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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.