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CASE NO.:

Appeal (civil) 3232-3234 of 2000

PETITIONER:

Ramakrishna Vivekananda Mission

RESPONDENT:

State of West Bengal & Ors.

DATE OF JUDGMENT: 29/11/2004

BENCH:

Y.K. Sabharwal & D.M. Dharmadhikari

JUDGMENT:

J U D G M E N T

Y.K. Sabharwal, J.

The appellant Ramakrishna Vivekananda Mission (for short, 'the

Mission') has challenged in these appeals a common judgment of the

Division Bench of the High Court whereby two appeals challenging the

order of a learned Single Judge and a Writ Petition No.18402(W) of 1997

filed by the Mission were dismissed.

The Mission is running a school known as Ramakrishna

Vivekananda Mission Vidya Bhawan. The school is affiliated to the West

Bengal Board of Secondary Education (for short, 'the Board') and is

governed by the West Bengal Board of Secondary Education Act, 1963

(for short, 'the Act'). The two private respondents Swapan Panda and

Tapan Negoi were appointed as teachers in the school in the years 1977

and 1986 respectively. Both were approved teachers. The other

respondents in these appeals are State of West Bengal and the education

authorities under the Act.

The West Bengal Board of Secondary Education (Manner of Hearing

and Deciding Appeals by Appeal Committee) Regulations, 1964 (for short,

'the Regulations') and Management of Recognized Non-Government

Institutions (Aided and Unaided) Rules, 1969 (for short, 'the Rules) have

been framed under the provisions of the Act.

According to the Mission, since the aforesaid two teachers refused

to do hostel duty, show cause notice dated 4th April, 1996 was issued to

them. The teachers, in reply to the said notice, took the stand that they

had become 'approved teachers' and were no longer bound by the terms

and conditions of service requiring them to do hostel duty. In terms of

letters dated 18th May, 1996, services of these teachers were terminated.

For proper appreciation of the controversy, it is necessary to note

the proceedings under the Regulations that were initiated by the teachers

challenging the validity of termination and orders passed thereon besides

the proceedings in the High Court and the orders passed by the High Court

as also the provisions of the Act, Regulations and the Rules. The orders

passed in Writ Petition No.2041 of 1986 that was filed by the Mission

claiming certain rights under Articles 14, 26 and 30 of the Constitution of

India are also relevant for the present purpose.

The school run by the Mission is affiliated to the Board established

under the Act. 'Board' means the West Bengal Board of Secondary

Education established under the Act [Section 2(a)]. Sections 18 to 26 are

in Chapter III of the Act which, inter alia, deals with constitution of various

committees. Section 18 provides that as soon as may be after the Board

is established, the Board shall constitute committees mentioned therein.

One of the Committees with which we are concerned is the Appeal

Committee. The constitution of the Appeal Committee has been provided

for in Section 22 of the Act. Sub-section (3) of Section 22 provides that it

shall be the duty of the Appeal Committee to hear and decide appeals filed

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by teachers and other employees against decisions of Managing

Committees of institutions adversely affecting them, in accordance with the

regulations made in this behalf. Section 27 provides for powers and duties

of the Board. Section 27(3) empowers the Board to make regulations in

respect of any matter for the proper exercise of its powers under the Act.

Section 45 is a rule making power of the State Government. Section 45(1)

provides that the State Government may, after previous publication, make

rules for carrying out the purposes of the Act.

In exercise of powers under Sub-section (3) of Section 27 read with

Sub-section (3) of Section 22 of the Act, the Board made the Regulations

providing for filing of appeal against the decision of the Managing

Committee. The expression 'Managing Committee' is defined in Section

2(d) of the Act. The said section states that the 'Managing Committee'

used in reference to an institution includes the Governor or Governing

Body of such an institution. The 'institution' means a secondary school or

an educational institution or part or department of such school or institution

imparting instructions in secondary education [(Section 2(c)]. Regulation 3

provides that a teacher who feels to have been affected adversely by any

decision of the Managing Committee of the institution he serves or has

served, may appeal direct to the Appeal Committee against such decision

in accordance with the provisions of the Regulations. Regulation 4

provides that the Managing Committee against whose decision an appeal

is intended to be preferred shall, on demand in writing furnish a copy of the

decision in question to the appellant within a week from the date of such

demand. The adversely affected teacher has been referred to as the

appellant in the Regulations. Regulation 4(2) stipulates that the appellant

shall submit to the Secretary to the Board, by registered post with

acknowledgement due, a memorandum of appeal within one month from

the date on which he receives a copy of the decision from the Managing

Committee. The Regulation further provides for the manner of processing

and hearing of the appeal and matters connected therewith.

