
approval. Object and purpose underlying clause (b) is to
ensure that the teachers appointed in a minority school
should possess requisite qualifications and they are
appointed in accordance with the procedure prescribed
and the appointments are made for the sanctioned
strength. The selection and appointment of teachers is
left to the management of the minority school; there is no
 17

interference with the managerial rights of the institution.

In granting approval, the School Service Board has
limited power. The appointment of qualified teachers in
a minority school is a sine qua non for achieving
educational standard and better administration of the
institution. Clause (b) is regulatory in nature to ensure
educational excellence in the minority school.

With regards to clause(c) of 18(3) it has been held that

Cause (c) is regulatory in nature which requires the
managing committee to frame rules of employment
consistent with principles of natural justice and the
prevailing law. No outside agency is required to frame
rules of employment of teachers instead the management
itself is empowered to frame rules. There is therefore no
element of interference with the management’s right to
administer a minority school.
With regards to Clauses (j) and (k) of 18(3) it has been
held that Clauses (j) and (k) of Section 18(3) confer
power on the State Government to issue instructions
consistent with the provisions of Articles 29 and 30 of the
Constitution for efficient management and for improving
the standard of teaching and a minority school is
required to comply with those instructions. …………
Any rule or instruction issued by the government to
prevent maladministration would be valid. …………...
28. While upholding the constitutional validity of Section
18(3) of the aforesaid Act of 1981, it has been held that Clauses
(a) to (k) of Section 18(3) lay down terms and conditions for
granting recognition to a minority school, and these are
regulatory in nature which seek to secure excellence in
education and efficiency in management of schools. These
provisions do not confer any unguided blanket or veto power
 18

on any outside agency or authority to veto the decision of the

management of the school. Instead, minority’s right to manage
its school in accordance with rules framed by it is fully
preserved. The legislature has taken care to confer a limited
power on the School Service Board for granting approval to
appointment and dismissal of a teacher which are necessary in
the interest of educational need and discipline of the minority
school itself. The terms and conditions applicable to a
recognised minority school do not compel the management of
a minority school to surrender its right of administration;
instead, the management is free to administer its school in
accordance with the rules framed by it. It has also been held in
para 17 of the judgement that the School Service Board is
vested with limited power to see that the person proposed to
be appointed possesses the requisite qualifications prescribed
and that the prescribed method of selection was followed by
the management. The choice of the person for appointment
continues to vest in the managing committee of the minority
school.
29. Thus, the right of the managing committee of a
recognized minority school to appoint a person of their choice
has been held to be a constitutional right under Article 30 of
the Constitution of India and the School Service Board is
vested with limited power to see that the person proposed to
be appointed possesses the requisite qualifications prescribed
and that the prescribed method of selection was followed by
the management. This power has been held to be regulatory in
nature in order to ensure educational excellence in the
minority school and at the same time the right of the managing
committee of a recognized minority school to appoint a person
of their choice as teacher/non-teaching staff has been
preserved in the light of Article 30 of the Constitution of India.
 19

30. In the judgement passed by the Hon’ble Supreme Court

in the case of Sindhi Education Society reported in (2010) 8
SCC 49, the right of minority to choose teachers, who possess
the required eligibility and qualification, has been reiterated in
para 112. This judgement has also been followed by Hon’ble
Mr. Justice T.S Thakur in his judgement reported in (2015) 12
SCC 140 (Chandana Das versus State of West Bengal).
31. The judgement reported in (2015) 12 SCC 140 (Chandana
Das versus State of West Bengal) recorded a difference of
opinion between Hon’ble Mr. Justice T.S Thakur, who allowed
the appeal and Hon’ble Mrs. Justice R. Banumathi who
dismissed the appeal and was referred to a three judges bench.
The three judges bench ultimately upheld the judgement of
Hon’ble Mr. Justice T.S Thakur vide judgement reported in
2019 SCC Online SC 1253(Chandana Das vs. State of West
Bengal). The learned counsel for the respondent teacher has
heavily relied upon the judgement reported in 2019 SCC
Online SC 1253 which has been discussed in details in latter
part of this judgement.
32. This Court finds that the learned writ court while issuing
the aforesaid direction to consider the case of the writ
petitioner for permanent absorption on the vacant and
sanctioned post of teacher in Sanskrit subject has omitted to
consider the fact that in the present case the respondent school
is a minority school enjoying the protection of Articles 29 & 30
of the Constitution of India and has fundamental right to
manage its affairs subject to Articles 29 & 30. This Court
further finds that admittedly in the instant case, the name of
the writ petitioner was never recommended by the
respondent-minority school either for regularization or for
appointment pursuant to advertisement issued in the year 2010
and accordingly, a direction for absorption/regularization of
 20

