No violation of minority institution rights: SC upholds WB Madrasah Service Commission’s power to nominate teachers to Madrasas

The Supreme Court on Monday upheld the constitutionality of Sections 8, 10, 11 and 12 of the West Bengal Madrasah Service Commission Act, 2008 (2008 Act).

These provisions empowered a Commission constituted under the 2008 Act to nominate the teachers to be appointed to aided Madrasas in West Bengal, which were declared minority educational institutions in the State in 2007.

A Division Bench of Justices Arun Mishra and UU Lalit held,

The Court reiterated that regulation of minority institutions, including in the matter of appointment of teachers, is permissible if it is intended to ensure excellence in the minority institution, without interfering with its minority status.

“What was accepted as correct approach (in the TMA Pai Foundation case) was the test laid down by Khanna, J. in Ahmedabad St. Xavier’s College case that a balance be kept between two objectives - one to ensure the standard of excellence of the institution and the other preserving the right of the minorities to establish and administer their educational institutions.

… it is permissible if any regulations seek to ensure the standard of excellence of the institutions while preserving the right of the minorities to establish and administer their educational institutions.”

Factual Background

The challenged provisions of the 2008 Act bound the managing committee of aided Madrasas to appoint teachers nominated by the Commission constituted under the Act.

Notably, Section 12 prescribed the penal consequences that would follow upon the failure of the managing committee to appoint the nominated teachers within a reasonable time and without any reasonable ground. Such penal measures included dissolving the managing committee, stopping grant of financial aid and withdrawal of government affiliation.

These provisions were challenged in 2013 before the Calcutta High Court as violative of the rights of minority institutions under Article 30 of the Constitution of India.

A Single Bench of the High Court allowed the challenge and found the provisions to be unconstitutional. An appeal filed by some candidates who were nominated by the Commission to Madrasas was subsequently dismissed by a Division Bench of the High Court, prompting a further appeal before the Supreme Court.

Right of minority institutions under Article 30 (1) not absolute

The Court ultimately focused on the test formulated in the TMA Pai Foundation case to discern the permissible extent of regulation when it comes to minority institutions.

In that case, an 11-judge Bench of the Supreme Court highlighted that the rights of minorities to establish and administer educational institutions of their choice under Article 30 (1) of the Constitution is not absolute.

“The decision in TMA Pai Foundation, rendered by Eleven Judges of this Court, thus put the matter beyond any doubt and clarified that the right under Article 30(1) is not absolute or above the law and that conditions concerning the welfare of the students and teachers must apply in order to provide proper academic atmosphere, so long as the conditions did not interfere with the right of the administration or management.“

In view of this, the Bench proceeded to point out that regulations intended for the excellence of the institution, while also preserving the minority status of the institution, are permissible.

Regulation in appointment of qualified teachers to minority institutions permissible

The TMA Pai Foundation case had also specifically dealt with the question of whether the appointment of teachers to minority institutions could be regulated. The Bench observed that such regulation is permissible, provided that the minority institution is not meted out unfavourable treatment.

“When it comes to the right to appoint teachers, in terms of law laid down in TMA Pai Foundation 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.

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.”

The Bench opined that there is no infirmity in allowing the Commission to nominate teachers to Madrasas, provided that the nominees are properly qualified. If the nominees are less qualified, the Court pointed out that the minority educational institution cannot be forced to accept such inferior nominees. In this regard, it is observed, inter alia,

“One can understand if under the regulatory regime candidates who are otherwise less qualified are being nominated in the minority educational institution and the minority educational institution is forced to accept such less meritorious candidates in preference to better qualified candidates.

In such cases, the minority educational institution can certainly be within its rights to agitate the issue and claim a right to choose better teachers.”

However, when appropriately qualified candidates are nominated to the minority institution, the Supreme Court took note that the institution’s rights is not absolute to reject such nomination merely citing its right of choice.

On this aspect, the Court first pointed out that the education imparted by a minority institution may be of a secular/general nature or it may be religious, linguistic or another kind of heritage-based or cultural education.

In the latter case, the minority institution may be more suited to recommend the teachers to impart such specific education. However, the Bench pointed out,

“… 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?

The choice so exercised would not be in pursuit of excellence. Can such choice then be accepted?”

The Court eventually summed up the the legal position as follows.

“… 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.”

Sections 8, 10, 11 and 12 of West Bengal Madrasah Service Commission Act, 2008 upheld

In view of the above, among other, observations, the Supreme Court upheld the challenged provisions of the 2008 Act. The Court found that these provisions and corresponding rules had been enacted to ensure that only those best suited to impart education in the Madrasah Education system were selected as teachers.

Pertinently, the Bench also opined that Sections 10 and 12 of the 2008 Act itself provided the managing committee of the Madrasa sufficient opportunity to reject any inferior candidates nominated by the Commission.

“It is true that the recommendations or nominations of teachers made by the Commission are otherwise binding on the Managing Committees of concerned Madrasahs, but, in terms of second proviso to Section 10 of the Commission Act, if there be any error, it is open to the Managing Committee of the concerned Madrasah to bring it to the notice of the Commission for removal of such error. The concept of ‘error’ as contemplated must also include cases where the concerned Madrasah could appoint a better qualified teacher than the one nominated by the Commission. If any such error is pointed out, the Commission will certainly have to rectify and remove the error.

The further protection is afforded by Section 12 of the Commission Act, under which the concerned Madrasah could be within its rights to refuse to issue appointment letter to the candidate recommended by the Commission if any better qualified candidate is otherwise available with the managing committee of the concerned Madrasah. Such refusal may also come within the expression ‘any reasonable ground’ as contemplated in Section 12(i) of the Act.“

In view of these checks, the Supreme Court proceeded to hold,

“The legislature has thus taken due care that the interest of a minority institution will always be taken care of by ensuring that i) in normal circumstances, the best qualified and suitable candidates will be nominated by the Commission; ii) and in case there be any error on part of the Commission, the concerned Managing Committee could not only point out the error which would then be rectified by the Commission but the Managing Committee may also be within its rights in terms of Section 12 (i) to refuse the nomination on a reasonable ground.“

It thus allowed the appeals and set aside the Calcutta High Court’s judgments, while opining,

“The regime put in place by the State legislature thus ensures that the Commission comprising of experts in the field would screen the talent all across the State; will adopt a fair selection procedure and select the best available talent purely on merit basis; and even while nominating, the interest of the minority institution will also be given due weightage and taken care of. The statutory provisions thus seek to achieve ‘excellence’ in education and also seek to promote the interest of the minority institutions. The provisions satisfy the test as culled out in the decision of this Court in TMA Pai Foundation case.”

[Read the Judgment]