In exercise of power under Section 45 of the Act, the State

Government has framed the Rules. Rule 28 sets out powers of the

Committee of an aided institution subject to the approval of the Director.

For the present purpose, Sub-Rule (8) of Rule 28 is relevant. It reads as

under :

"Both in aided and unaided Institutions the

Committee shall have the power, subject to the

prior approval of the Board, to remove or dismiss

permanent or temporary teachers and other

employees. For this purpose the Committee shall

first draw up formal proceedings and issue

charge-sheet to the teacher or the employee

concerned, and offer him reasonable facilities for

defending himself. The teacher or the employee

proposed to be proceeded against shall submit

his explanation, ordinarily, within a fortnight of the

receipt of the charge-sheet. The Committee shall

send to the Board all relevant papers including

the charge-sheet, explanations submitted by the

teacher or the employee concerned and the

reasons for which the Committee decides in

favour of taking disciplinary action. If the Board

considers that there are sufficient grounds for

taking disciplinary action the Committee shall

issue formal notice calling upon the teacher or the

employee concerned to show cause, ordinarily

within a fortnight, why he should not be dismissed

or removed from service. The Committee shall,

then, send again, to the Board all relevant papers

including the explanation submitted by the

teacher or the employee concerned and the

recommendations of the Committee for the action

proposed to be taken. So for as the Committee is

concerned, the decision of the Board shall be

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final:

Provided that the Board may delegate to any

Committee constituted under Section 24 of the

Act the powers and functions conferred on the

Board by this sub-rule."

Rule 33 provides for the power of the State Government to frame

further Rules for certain institutions. It reads as under :

"Power of the State Government to frame

further rules for certain Institutions : Nothing in

these rules shall affect the power of the State

Government to frame, on the application of any

Institution or class of Institutions, to which the

provisions of Article 26 or Article 30 of the

Constitution of India may apply, further or other

rules for the composition, powers, functions of the

Managing Committee or Committees of such

Institution or class of Institutions."

The Mission wanted the State Government to frame Rules under the

aforesaid Rule 33, hereinafter referred as 'Special Rules'. A writ petition

(being No.2041 of 1986) was filed by the Mission seeking directions

against the State Government requiring it to frame the Special Rules in

exercise of power under Rule 33. The claim of the Mission was that it

fulfilled all the requisites of being a religious denomination within the

meaning of Article 26 of the Constitution of India, its further case being that

the State Government having framed Special Rules in respect of several

institutions governed by Article 26 or 30 of the Constitution which had

identical religious beliefs, objects and functions as that of the appellant

Mission, the denial of framing Special Rules for the Mission was also

violative of Article 14 of the Constitution. The Mission wanted that the

Special Rules adopted by it in November 1986 for the management of the

school shall be approved. The grievance of the Mission was that the State

Government was illegally not sanctioning the Special Rules although it had

sanctioned the same in respect of the Ramakrishna Mission and

Ramakrishna Sharda Mission despite the fact that their objects were the

same as that of the appellant Mission. By orders dated 14th October, 1993

passed in Writ Petition No.2041 of 1986, a learned Single Judge of

Calcutta High Court came to the conclusion that the appellant Mission is

entitled to the approval of their rules as Special Rules for their school.

Accordingly, the State Government and Education Department were

directed to approve the Special Rules of the appellant Mission within one

month from the date of communication of the order. The order dated 1st

March, 1994 passed by the High Court records the statement made by the

counsel representing the State Government that the Government has no

objection for granting Special Rules for the management of the school of

the Mission excepting that the Mission may be persuaded to opt out of the

grant-in-aid scheme. Rejecting the said stand the High Court held in terms

of judgment and order dated 1st March, 1994 that the grant of Special

Rules cannot be linked with the grant-in-aid. The benefit of grant-in-aid

cannot be withdrawn by granting Special Rules. In no school where

Special Rules have been granted, grants-in-aid have been withdrawn or

denied. The order then records the statement of counsel for the State that

Special Rules in terms of the orders dated 14th October, 1993 have already

been approved and the file was also produced before the Court. Writ

Petition No.2041/1986 was disposed of in terms of judgment and order

dated 1st March, 1994 by issue of certain other directions as well which are

not relevant for the present purposes.

