Two days after the Supreme Court upheld the constitutionality of Sections 8, 10, 11 and 12 of the West Bengal Madrasah Service Commission Act, 2008 (2008 Act), the managing committee of the Contai Rahamania High Madrasah has moved a writ petition challenging its correctness.
The petition filed prays that the Supreme Court refer the matter to a larger Bench, while contending that the judgment passed last Monday is in conflict with an earlier three-judge Bench judgment rendered by the Supreme Court in September, last year.
The Supreme Court today agreed to hear the plea on Friday.
The provisions in question empower 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.
On Monday, the Bench of Justices Arun Mishra and UU Lalit held that these provisions were constitutional in the case of Sk. Md. Rafique v. Managing Committee, Contai Rahamania High Madrasah and Others.
The judgment was based on the application of certain tests laid down in the case of TMA Pai Foundation v. State of Karnataka to discern the permissible limits of regulation when it comes to minority educational institutions.
However, the petition filed by Advocate Sarla Chandra contends that the Division Bench judgment is not only in conflict with the case of TMA Pai Foundation case, but also contradictory to the stance taken by a three-judge Bench of the Supreme Court last September in Chandana Das (Malakar) v. State of West Bengal & Ors. The petitioners go on to submit that Articles 12, 14, 21 and 30 (1) of the Constitution are also violated.
Inter alia, the petitioners have argued that the Supreme Court cannot curtail rights already guaranteed to minority educational institutions under Article 30 (1) of the Constitution citing national interest.
“… the court cannot treat a particular community, belonging to the minority community as step son by curtailing a right which is already given under article 30 showing the National interest…
… the issues in question were nowhere related with the national interest …”
The petitioners emphasise that in the TMA Pai Foundation, it was held that in regulating minority education institutions, “the regulatory measures of control should be very minimal.”
“… the matter of day to day management like appointment of staff, teaching and non-teaching and administrative control over them, the Management should have the freedom and there should not be any external controlling agency.”
Moreover, in the Chandana Das case, a three-judge Bench eventually upheld Justice TS Thakur’s opinion concerning the rights of linguistic and religious minorities to administer their institutions. The three-judge Bench had decided on the issue after a difference of opinion arose in 2015 between Justice Thakur and Justice R Banumathi, necessitating the referece to a larger Bench.
Inter alia, it is observed that the Court had upheld Justice Thakur’s opinion that such rights cannot then be diluted by the State or its functionaries by insisting that the appointment of staff should be made only with the approval of the Director or by following the mechanism generally prescribed for institutions that do not enjoy the minority status.
"Grant of aid cannot … be made subservient to conditions which deprive the institution of their substantive right of administering such institutions. Suffice it to say that once … institution is held to be a minority institution entitled to the protection of Articles 26 and 30 of the Constitution of India the right to appoint teachers of its choice who satisfy the conditions of eligibility prescribed for such appointments under the relevant rules is implicit in their rights to administer such institutions.”
Arguing that the issues involved in the Chandana Das case and the case of Sk. Md. Rafique v. Managing Committee, Contai Rahamania High Madrasah and Others, which is in question, are same and identical, the petitioners have now called on the Supreme Court to refer the issue to a larger Bench.
“… It is not in dispute that in both the cases the parties are covered under Article 30 of the Constitution of India but the views of two courts of this Hon’ble Court is completely contradictory as well as the TMA Pai Foundation case has been virtually distinguished by this Hon’ble Court in Civil Appeal No. 5808 of 2017 [Chandana Das case].”
As an interim prayer, the petitioners have also urged that the Supreme Court stay the operation of its Monday judgement in the meanwhile.
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