the writ petitioner in the services of the minority school in the

vacant sanctioned post would amount to giving a complete go
by to the right of the respondent-minority educational
institution to get a person appointed on the basis of
recommendation to be made by the Managing Committee of
the minority school. The learned single judge has ignored the
distinction between a Government School and a Minority
School receiving aid by way of salary to the teachers appointed
against the sanctioned post. This Court is of the considered
view that a direction to absorb/regularize the writ petitioner
would amount to interference in fundamental right of the
minority school to manage their own affairs.
33. So far as the judgment which has been passed by the
Hon’ble Supreme Court reported in (2015) 12 SCC 140
(Chandana Das vs. State of West Bengal) is concerned, the
appellants of the said case were appointed as teachers on
temporary basis and their appointments did not meet the
approval of the District Inspector of Schools, Calcutta,
according to whom any such appointment could be made only
on the recommendations of the School Service Commission
established under the Rules for Management of Recognized
Non-Government Institutions (Aided and Unaided), 1969.
Aggrieved by the order passed by the District Inspector, the
appellants of the said case approached the High Court of
Calcutta in Writ Petitions which were allowed by a learned
Single Judge of the High Court by holding that the Institution
in which the appellants were appointed being a linguistic
minority institution was entitled to select and appoint its
teachers and accordingly, the Single Bench directed the
respondents in the writ petitions to approve the appointment
of the appellants as whole-time teachers with effect from 28-7-
1999 and release the arrears of salary and other service benefits
 21

in their favour. Aggrieved by the judgment and order of the

learned Single Judge, the State of West Bengal preferred an
appeal and the Division Bench of the High Court was of the
view that since the Institution in which the appellants were
appointed was a recognized aided Institution, the management
of the Institution was bound to follow the mandate of Rule 28
of the Rules which permitted appointments against a
permanent post only if the candidate was recommended for
any such appointment by the School Service Commission. The
Division Bench further held that the appellants having been
appointed beyond the sanctioned staff strength at the relevant
point of time and dehors the Rules could not claim any
approval in their favour. The Division Bench also held that
since the Institution had not made any claim to its being a
minority institution it was not open to the employee writ
petitioners to claim any such status on its behalf and the
Division Bench further took the view that once a minority
community applies for a special constitution under sub-rule
(iii) of Rule 8 of the said Rules, it represents to the State
Government that it was not claiming the status of a minority
institution. The Division Bench was of the view that the Single
Bench had, therefore, fallen in error in holding that the
Institution where the appellants worked was a minority
institution or that the appointment made by such an Institution
would not be regulated by Rule 28 of the Rules.
34. In the aforesaid background, the short question which
fell for consideration before the Hon’ble Supreme Court was
whether the Institution's right to select and appoint teachers
is in any way affected by the provisions of the Rules of
Management of Recognized Non-Government Institutions
(Aided and Unaided), 1969 framed under the provisions of the
West Bengal Board of Secondary Education Act, 1963?
 22

35. Hon’ble Mr. Justice T. S. Thakur in his judgment held

that a simple reading of the rules showed that a special
constitution is not envisaged for any particular class of
institutes and such special constitution can be approved on the
application of any institution or class of institutions and it was
immaterial whether the institution is a minority institution or
otherwise and accordingly, the argument that the approval of a
special institution by itself was indicative of the institution
giving up its claim of being a minority institution was rejected.
The Hon’ble Judge was of the view that once the institute is
recognized as a minority institution, its minority status would
entitle the managing committee of the institution to make
appointment of teachers against vacancies within its
sanctioned strength and the power to make such appointment
is enjoyed by the institutes by reason of the constitutional
protection with such institution enjoys. It was also observed
that linguistic and religious institutions are entitled to establish
and administer their own institutions and such right to
administer includes the rights of appointing teachers of their
own choice, but does not denude the State of its power to
frame regulations that may prescribed the condition of
eligibility for appointment of such teachers. The regulations
can also prescribe measures to ensure that their institutions are
run efficiently for the right to administer does not include right
to maladministration. The Hon’ble Judge held that once the
respondent-institution was held to be a minority institution
entitled to protection under Articles 29 & 30 of the Constitution
of India, the right to appoint teachers of its own choice, subject
to satisfying the condition of eligibility prescribed for such
appointments under the relevant rules, is implicit in their right
to administer such institutions and such right cannot be
diluted by the State or its functionaries by insisting that the
 23

