IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

[CIRCUIT BENCH AT PORT BLAIR]

PRESENT: THE HON'BLE JUSTICE ARIJIT BANERJEE

WPA/554/2025

MISS ROZALIN TIRKEY … PETITIONER

VS.

NIRMALA SENIOR SECONDARY

SCHOOL AND ANOTHER … RESPONDENTS

For the petitioner : Mr. Gopala Binnu Kumar

For the respondent no.1 : Mr. Lokesh Chezian, N.

For the respondent no.2 : Mr. V. D.Sivabalan

Heard on : February 02, 2026

Delivered on : February 10, 2026

ARIJIT BANERJEE, J.

1. The respondent no.1, before me, is a minority

institution, which enjoys such status under Article 30(1) of

the Constitution of India.

2. Vacancy arose in the school in the post of Post

Graduate Teacher (PGT) (Biology). A paper publication was

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made by the school on July 27, 2023 under the caption

“Notice of Recruitment” to the post of Post Graduate

Teacher (Biology) under the respondent-school. The

essential qualifications for a candidate aspiring to apply

were mentioned in the notice.

3. The petitioner participated in the recruitment process

and emerged successful. The Selection Committee, which

constituted of members of the respondent-school as also a

representative of the Directorate of Education, Andaman

and Nicobar Administration (respondent no.2 herein),

scrutinized the documents of all the applicants. The

Committee unanimously recommended appointment of the

petitioner to the vacant post of Post Graduate Teacher

(Biology).

4. By a letter dated April 15, 2024, the respondent no.2

communicated to the respondent – school that since

approval of the respondent no.2 had not been taken prior to

initiation of the recruitment process for filling up the

vacancy in the post of Post Graduate Teacher (Biology), the

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proposal for appointment of the petitioner to the said post

could not be approved.

5. Subsequently, with the prior approval of the

respondent no.2, the respondent-school again initiated a

recruitment process for filling up the aforesaid vacancy for

the post of Post Graduate Teacher (Biology). Again, the

petitioner participated and was successful. At a Selection

Committee meeting held on March 13, 2025, the

petitioner’s name was unanimously recommended for

appointment to the aforesaid post. The merit list was

published on the same day where the petitioner’s name was

at the top, she having secured 69.24% marks.

6. When the matter was placed before the respondent

no.2 for approving the appointment of the petitioner,

approval was withheld on two grounds. Firstly, it was

stated that the Recruitment Rules of the respondent-school

were not in line with those notified by the Department of

Education through Gazette Publication dated November 05,

2019. The essential qualifications prescribed by the

respondent-school and the Education Department did not

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match. Secondly, the holding of a Demo-Class as part of

the recruitment process, as prescribed by the respondent-

school, is contrary to the Government instructions which

have been done away with interview for Group ‘C’ and Non-

Gazetted Group ‘B’ category and all such equivalent posts.

It was stated that the Demo-class is a form of interview and

therefore inconsistent with Office Memorandum

No.39020/01/2013 dated 29-12-2025 (sic).

7. In response, the respondent-school sent a detailed

representation to the Assistant Director (Admn.-II),

Directorate of Education with a copy to the Director

(Education). In the representation, it was explained in

details as to how the essential qualifications prescribed by

the respondent-school for the concerned post are higher

than and not lesser than the qualifications prescribed in

the Recruitment Rules published by the Directorate of

Education. It was further stated that the Government

instructions by way of Office Memoranda are not binding

on minority institutions. Hence, there was nothing wrong

with having a Demo-class as part of the recruitment

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process. It was also indicated that the extent of

Government control over the Management of the minority

institutions is minimal and limited to prescribing minimum

qualifications for teachers to be recruited with a view to

maintaining the standard of institution. Any further

intervention would amount to infringement of the minority

institution’s right under Article 30(1) of the Constitution of

managing its own affairs in the manner it deems best.

8. After considering such representation, the Assistant

Director (Admn-II), Directorate of Education, issued the

following communication dated September 16, 2025,

addressed to the Manager of the respondent-school.