Reverting now to the orders of termination of two teachers referred

to hereinbefore, two appeals (Appeal Nos.9 and 10 of 1996) were filed by

the teachers on 10th June, 1996 before the Appeal Committee of the Board

under the Regulations. Almost at the same time, the teachers also filed on

12th June, 1996 Writ Petition Nos.7932-7933 of 1996 before the High Court

challenging the orders of termination. The Mission also filed on 14th

August, 1996 Writ Petition Nos.1750-1751 of 1996 challenging the

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competence of the Appeal Committee to hear the appeals. Admittedly,

both the teachers withdrew their appeals (Appeal Nos.9 and 10) pending

before the Appeal Committee. The appeals were unconditionally

dismissed as withdrawn on 16th December, 1996. On 17th December,

1996, aforesaid two writ petitions filed by the teachers were also

unconditionally withdrawn.

After sometime, applications were filed by the teachers before the

Appeal Committee seeking restoration of the two appeals that had been

dismissed on 16th December, 1996. The Mission approached the High

Court by filing an application in Writ Petition Nos.1750-1751 of 1996

contending that the Appeal Committee had no power to entertain and hear

the appeals which had already been dismissed as withdrawn. A Division

Bench of the High Court, by order dated 11th February, 1997 disposed of

Writ Petition Nos.1750-1751 of 1996 holding that after the appeals had

been allowed to be withdrawn by the Appeal Committee of the Board, the

Appeal committee had become completely functus officio and had no

jurisdiction to proceed with the said appeals. In that view, it was held that

the writ petitions of the Mission had become infructuous because the

appeals were no longer subsisting and were not alive. As already noticed,

the challenge of the Mission in the said writ petitions was to the

competence of the Appeal Committee to hear the appeals. The Division

Bench did not adjudicate the question whether against the orders of

termination the Appeal Committee of the Board could entertain fresh

appeals under law and observed that if the situation arise, the parties

would be at liberty to take steps in the matter according to law. It was

observed that the Court was not called upon to decide the future course of

action the Appeal Committee of the Board may take in the facts and

circumstances of the case.

On 3rd April, 1997, two fresh Appeal Nos.3 and 4 of 1997 were filed

by the teachers challenging the orders of termination above referred. The

competence of the Appeal Committee to hear the fresh appeals filed by the

teachers was challenged by the Mission by filing Writ Petition Nos.804-805

of 1997. In the said writ petitions, the High Court directed the Appeal

Committee to proceed in two stages \026 (1) to decide on the maintainability

of the appeals; and (2) hear the appeals on merits but shall not pass any

final order without obtaining leave of the Court. The Appeal Committee

rejected the preliminary objection about the maintainability of the appeals.

Aforesaid, writ petitions were dismissed by the learned Single Judge on

25th February, 1998 upholding the order of the Appeal Committee which

had quashed the order of termination by orders passed on 17th September,

1997. It seems that during the course of hearing of the writ petitions, the

Board handed over to the court a sealed cover which contained the final

determination of the Appeal Committee. In so far as the Mission is

concerned, it seems that the communication about the order setting aside

the order of termination was sent to it only on 15th November, 1999. The

Mission filed two appeals against the order of learned Single Judge which

were dismissed by the impugned judgment.

The Mission had also filed another Writ (being Petition

No.18402/97), inter alia, praying for formal communication of the approval

of the Special Rules and to publish such approved Special Rules in the

Official Gazette. The said writ petition was disposed of along with the

aforenoted two appeals by the Division Bench by a common judgment.

The writ petition has also been dismissed.

The Division Bench mainly considered two questions, namely (1)

whether Special Rules in fact had been approved or could be approved in

terms of the provisions of the Act and the Rules and (2) whether the

publication of the Special Rules was mandatory and the effect of non-

publication.