appointment should be made only with the approval of the

director or by following the mechanism generally prescribed
for institutions that do not enjoy the minority status. The
Hon’ble Court further held that the view taken by the Division
Bench of the High Court that appointments of the appellants
were dehors the rules, in as much as, they were not made by the
School Service Commission hence did not qualify for approval,
did not appear to be sound. The other question considered
regarding the matter of approval of such appointments, was
the absence of a sanctioned post as on the date when the
appointments were made. The Hon’ble judge was of the view
that there was no reason why the appointment of the
appellants should not be approved with effect from the date of
such vacancies becoming available against which such
appointments could be regularised. In the result the appeal
was allowed by the Hon’ble Judge and the order of the
division bench of the High Court was set aside and the writ
petitions were allowed with a direction to the respondents to
grant approval to the appointment of the appellants with effect
from the date vacancies became available for such
appointments with consequential reliefs.
36. Hon’ble Mrs. Justice R. Banumathi, in her dissenting
judgment was of the view that merely because an educational
institution is established by a religious or linguistic minority, it
does not automatically become a minority institution for the
purposes of claiming right of administration and for getting
grant-in-aid. The educational institution concerned so
established by the religious or linguistic minority must be
recognised or granted the status of minority institution by the
competent authorities. According to the official respondents,
minority status was never granted to the respondent school
and only special constitution of management was granted to
 24

the school. The Hon’ble Judge was of the view that as the
respondent school was never declared to be a minority
institution by the competent authorities, the judgment in
T.M.A. Pai Foundation case is not applicable to the respondent
school and in absence of any order by the competent authority,
the respondent school was bound by the mandate contained in
the Rules for Management of Recognised Non-Government
Institutions (Aided and Unaided), 1969. The Hon’ble Judge
held that the respondent school being a recognised aided
institution was bound by the Rules for Management of
Recognised Non-Government Institutions (Aided and
Unaided) 1969 and having accepted the special constitution in
terms of Rule 8(3), the respondent school cannot turn round
and contend that it was a minority institution as per the special
rules framed in terms of Rule 33. The Hon’ble judge held that a
reading of Rule 8(3) clearly showed that the institution having
special constitution cannot have a managing committee of its
own, but the Managing Committee should be in terms of Rule
8(3) of the Rules which indicated that the right of the
institution to have the Managing Committee was curtailed. The
right of the minorities is to establish and to administer
educational institutions of their choice and the moment the
said right was abridged, the choice no longer remained a
choice. The Hon’ble judge was of the view that the Division
Bench of the Calcutta High Court had rightly held that Rule
8(3) of the Rules amounts to an imposition abridging the
fundamental right and therefore a special constitution
permitted under Rule 8(3) cannot be in relation to minority
community institutions and therefore having accepted the
special constitution in terms of Rule 8(3) of the Rules, the
respondent school could not contend that it was a minority
institution governed by the special rules framed by the State
 25

under Rule 33 of the Rules. When the respondent school had

accepted the special constitution and had not claimed to be a
minority institution, the appellants who were merely
employees of such an institution, could not contend that the
institution was a minority institution entitled to appoint its
own teachers. It was held by the Hon’ble Judge that since the
appellants were appointed dehors the provisions contained in
Rule 28 of the Rules, the High Court rightly held that their
appointment was in contravention of the Rules and beyond the
sanctioned strength at the relevant time and no direction could
be issued for approval of their appointment. The impugned
order of the Division Bench of the High Court was upheld and
the appeals were dismissed.
37. In view of the divergence of opinion in terms of separate
judgments the appeal was directed to be assigned to a three-
Judge Bench. The judgement was ultimately passed by the
three judges’ bench of the Hon’ble Supreme Court reported in
2019 SCC Online SC 1253 and the view expressed by Hon’ble
Justice T.S. Thakur was held to be the correct view.
38. In the judgement passed by the three judges bench
reported in 2019 SCC Online SC 1253 the Hon’ble Supreme
Court recorded that the main grounds for disagreement
between the two Hon’ble Judges were two. In paragraphs 36 to
40, the learned Judge found that in the absence of any order by
the competent authority under the West Bengal Board of
Secondary Education Act granting minority status to the
Respondent No.4 school, the said school cannot claim to be a
minority institution for the purpose of Article 30 and is,
therefore, bound, being an aided institution, by the 1969 Rules,
in particular Rule 28 thereof. The other plank of the decision
was contained in paragraphs 43 and 51, stating that the school
having accepted the special constitution in terms of Rule 8(3) of
 26

