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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.