The aforesaid questions have been decided against the Mission in

as much as the High Court in the impugned judgment has held that

publication of the Special Rules in the Gazette was mandatory and since

the publication was not done, the order dated 1st March, 1994 would be

without jurisdiction and thus not binding on the teachers. Further, on the

question of the non-maintainability of second set of appeals, the High

Court has merely noticed that liberty was granted to the teachers to file

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fresh appeals and, therefore, those appeals would be maintainable.

Insofar as the prayers made in Writ Petition No. 18402 of 1997 seeking

formal approval of the rules which, in other words, means publication of the

said rules at that stage, since the publication was held mandatory by the

High Court, no specific orders have been passed except stating that writ

petition deserves to be dismissed.

On behalf of the appellants, Mr. Dipankar Gupta, senior advocate

submits that the Division Bench committed serious illegalities both, on

facts and law since no liberty has been granted to the teachers to file fresh

appeals and the factum of the approval of Special Rules, as noticed in the

order dated 1st March, 1994, could not be disputed by the State

Government and that order was erroneously held to be without jurisdiction.

Learned counsel further submits that in any case, on the Division Bench

coming to the conclusion that the publication was mandatory, orders

sought for in Writ Petition No.18402/97 ought to have been passed and

publication should have been directed to be made at that stage.

Before we examine aforesaid contentions, it may be noted that an

additional ground was also taken by the appellant by filing an application

challenging the validity of Rule 28(8) but Mr. Dipankar Gupta did not press

the said challenge as the validity of the Rules was not challenged before

the High Court. In this view, we need not examine the validity of the said

Rule. We may also note that so long as Special Rules under Rule 33 are

not legally made or come into force, 1969 Rules will prevail and continue to

apply which, in other words, means Rule 28(8) would continue to apply.

Regarding the publication of the Rules, neither can it be seriously disputed

nor it has been so disputed that the requirement of Section 45 of the Act is

mandatory. Section 45 requires the State Government to make rules for

carrying out the purposes of the Act after previous publication. In this

background, the points to be examined are :

1. Is the appellant entitled to claim rights under Article 26 of the

Constitution of India and on that basis seek framing of Special Rules

under Rule 33;

2. What is the effect of non-publication of the Special Rules referred to

in the order dated 1st March, 1994 passed by the High Court in Writ

Petition No.2041/86;

3. Whether an order for publication of the Rules ought to have been

made in Writ Petition No.18402/97;

4. Whether the second set of appeals (Nos.3 and 4 of 1997) filed by

the teachers were maintainable, if not, its effect

Point No.1 :

The claim of the Mission for framing of Special Rules based on

Articles 14 and 30 of the Constitution has not been pressed before us.

Learned counsel for the appellant has only relied upon Article 26 of the

Constitution. The Division Bench in the impugned judgment, after quoting

a passage from the decision in Bramchari Sidheswar Shai & Ors. v.

State of W.B. & Ors. [(1995) 4 SCC 646], has observed that 'This Bench,

thus, will have to proceed on the basis as to whether special rules

allegedly framed by the petitioner itself could have been approved'. The

passage from Bramchari Sidheswar Shai's case, quoted in the

impugned judgment is as under :

"We think that the learned Judges of the High

Court should not have decided on the general

question whether educational institutions

established and maintained by religious

denomination including those established and

maintained by Ramakrishna Mission for general

education get the protection of Article 26(a) of the

Constitution when that question in a general form,

was not really at issue before them. Therefore,

the views expressed on the question shall,

according to us, ought to be treated as non set

and the question is left open to be decided in

proper case, where such question really arises

and all the parties who might be concerned with it

are afforded adequate opportunity to have their

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say in the matter."

The aforesaid passage occurs in para 65 of the decision in

Bramchari Sidheswar Shai's case. The observations in para 65 were

made while considering the question that if Ramakrishna Mission as

religions denomination or a section thereof establishes and maintains

educational institutions, can such institutions be regarded as institutions

established and maintained for charitable purpose within the meaning of

Article 26(a) of the Constitution of India. By the aforesaid observation, this

Court held that the High Court should not have decided the general

question whether educational institutions established and maintained by

religious denominations including Ramakrishna Mission for general

education would get the protection of Article 26(a) when that question in

general was not really at issue before the High Court. It was in this

connection that this Court held that the views expressed on the question

ought to be treated as non est and left the question open to be decided in

a proper case. It may also be noticed that in paras 57 and 58, it was held

that no good reason was shown for not accepting the view that

Ramakrishna Mission or Ramakrishna Math is 'a religious denomination'

and that the persons belonging to or owing their allegiance to Ramakrishna

Mission or Ramakrishna Math belong to a religious denomination within

the Hindu Religion or a section thereof as would entitle them to claim the

fundamental rights conferred on either of them under Article 26 of the

Constitution of India. Point No.2 in that case was as under :