“I am directed to refer your letter on the subject cited above and

to convey that all the document made available pertaining to

recruitment of 01 Post Graduate Teacher(Biology) and the reply

of Manager, Nirmala Senior Secondary school, Sri Vijaya Puram

has been examined by the Directorate of Education and the

shortfalls/deviation which has been observed are as below:-

1- The Essential Educational Qualification in the RR of Minority

Aided school has to be in line with the RR of the Directorate

of Education (In Annexure-III, clause-2). The school has

affirmed and informed that their RR contains all essential

qualification at par with the Directorate of Education. This

has not been complied in the instant case.

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2- Being funded by the Government, the minority aided school

is bound to comply the instructions of the Government of

India (excluding those that provide any form of reservation).

3- In view of the aforementioned shortfalls/deviations, the

proposal for appointing One (01) Post Graduate

Teacher(Biology) at Nirmala Sr. Sec. School, Prem Nagar, Sri

Vijaya Puram, cannot be considered as of now.”

9. Being aggrieved, the petitioner is before this Court

challenging the said communication dated September 16,

2025.

10. Learned advocate for the petitioner vociferously

argued that the respondent no.2 has failed to appreciate

the limits of the Government’s power to interfere with the

internal affairs of a minority institution including the

matter of recruitment of teachers. The respondent-school

has framed essential qualifications for the concerned post,

keeping in mind the qualifications prescribed by the

Government. In fact, the qualifications prescribed by the

School are of higher standard. The only constraint is that

the qualifications stipulated by the minority institution

cannot be lower than those recommended by the

Government.

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11. Learned counsel further argued that the Government

instructions in the form of Office Memoranda are not

binding on the minority schools, aided or unaided. Further,

no prior permission or approval of the Department of

Education is necessary for initiating recruitment process in

a minority institution.

12. An aided minority school shall have freedom towards

managing its internal affairs. The State can, however,

prescribed the minimum qualification of a candidate for

being appointed as teacher to ensure minimum standard.

Excellence and merits must be the governing criteria for

appointment of teachers. In this context, learned advocate

for the petitioner relied on the following decisions:

(a) TMA Pai Foundation and Others vs. State of Karnataka and

Others, AIR 2003 SC 355.

(b) SK Mohd. Rafique vs. Managing Committee Contai

Rahmania High Madrasah and others, (2020) 6 SCC 689

(Paragraph 50 to 53).

(c) Sindhi Education Society and Another vs. Chief Secretary,

Government of NCT of Delhi and others (2010) 8 SCC 49 (

Paragraph nos.112, 119, 120).

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(d) Delhi Tamil Education Association vs. Director of Education

and others, High Court of New Delhi, W.P.(C) 15276/2023

and CM APPlL.61207/2023, decided on 28.05.2024

(Paragraph nos.49,4.1 and 49.4.2 (page No.767 and 77

13. Referring to his notes of arguments filed in Court,

learned advocate for the respondent no.2 primarily

submitted that the respondent-school is bound to follow

the Recruitment Rules of the Directorate of Education in

terms of essential qualifications of teachers. The

respondent –school is bound to ensure that the essential

qualifications stipulated in its vacancy notice should be

similar to the provisions in the notified Recruitment Rules.

14. He submitted that the Recruitment Rules for Post

Graduate Teacher (Biology) notified by the Directorate of

Education through gazette publication bearing

No.280/2019 dated 05.11.2019 stipulates that a candidate

“should have studied in the concerned medium at

Secondary/Senior Secondary level”. However, the essential

qualifications published by the respondent-school, in its

vacancy notice for the post of Post Graduate Teacher

(Biology) says that a candidate “should have studied in

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English Medium from at the Secondary Level/Sr.Secondary

/Degree level”.

