'No Absolute Right Of Appointment For Minority Educational Institutions' : SC Upholds WB Madrasah Service Commission Act [Read Judgment]

The Supreme Court has upheld the constitutionality of West Bengal Madrasah Service Commission Act 2008 observing that there is no absolute and unqualified right of appointment for minority educational institutions.

A bench of Justices Arun Mishra and U U Lalit delivered the verdict on Monday in the case SK Md Raffique v Managing Committee, Contai Rehmania High Madrasah and others.

The case concerned the validity of West Bengal Madrasah Service Commission Act 2008, which constituted a commission to appoint teachers in madrasas.

Calcutta HC Judgment

On petitions filed by managing committees of various madrasas, the Calcutta High Court in 2015 had declared the Act ultra vires Article 30 of the Constitution, which deals with the right of minorities to establish and administer educational institutions. The High court had agreed with the contention that the provisions of the Commission Act transgressed upon the rights of a minority institution of choosing its own teachers.

Issue: Whether Provisions of Act Violate Article 30?

Challenging the HC verdict, appeals were filed in Supreme Court by few teachers, who had got appointment under the Act. The issue considered by the Apex Court bench was whether the provisions, Sections 8, 10, 11 and 12 of the Commission Act are ultra vires and whether these provisions transgress the right of minority institutions guaranteed under the Constitution of India?

Judgments on issue discussed

The judgment by Justice UU Lalit elaborately discusses the Supreme Court decisions up to TMA Pai Foundation case. It also explains the decision in TMA Pai Foundation and those thereafter. Pages 31 to 127 of the judgment exclusively deals with discussion. Summarizing TMA Pai judgmnent, the bench observed:

"Out of five incidents which constitute "the right to establish and administer" an educational institution as noted in para 50 of the leading judgment in TMA Pai Foundation , the right to admit students has not been considered to be an absolute and an unqualified right. The decision in P.A. Inamdar shows that in professional educational institutions or those imparting higher education, merit based selection has been taken to be in the interest of the nation and subserving and strengthening the national welfare. Selection of meritorious students has been accepted to be in the national interest. A minority institution cannot in the name of right under Article 30(1) of the Constitution, disregard merit or merit-based selection of students as regards professional and higher education. The right to take disciplinary action against the staff has also not been accepted to be an unqualified right. TMA Pai Foundation itself lays down that even in an unaided minority educational institution, a mechanism must be evolved and appropriate Tribunal must be constituted to consider the grievances and till then the Tribunals could be presided over by a judicial officer of the rank of a District Judge. To that extent, there was a definite departure from the law laid down in Ahmedabad St. Xavier's College case which had struck down Sections 51-A and 52-A of the Gujrat University Act, 1949." 

Importantly, the bench observed that when it comes to the right to appoint teachers a regulation framed in the national interest must necessarily apply to all institutions regardless whether they are run by majority or minority as the essence of Article 30(1) is to ensure equal treatment between the majority and minority institutions. It added thus:

"An objection can certainly be raised if an unfavourable treatment is meted out to an educational institution established and administered by minority. But if ensuring of excellence in educational institutions is the underlying principle behind a regulatory regime and the mechanism of selection of teachers is so designed to achieve excellence in institutions, the matter may stand on a completely different footing."

Secular Education And Religious Education

The test accepted in TMA Pai Foundation, the Court said,, canl be considered in the context of two categories of institutions; one imparting education which is directly aimed at or dealing with preservation and protection of the heritage, culture, script and special characteristics of a religious or a linguistic minority; while the second category of institutions could be those which are imparting what is commonly known as secular education. It said:

When it comes to the institutions in the former category, the teachers who believe in the religious ideology or in the special characteristics of the concerned minority would alone be able to imbibe in the students admitted in such educational institutions, what the minorities would like to preserve, profess and propagate. But, if the subjects in the curriculum are purely secular in character, that, is to say, subjects like Arithmetic, Algebra, Physics, Chemistry or Geography, the intent must be to impart education availing the best possible teachers. In the first category, maximum latitude may be given to the managements of the concerned minority institutions as they would normally be considered to be the best judges of what would help them in protecting and preserving the heritage, culture, script or such special features or characteristics of the concerned minorities. However, when it comes to the second category of institutions, the governing criteria must be to see to it that the most conducive atmosphere is put in place where the institution achieves excellence and imparts best possible education.

No Absolute Right To Appointment

Thereafter, the bench considered the question: if the candidates who are selected and nominated under the regulatory regime to impart education which is purely secular in character, are better qualified, would the minority institution be within its rights to reject such nomination only in the name of exercise of a right of choice?

If the right is taken to be absolute and unqualified, then certainly such choice must be recognised and accepted. But, if the right has not been accepted to be absolute and unqualified and the national interest must always permeate and apply, the excellence and merit must be the governing criteria. Any departure from the concept of merit and excellence would not make a minority educational institution an effective vehicle to achieve what has been contemplated in various decisions of this Court. Further, if merit is not the sole and governing criteria, the minority institutions may lag behind the non-minority institutions rather than keep in step with them.

If the minority institution has a better candidate available than the one nominated under a regulatory regime, the institution would certainly be within its rights to reject the nomination made by the authorities but if the person nominated for imparting education is otherwise better qualified and suitable, any rejection of such nomination by the minority institution would never help such institution in achieving excellence and as such, any such rejection would not be within the true scope of the Right protected under Article 30(1) of the Constitution.

Act Does Not Transgress Minority Rights

Applying the principles laid down in the decision in TMA Pai Foundation case , the bench observed that the provisions of the Act cannot be said to be transgressing the rights of the minority institutions. The selection of the teachers and their nomination by the Commission constituted under the provisions of the Commission Act would satisfy the national interest as well as the interest of the minority educational institutions and said provisions are not violative of the rights of the minority educational institutions, it added.

Civil Appeal: No.5808 of 2017
Case Name: SK. MD. Rafique vs. Managing Committee, contai Rahamania High Madrasah and Others
 

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