"Do persons belonging to or owing allegiance to

Ramakrishna Mission belong to a religious

denomination or any section thereof as would

entitled them to claim the fundamental rights

conferred on either of them under Article 26 of the

Constitution of India?"

The said question was answered in the affirmative as noticed in para

58 of the report.

In any case, the question now stands settled by a decision rendered

by a 11 Judge Bench in T.M.A. Pai Foundation & Ors. v. State of

Karnataka & Ors. [(2002) 8 SCC 481] para 26 whereof reads thus :

"The right to establish and maintain educational

institutions may also be sourced to Article 26(a),

which grants, in positive terms, the right to every

religious denomination or any section thereof to

establish and maintain institutions for religious

and charitable purposes, subject to public order,

morality and health. Education is a recognized

head of charity. Therefore, religious

denominations or sections thereof, which do not

fall within the special categories carved out in

Article 29(1) and 30(1), have the right to establish

and maintain religious and educational

institutions. This would allow members belonging

to any religious denomination, including the

majority religious community, to set up an

educational institution. Given this, the phrase

"private educational institution" as used in this

judgment would include not only those

educational institutions set up by secular persons

or bodies, but also educational institutions set up

by religious denominations; the word "private" is

used in contradistinction to government

institutions."

The point whether the appellant is entitled to rights under Article 26

has, in fact, not been seriously disputed either by learned counsel

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appearing for the State Government or the private respondents.

Having regard to the aforesaid, the first point is answered in favour

of the appellant.

Point Nos. 2 and 3 :

The background leading to the passing of the Order dated 1st March,

1994 has already been noticed hereinbefore. It cannot be seriously

disputed that the special rules framed under Rule 33 require prior

publication as postulated by Section 45 of the Act. It further cannot be

disputed that before such publication the procedure prescribed under

Section 24 of the West Bengal General Clauses Act, 1899 had to be

complied with. Section 24 of the West Bengal General Clauses Act reads

as under :

"24. Provisions applicable to making of rules

or by-laws after previous publication.\027 Where

by any Bengal Act or West Bengal Act, a power to

make rules or by-laws is expressed to be given

subject to the condition of the rules or by-laws

being made after previous publication, then the

following provisions shall apply namely:-

(1) the authority having power to make the rules

or by laws shall, before making them, publish

a draft of the proposed rules or by-laws for

the information of persons likely to be

affected thereby;

(2) the publication shall be made in such manner

as that authority deems to be sufficient, or, if

the condition with respect to previous

publication so requires, in such manner as

the Government concerned prescribes;

(3) there shall be published with the draft a

notice specifying a date on or after which the

draft will be taken into consideration;

(4) the authority having power to make the rules

or by-laws, and, where the rules or by laws

are to be made with the sanction, approval or

concurrence of another authority, that

authority also, shall consider any objection or

suggestion which may be received by the

authority having power to make the rules or

by-laws from any person with respect to the

draft before the date so specified;

(5) the publication in the Official Gazette of a

rule, or by-law purporting to have been made

in exercise of a power to make rules or by

laws after previous publication shall be

conclusive proof that the rule or by-law has

been duly made."

The Special Rules have the effect of encroaching upon the rights of

the teaching and non-teaching staff in the school. On publication of the

draft rules, those affected by the Special Rules are granted opportunity to

file objections and suggestions to those rules. Section 24 postulates fixing

of date for consideration of draft Rules by the State Government. The

objections or suggestions that may be received are required to be

considered before taking a decision to publish the rules in official gazette

as the said publication is conclusive proof of the rules having been duly

made.

