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CASE NO.:

Writ Petition (civil) 9683-84 of 1983

PETITIONER:

Brahmo Samaj Education Society & Ors.

RESPONDENT:

State of West Bengal & Ors.

DATE OF JUDGMENT: 05/05/2004

BENCH:

CJI & G.P. MATHUR.

JUDGMENT:

J U D G M E N T

RAJENDRA BABU, CJI. :

Role of State in the appointment of a teacher at a

State aided educational institution is the matter for

settlement here.

Facts that lead to the present case are as follows.

The State of West Bengal passed the West Bengal

College Teachers (Security of Service) Act, 1975 (the

Security of Service Act) and West Bengal College Service

Commission Act, 1978 (the College Service Commission

Act). Latter mainly provides for the constitution of a

College Service Commission in West Bengal. Vide section

7 of the College Service Commission Act, the Commission

is vested with the duty to select persons for appointment

to the post of teachers of a college. By virtue of which,

the power of appointment of a teacher in a college or

institution affiliated to a University in West Bengal

became vested in the Government appointed College

Service Commission. Pursuant to the College Service

Commission Act, the West Bengal College Service

Commission (Manner of Selection of Persons for

Appointment to the posts of Teachers including Principals)

Regulations, 1980 was also made. Appointments of

teachers were made under this scheme thereafter.

Brahmo Samaj Education Society / Petitioners

challenge this procedure of appointing teachers.

Petitioners case is that they are a religious minority and a

religious denomination within the meaning of Articles 25,

26, and 30(1) of the Constitution; that the appointment

of teachers by the College Service Commission under the

College Service Commission Act and other Orders/Rules

is unconstitutional; that they alone have the right to

appoint teachers and enforce discipline amongst them;

that therefore they prayed to prohibit the State of West

Bengal / Respondents from enforcing the Security of

Service Act and the College Service Commission Act.

Stand maintained by the Respondents is that the

Petitioner society does not belong to a minority religious

community; that the Institutions run by them are

receiving funds from the state coffers and the State is

under an obligation to maintain a uniform standard of

education throughout the State; that the Petitioner's

demand not to abide by the recommendation of an

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independent statutory authority (College Service

Commission) would amount to denying opportunity of

appointment to the best available qualified persons as

teachers; that therefore they prayed to dismiss the

Petition.

The main question for consideration is - whether the

appointment of teachers through the selection of College

Service Commission is permissible or not, in other

words, to decipher the role of State in the matter of

appointment of teachers. To establish and administer an

educational institution is held to be a right coming under

Article 19(1)(g) of the Constitution as enunciated in T M A

Pai Foundation v. State of Karnataka (2002) 8 SCC 481

[at pages 533 \026 535, paragraphs 18 \026 25]. According to

Article 19(6) of the Constitution, the right to establish

and maintain an educational institution is subject to the

reasonable restrictions imposed by the State in the

interest of general public. At the same time, subject to

public order, morality and health, every religious

denomination or any section thereof can establish and

maintain educational institutions under Article 26(a) of

the Constitution. (See T M A Pai \026 cited supra at page

535, paragraph 26). Reading Articles 19(1)(g) and

Article 26(a) of the Constitution together, the petitioners

have a right to establish and maintain educational

institutions and hence we do not think it is necessary to

decide the issue of minority / denominational status of

Brahmo Samaj to decide the issue in hand. In our view

this issue does not arise in the context of present case.

The question now before us is to decide whether the

appointment of teachers in an aided institution by the

College Service Commission by restricting the Petitioner's

right to appointment is a reasonable restriction in the

interest of general public or not. The Petitioner has a

right to establish and administer educational institution.

Merely because the petitioners are receiving aid, their

autonomy of administration cannot be totally restricted

and institutions cannot be treated as a government

owned one. Of course the State can impose such

conditions as are necessary for the proper maintenance

of standards of education and to check

maladministration. It is stated in T M A Pai that :

"While giving aid to professional institutions, it

would be permissible for the authority giving

aid to prescribe by rules or regulations, the

conditions on the basis of which admission will

be granted to different aided colleges by virtue

of merit, coupled with the reservation policy of

the State. The merit may be determined

either through a common entrance test

conducted by the university or the Government

followed by counselling, or on the basis of an

entrance test conducted by individual

institutions \026 the method to be followed is for

the university or the Government to decide.

The authority may also devise other means to

ensure that admission is granted to an aided

professional institution on the basis of merit.

In the case of such institutions, it will be

permissible for the Government or the

university to provide that consideration should

be shown to the weaker sections of the

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society."