15. Learned counsel further submitted that there is also

variance as regards Hindi language candidates. Whereas

the Department of Education Rules stipulates that Hindi

language candidates may also be considered if their

command over the English language is exceptionally good,

the respondent-school’s vacancy notice additionally

requires that such a candidate should have studied in

English medium upto degree level.

16. Learned advocate then referred to the Guidelines for

determination of Minority Status, Recognition, Affiliation

and related matters in respect of Minority Educational

Institutions under the Constitution of India, published by

the National Commission for Minority Educational

Institutions and submitted that the said guidelines provide

that once a Teacher/ Lecturer/ Headmaster/ Principal

possessing the requisite qualifications prescribed by the

State or the University has been selected by the

management of the minority educational institution by

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adopting any rational procedure of selection, the State

Government or the University would have no right to veto

the selection of those teachers etc.

17. Referring to the decision in T.M.A Pai Foundation

and others vs. State of Karnataka and others (supra) ,

learned advocate submitted that the Minority institutions

have the freedom to choose their teachers and staff, as the

quality and character of an institution depends largely on

its personnel. However that right is not absolute. The State

may prescribe reasonable regulations to ensure minimum

qualifications, eligibility criteria, and service conditions

ensuring academic excellence and fairness. However, such

regulations must not take away the management’s final

control over appointments. Any prescription by the State

must be limited, non-arbitrary and only for ensuring

minimum standards and cannot amount to control over the

core management of a minority institution.

18. Learned advocate then referred to the Madras High

Court decision in the case of the Secretary, Loyola

College (Autonomous) vs. State of Tamil Nadu, in W.P.

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No. 19271 of 2023 delivered on March 27, 2025, and

submitted that while the State has limited regulatory power

over minority educational institutions, such power is

restricted primarily to the prescription of minimum

qualifications and standards to ensure academic excellence

and compliance with affiliating university norms. The State

cannot interfere with the process or manner of recruitment,

including selection methodology or constitution of selection

committees, as these fall within the protected right of

administration of minority institutions under Article 30 (1)

of the Constitution of India.

19. Then, he drew my attention to the decision of the

Delhi High Court in the case of Delhi Tamil Education

Association vs. Director of Education and others in

W.P. (C) 15276/2023 and CM APPL. 61207/2023

delivered on May 28, 2024, wherein the Court examined

the scope of the regulatory authority of the Directorate of

Education, Government of NCT of Delhi, in relation to

minority institutions protected under Article 30(1) of the

Constitution of India. The Court held that such regulatory

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powers of the State in respect of minority educational

institutions are confined to ensuring maintenance of

academic standards and excellence, must be minimal, non-

intrusive and non-controlling in nature. The Court

emphasized that the extent of regulation by the Directorate

of Education is limited to prescribing minimum

qualifications and experience of teachers and staff, and that

the State or its authorities cannot interfere with the

selection process, methodology, constitution of selection

committees, or final choice of candidates made by the

minority management, once it is established that the

selected candidate fulfills the minimum qualifications

prescribed by the competent statutory authority.

20. My attention was then drawn to the decision of the

Hon’ble Supreme Court in the case of Ahmedabad

St.Xavier’s College Society and another vs. State of

Gujarat and another reported in (1974) 1 SCC 177. The

Hon’ble Court held that the right of a minority institution to

administer its affairs including the autonomy to select and

appoint its Principal and teaching staff is subject only to

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the appointees possessing the minimum qualifications

prescribed by the competent statutory authorities and any

interference by the State in such choice amounts to an

infringement of the fundamental right guaranteed under

Article 30(1) of the Constitution.

21. My attention was also drawn to the decision of the

Hon’ble Supreme Court in Secretary, Malankara Syrian

Catholic College vs. T.Jose reported in 2007 AIR SCW

132, wherein the Court held that once the eligibility

conditions and minimum qualifications prescribed by the

State or the competent Regulatory Authority are fulfilled, a

minority educational institution retains full autonomy to

appoint Teachers, Lecturers, Headmasters and Principals

through a rational and fair procedure of its choice.