In the instant case, effect of the Special Rules is to deprive of the

teachers of valuable rights under Rule 28(8). Under the said Rule, the

decision of the Board on the disciplinary matters is final whereas under the

Special Rules, it would be the decision of the Committee which would be

final. It is true, as already noticed, that the High Court was informed that

the Rules had been approved as recorded in the order dated 1st March,

1994 in Writ Petition No.2041 of 1986. The said order cannot, however,

adversely affect the teachers here, particularly, when the private

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respondents (teachers) were not parties in those proceedings and also

when the law was not followed insofar as the previous publication was

concerned. We are unable to accept the contention that there was

sufficient and enough publication of the Special Rules. There has to be

strict compliance of the provision regarding previous publication as it vitally

affects the teaching and non-teaching staff which has a valuable right to

object to the Special Rules when its draft is published. The teaching class

can put forth its view point and give suggestions to the State Government

on publication of the draft Rules. Admittedly, nothing of the kind was done.

It cannot be held that valid Special Rules came to be made only because

of orders dated 1st March, 1994. In the absence of Special Rules, 1969

Rules would continue to apply and prevail.

Having reached the aforesaid conclusion but, at the same time,

bearing in mind the proceedings and orders passed in Writ Petition

No.2041 of 1986 as referred to earlier, the learned Division Bench

committed serious illegality in not allowing prayer made in Writ Petition

No.18402 of 1987 by directing publication of the Special Rules in terms of

Section 45 of the Act and Section 24 of the General Clauses Act. The

Special Rules were approved by the Stated Government as noticed in the

order dated 1st March, 1994. These Rules ought to have been treated as

the draft Rules under Rule 33 and directions for its previous publication by

following the procedure under Section 24 ought to have been made. It is,

however, for the State Government to consider the objections and

suggestions, if any, that may be filed on the publication of the draft Rules

and to consider the same in accordance with law and thereafter to notify

the Special Rules in the Official Gazette in case the Government comes

into conclusion that the said Rules deserve to be made under Rule 33.

In view of the aforesaid, we direct the State Government to treat the

Rules mentioned in orders dated 1st March, 1994 as draft rules and

proceed to follow the procedure contemplated by Section 24 of the

General Clauses Act. The draft Rules shall be published within a period of

two months specifying in the notice the date of not later than one month

from the date of the notice when the draft will be taken up for

consideration. The procedure prescribed under Section 24 shall be

completed within a period of four months and if the rules are to be notified,

the decision shall be taken within four months. The decision on objections

or suggestions that may be received on publication of the draft Special

Rules shall be taken, one way or the other within the said period of four

months.

Point No.4

The regulations under which an appeal could be filed have already

been noticed hereinbefore as also the facts about filing of first set of

appeals, unconditional withdrawal thereof, the dismissal of application for

revival of those appeals, the filing of second set of appeals and the

connected matters. The High Court fell into error in coming to the

conclusion that any liberty had been granted to the teachers to file second

set of appeals. The order of the High Court dated 11th February, 1997

which had attained finality shows that no such liberty was granted. In fact,

the said order postulates that in case second set of appeals were filed,

their maintainability would be decided in accordance with law. Under the

regulations, there is no provision for filing of second set of appeals when

earlier appeals are unconditionally withdrawn. The irresistible conclusion,

therefore, is that Appeal Nos.3 and 4 were not maintainable. The effect of

it would be that the order of termination of the services of the teachers

would remain unchallenged. The teachers did not file any writ petition

challenging the order of termination, since they had succeeded before the

Board in second set of appeals (Appeal Nos.3 & 4).

In view of the above, peculiar situation has arisen. On one hand the

Special Rules have not come into force on account of non-publication

thereof and, thus, the appellant was required to follow the procedure under

Rule 28(8). Admittedly, that was not followed. On the other hand, the

orders of termination have attained finality as second set of appeals under

the Regulations were not maintainable. Having regard to this peculiar

position, we are of the view that the power under Article 142 deserves to

be exercised for doing complete justice to the parties. In this view, even in

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absence of any substantive proceedings by the teachers, we hold that the

orders of their termination are not valid. Both teachers would be entitled to

be reinstated into service but without payment of arrears of salary and on

their giving undertaking to the appellant to do hostel duties as had been

agreed at the time of induction into service. Point No.4 is decided

accordingly.

For the foregoing reasons, we set aside the impugned judgment and

dispose of the appeals in terms of the aforesaid directions.