the Rules, the school is estopped from contending that it is a

minority institution governed by special rules to be framed by
the State under Rule 33 of the Rules.
39. It was held that there was no manner of doubt that if
Respondent school was a minority institution, Rule 28 of the
Rules for Management of Recognized Non-Government
Institutions (Aided and Unaided) 1969, cannot apply as there
would be a serious infraction of the right of Respondent
minority school to administer the institution with teachers of
its choice. The Hon’ble Supreme Court held that the competent
authorities set up by the Act of West Bengal involved in the
said case did not have any power to recognise a minority
institution. The Hon’ble Supreme Court in the facts of the case
ultimately held that it cannot be said that Respondent school
was, in any manner, estopped from claiming its minority status
and it is settled law that the fundamental right under Article 30
cannot be waived. It was held that the judgment of Thakur, J. is
correct in law. Consequently, the judgment and order of the
learned Single Judge of the Calcutta High Court was held to be
correct, and the judgement of the Division Bench of the
Calcutta High Court was set aside and appeals were allowed.
40. The learned counsel for the writ petitioner has heavily
relied upon the aforesaid judgment reported in 2019 SCC
Online SC 1253 (supra). It has been submitted that the view of
Hon’ble Mr. Justice T. S. Thakur, as expressed in his judgment
reported in (2015) 12 SCC 140 were upheld and the point as to
whether approval of appointments made by minority school in
absence of a sanctioned post as on the date of appointment of
teachers was also considered and the Hon’ble Judge was of the
view that there was no reason why the appointment of
teachers should not be approved with effect from the date of
such vacancies becoming available against which such
 27

appointments could be regularized and consequently a

direction was issued to the respondents of the case to grant
approval to the appointment of teachers with effect from the
date vacancies became available for such appointments with
consequential reliefs. It has been submitted that the case of the
present writ petitioner is fully covered by the aforesaid
judgement.
41. The learned counsel for the writ petitioner in the present
case has submitted that in this case also, at the time of
appointment, the petitioner was not appointed against
sanctioned post as there was no available sanctioned post at
that point of time, but subsequently when the post became
vacant consequent to retirement of the concerned teacher, the
writ petitioner was required to be regularized and accordingly,
it has been vehemently submitted that the learned writ court
has rightly directed for absorption/regularization of the
services of the writ petitioner who had worked as Sanskrit
teacher in the school for more than 14 years.
42. This Court finds that there is a marked distinction
between the facts involved in the aforesaid judgment heavily
relied upon by the writ petitioner, reported in 2019 SCC Online
SC 1253 (supra), and the facts of the present case. In the case
before Hon’ble Supreme Court, the recommendation for
appointment of the teachers as per the choice of Minority
institution was made by them, but the State Authorities had
refused to approve their appointments on the ground that the
appointments were not made upon recommendation of the
School Service Commission as per the rules applicable in the
State of West Bengal. Thus, apparently in the said case, the
Managing Committee of the minority school was supporting
the teachers who were recommended by the school.
 28

In the present case, admittedly the respondent-minority school

never recommended for appointment of the writ petitioner as a
teacher against vacant sanctioned post for Sanskrit, although
the writ petitioner had participated in the selection process
pursuant to the advertisement issued for the purpose and it is
not in dispute that the writ petitioner has been working in the
respondent-minority school much prior to the date of
advertisement and at the time of initial appointment of the writ
petitioner, the sanctioned post was not vacant.
In view of the ratio of the judgment passed by the Hon’ble
Supreme Court in the aforesaid case, the law is well-settled
that once the institute is recognized as a minority institution,
its minority status would entitle the managing committee of
the institution to make appointment of teachers against the
vacancies subject to satisfying the condition of eligibility
prescribed for such appointments under the relevant
provision. This Court also finds that the respondent-minority
school has fully supported the appellants (State authorities) in
the instant case as the respondent minority school had refused
to recommend the name of the writ petitioner for appointment
against the vacant sanctioned post after the writ petitioner had
participated in the selection process pursuant to the
advertisement. The aforesaid distinction of the present case on
facts as compared to the case decided by the Hon’ble Supreme
Court has an important bearing on the constitutional rights of
the respondent minority school to appoint teachers of their
own choice subject to the regulatory provisions of the aforesaid
Act of 1981.
43. It has been submitted by the writ petitioner that the
initial appointment of the writ petitioner, though not against
any sanctioned post, was neither irregular nor illegal and
accordingly, the petitioner ought to have been
 29