22. Learned advocate then referred to the decision of the

Hon’ble Supreme Court in State of Bihar vs. Upednra

Narayan Singh reported in (2009) 5 SCC 65 and

submitted that any appointment made in contravention of

the statutory Recruitment Rules is illegal from its inception,

void ab initio and incapable of conferring any right, equity

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or entitlement upon the appointee. Referring to the decision

in State of Orissa vs. Mamata Mohanty reported in

(2011) 3 SCC 436, learned advocate submitted that the

appointment made in violation of statutory provisions is a

nullity in law and remains void irrespective of the length of

service rendered or any acquiescence by the authorities and

such illegality cannot be cured by passage of time. He

submitted that to the same effect is the decision of the

Hon’ble Supreme Court in the case of Union of India vs.

Kartick Chandra Mondal reported in (2010) 2 SCC 422.

23. Learned advocate submitted that since the

Recruitment Rules of the respondent-school are not in

consonance with the relevant Recruitment Rules notified by

the Directorate of Education, a candidate selected following

the school’s Recruitment Rules cannot be approved. Such

Recruitment Rules will be void ab initio. The respondent

authorities were justified and indeed, obliged to withhold

approval of appointment of the writ petitioner.

24. Learned counsel finally submitted that the plea of

discrimination is legally untenable. Approval may have

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been granted for appointment of candidates to other Post

Graduate Teachers in the same school where recruitment

was done following the rules of the school. However, Article

14 cannot be invoked to claim negative equality or parity

with any alleged irregular or illegal appointment. Each

recruitment proposal must stand on its own statutory

compliance and equality cannot be claimed in illegality.

COURT’S VIEW:

25. The short and essential question that arises for

consideration is, to what extent the Government can

interfere with the internal administration of a minority

educational institution, even if the Government grants aid

to such an institution.

26. Article 30(1) of the Constitution provides that all

minorities, whether based on religion or language, shall

have the right to establish and administer educational

institutions of their choice. Sub-Article (2) provides that the

State shall, in granting aid to educational institutions, not

discriminate against any educational institution on the

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ground that it is under the management of a minority,

whether based on religion or language.

27. The nature and extent of the constitutional right

guaranteed to the minorities by Article 30 have been

discussed in several decisions of the Hon’ble Supreme

Court. Essentially, the right to organize their internal

affairs and controlling other aspects of administration

including recruitment of staff, teaching and non-teaching,

is absolute subject only to Government’s right to

prescribe minimum qualification for teachers to be

appointed by such minority institutions. That is desirable

and since unless the teachers have a minimum standard,

the institution will not be able to achieve educational

excellence. After all, educational institutions are meant for

grooming children and young persons who are the future of

the country. Hence, the groomers must possess minimum

qualification. Apart from this, any other form of interference

by the State in the management of the affairs of a minority

educational institution would amount to infringement of its

fundamental right under Article 30 of the Constitution.

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28. In this connection, the following decisions of the

Hon’ble Supreme Court may be noted.

29. In S.K. Mohd Rafique vs. Managing Committee,

Contai Rahamania High Madrasah and others reported

at (2020) 6 SCC 689, in paragraph 53 of the judgment, the

Hon’ble Supreme Court observed as follows:-

“53. At the cost of repetition, it needs to be clarified that 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.”

30. In Sindhi Education Society and another vs. Chief

Secretary, Government of NCT of Delhi and others

reported at (2010) 8 SCC 49, the Hon’ble Supreme Court

observed that the State cannot be permitted to impinge

upon or violate directly or indirectly the constitutional

rights and protection granted to various classes including

the minorities. Thus, the State will not be within its

constitutional duty to compel a linguistic minority

institution to accept a policy decision, enforcement of which

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will infringe its fundamental right and/or protection. The

service in an aided minority school cannot be construed as

“a service under the State” even with the aid of Article 12 of

the Constitution of India. The Hon’ble Supreme Court went

on to hold that certain Rules framed by the government

under the Delhi School Education Act, 1973 cannot be

enforced against a minority school.