[at p. 550, para 71]

"Once aid is granted to a private professional

educational institution, the Government or the

State agency, as a condition of the grant of

aid, can put fetters on the freedom in the

matter of administration and management of

the institution. The State, which gives aid to

an educational institution, can impose such

conditions as are necessary for the proper

maintenance of the high standards of

education as the financial burden is shared by

the State. The State would also be under an

obligation to protect the interest of the

teaching and non-teaching staff. In many

States, there are various statutory provisions

to regulate the functioning of such educational

institutions where the States give, as a grant

or aid, a substantial proportion of the revenue

expenditure including salary, pay and

allowances of teaching and non-teaching staff.

It would be its responsibility to ensure that the

teachers working in those institutions are

governed by proper service conditions. The

State, in the case of such aided institutions,

has ample power to regulate the method of

selection and appointment of teachers after

prescribing requisite qualifications for the

same. Ever since, in Re. Kerala Education

Bill, 1957 [1959 SCR 995] this Court has

upheld, in the case of aided institutions, those

regulations that served the interests of

students and teachers. Checks on the

administration may be necessary in order to

ensure that the administration is efficient and

sound and will serve the academic needs of the

institutions. In other words, rules and

regulations that promote good administration

and prevent maladministration can be

formulated so as to promote the efficiency of

teachers, discipline and fairness in

administration and to preserve harmony

among affiliated institutions. At the same

time it has to be ensured that even an aided

institution does not become a government-

owned and controlled institution. Normally,

the aid that is granted is relatable to the pay

and allowances of the teaching staff. In

addition, the management of the private aided

institutions has to incur revenue and capital

expenses. Such aided institutions cannot

obtain that extent of autonomy in relation to

management and administration as would be

available to a private unaided institution, but

at the same time, it cannot also be treated as

an educational institution departmentally run

by Government or as a wholly owned and

controlled government institution and interfere

with constitution of the governing bodies or

thrusting the staff without reference to

management."

[pp. 550, 551, para 72]

"There are a large number of educational

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institutions, like schools and non-professional

colleges, which cannot operate without the

support or aid from the State. Although these

institutions may have been established by

philanthropists or other public-spirited persons,

it becomes necessary, in order to provide

inexpensive education to the students, to seek

aid from the State. In such cases, as those of

the professional aided institutions referred to

hereinabove, the Government would be

entitled to make regulations relating to the

terms and conditions of employment of the

teaching and non-teaching staff whenever the

aid for the posts is given by the State as well

as admission procedures. Such rules and

regulations can also provide for the reasons

and the manner in which a teacher or any

other member of the staff can be removed. In

other words, the autonomy of a private aided

institution would be less than that of an

unaided institution.

[p 551, para 73]

But that control cannot extend to the day-to-day

administration of the institution. It is categorically stated

in T M A Pai (cited supra at page 551, paragraph 72)

that the State can regulate the method of selection and

appointment of teachers after prescribing requisite

qualification for the same. Independence for the selection

of teachers among the qualified candidates is

fundamental to the maintenance of the academic and

administrative autonomy of an aided institution. The

State can very well provide the basic qualification for

teachers. Under the University Grants Commission Act,

1956, the University Grants Commission (UGC) has laid

down qualifications to a teaching post in a University by

passing Regulations. As per this Regulations UGC

conducts National Educational Testing (NET) for

determining teaching eligibility of candidates. UGC has

also authorized accredited States to conduct State Level

Eligibility Test (SLET). Only a person who has qualified

NET or SLET will be eligible for appointment as a teacher

in an aided institution. This is the required basic

qualification of a teacher. Petitioner's right to administer

includes the right to appoint teachers of its choice among

the NET / SLET qualified candidates.

Argument on behalf of the State that the

appointment through College Service Commission is to

maintain the equal standard of education all through out

the state of West Bengal does not impress us. The equal

standard of teachers are already maintained by the NET /

SLET. Similarly, receiving aid from State coffers can also

not be treated as a justification for imposition of any

restrictions that cannot be imposed otherwise.

Both sides rely on the passages quoted above from

the judgment in T M A Pai to project their respective

contentions.

When a larger Bench consisting of 11 Judges of this

Court in T M A Pai has declared what the law on the

matter is, we do not want to dilute the effect of the same

by analysing various statements made therein or indulge

in any dissection of the principles underlying it. We

would rather state that the State Government shall take

note of the declarations of law made by this Court in this

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regard and make suitable amendments to their laws,

rules and regulations to bring them in conformity with the

principles set out therein.

In this view of the matter, it is unnecessary to

examine whether the present rules are valid or not. Until

such time as such rules are framed in terms of the order

made by us now, the interim orders made by this Court

in these proceedings will be operative.

These petitions shall stand allowed in terms of what

is stated above.