regularized/absorbed in the vacancy which arose in the year

2010 relating to sanctioned post. There is no dispute that the
initial appointment of the writ petitioner was neither illegal
nor irregular. This Court is of the considered view that the said
fact by itself is not sufficient to issue mandamus for
regularization/ absorption of the writ petitioner when the
respondent minority school has refused to recommend the
name of the writ petitioner as a result of the selection process
pursuant to the advertisement for the purpose of appointment
on the vacant sanctioned post. Such direction has direct
bearing on the constitutional right of the respondent minority
school to appoint teachers of their own choice subject to
regulatory provisions of aforesaid Act of 1981 which
admittedly governs the respondent school.
44. This Court is of the considered view that the direction
issued by the learned writ court upon the Respondents to
absorb/regularize the services of the writ petitioner and
absorb his services against vacant sanctioned post of Sanskrit
teacher, in spite of his name having been rejected by the
Managing Committee of the respondent-minority school in the
selection process through advertisement, has a serious bearing
upon the right of the respondent Minority School to appoint
teachers of their choice subject to the regulatory provisions
contained in the aforesaid Act of 1981. The impugned direction
of the writ court will amount to denial of the right conferred
under Article 30 of the Constitution of India upon the
respondent minority school to administer the minority
institution and amounts to curtailment of the right of the
respondent minority school to appoint teachers of their choice
through appropriate selection process amongst those who
possess the eligibility and qualification prescribed. The
direction issued by the learned writ court has the effect of
 30

imposing the writ petitioner and compelling the respondent

minority school to appoint the writ petitioner and
consequently regularise/absorb his services which is beyond
the regulatory provision as prescribed under the aforesaid Act
of 1981 and was subject matter of consideration before the
Hon’ble Supreme Court in the judgment of All Bihar Christian
Schools Association (supra), wherein with regard to clause (b)
of Section 18(3) of the aforesaid Act of 1981 , it has been held as
under:-
“With regards to clause(b) of 18(3) it has been held that
Clause (b) provides for two things, firstly it requires the
managing committee of a minority school to appoint
teachers possessing requisite qualifications as prescribed
by the State Government for appointment of teachers of
other nationalised schools, secondly, the managing
committee is required to make appointment of a teacher
with the concurrence of the School Service Board
constituted under Section 10 of the Act. Proviso to clause
(b) lays down that the School Service Board while
considering the question of granting approval to the
appointment of a teacher, shall ascertain if the
appointment is in accordance with the rules laying down
qualifications, and manner of making appointment
framed by the State Government. The proviso makes it
clear that the School Service Board has no further power
to interfere with the right of Managing Committee of a
minority school in the appointment of a teacher. Under
clause (b), the managing committee is required to make
appointment of a teacher with the concurrence of the
School Service Board. The expression “concurrence”
means approval. Such approval need not be prior
approval, as the clause does not provide for any prior
 31

approval. Object and purpose underlying clause (b) is to

ensure that the teachers appointed in a minority school
should possess requisite qualifications and they are
appointed in accordance with the procedure prescribed
and the appointments are made for the sanctioned
strength. The selection and appointment of teachers is
left to the management of the minority school; there is no
interference with the managerial rights of the institution.
In granting approval, the School Service Board has
limited power. The appointment of qualified teachers in
a minority school is a sine qua non for achieving
educational standard and better administration of the
institution. Clause (b) is regulatory in nature to ensure
educational excellence in the minority school.”
45. In view of the aforesaid facts and circumstances of the
present case which are remarkably different from the facts of
the judgment heavily relied upon by the writ petitioner
reported in 2019 SCC Online SC 1253 (Chandana Das versus
State of west Bengal), the judgement of Chandana Das does
not apply to the facts and circumstances of this case.
46. As a cumulative effect of the aforesaid findings, the
judgment passed by the learned writ court cannot be sustained
in the eyes of law and is accordingly set-aside. Consequently,
the present appeal is hereby allowed.
47. Pending interlocutory applications are closed.

(Aparesh Kumar Singh, J.)

(Anubha Rawat Choudhary, J.)

Mukul