31. In the instant case, it would appear that the

educational qualficiation/eligibility criteria specified by the

respondent-school in its vacancy notice are higher and

more stringent than those prescribed by the Recruitment

Rules published by the Directorate of Education for the

same post. In my opinion, this is perfectly permissible.

Nothing would prevent a minority institution from

prescribing eligibility qualification for its teachers which are

higher than those prescribed by the Government. This

would only enhance the standard of the institution and the

quality of education rendered there. The only restriction on

the respondent-school is that it cannot specify eligibility

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qualifications which are less than those specified by the

government. That is not the case here.

32. Therefore, I see no justifiable reason for the

respondent no.2 to withhold approval for the appointment

of the writ petitioner in the vacant post of Post Graduate

Teacher (Biology), in the respondent-school. It is not the

requirement of law that the Recruitment Rules of a minority

institution must be identical with or absolutely similar to

the rules prescribed by the government. This is a

misconception of the respondent no.2. All that a minority

institution is required to ensure is that the qualifications

prescribed by the institution for a candidate to be

appointed to a particular post are not inferior to those

prescribed by the government.

33. On the other point of discrimination urged by the writ

petitioner, the respondent no.2 contends that there cannot

be negative equality. No equal treatment can be claimed in

illegality. This is a funny stand that the official respondent

has taken. It suggests that it has illegally approved the

appointment of teachers in the same school in other Post

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Graduate Teacher posts following the same rules of the

school which may be slightly at variance with the

government rules. I need not go into that issue.

34. Insofar as the issue of demo-class is concerned, the

respondent no.2 has taken a stand that the government

has done away with interviews for recruitment to certain

classes of posts. According to the respondent no.2, demo

class is also a form of interview. Hence, the Recruitment

Rules of the school are at variance with the government

Recruitment Rules on that score also.

35. I see no merit in the aforesaid stand of the respondent

no.2. A demo class may will be a kind of interview.

However, just because the government has abolished

interview in connection with the recruitment process for

certain kind of posts, that does not mean that the

respondent-minority school is also bound to follow that

course. A minority institution is free to decide on the

procedure or mechanism of recruitment as it deems fit and

in the best interest of the institution. The government

cannot dictate a minority institution in the matter of the

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procedure for recruitment that it must follow. So long as

the procedure followed is fair and rational, the government

cannot have any further say. I repeat, the only obligation of

a minority institution is to stipulate eligibility qualification

for candidates who aspire to be appointed as teachers in

such institution, which is not less than the eligibility

qualification prescribed by the corresponding Recruitment

Rules framed by the government.

36. Government office memoranda or government

circulars or government instructions in any other form are

not binding on minority institutions like the respondent-

school. The appointees in a minority institution do not

become servants of the government. Just because a

minority institution receives government aid, may be in

substantial sum, that per se would not make the institution

a State within the meaning of Article 12 of the Constitution

or a wing of the government.

37. In fact, as would appear from Article 30(2) of the

Constitution of India, it is the constitutional duty of the

government not to discriminate against a minority

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institution in the matter of grant of aid just because the

minority institution enjoys autonomy of management and is

free from government control or intervention insofar as its

day to day administration is concerned.

38. In view of the aforesaid, this writ petition succeeds.

The impugned communication dated September 16, 2025,

is set aside.

39. The respondent no.2 is directed to approve the

appointment of the writ petitioner in the vacant post of Post

Graduate Teacher (Biology) in the respondent-school since

there is no dispute that the writ petitioner has requisite

minimum qualification and has been recommended by the

selection committee of the school for appointment. Such

approval will be accorded within a fortnight from the date of

communication of this order by the writ petitioner to the

respondent no.2.

40. WPA/554/2025 is accordingly disposed of. There will

be no order as to costs.

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41. Urgent photostat certified copy of this order, if applied

for, be supplied to the parties upon compliance of usual

formalities

( Arijit Banerjee, J.)