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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

REVIEW PETITION (C.) NOS.1850-1851 OF 2005

IN

WRIT PETITION (CIVIL) NOS.9683-9684  OF 1983

STATE OF WEST BENGAL & ORS.                          Petitioner(s)

                     VERSUS

BRAHMO SAMAJ EDUCATION SOCIETY & ORS.                Respondent(s)

O R D E R

1. These Review Petitions have been filed by the State of West Bengal seeking

review of the judgment of this Court in  Brahmo Samaj Education Society & Ors. Vs.

State of West Bengal & Ors., reported in (2004) 6 SCC 224.  The said decision was

rendered in writ petition(c)nos.9683-9684 of 1983,  filed by the petitioners therein i.e.

Brahmo Samaj Education Society & ors. challenging some of the provisions contained in

the  West  Bengal  College  Service  Commission  Act,  1978  contending  that  they  are

violative of Articles 19(1)(g) and 19(1)(6) of the Constitution of India. The petitioners

therein   contended  that  they  had  got  a  right  to  appoint  teachers  of  their  choice,

provided  they  satisfied  the  prescribed  requisite  qualification  for  appointment  as

teachers of the institution.  In the said case, this Court had examined the said question,

in view of an earlier decision of this Court in T.M.A.Pai Foundation & Ors. Vs. State of

Karnataka & Ors., reported in (2002) 8 SCC 481 and has observed in paragraph 7 of the

decision in Brahmo Samaj Education Society & Ors.(supra) as follows:

“.....Only  a  person  who  has  qualified  NET  or  SLET  will  be  eligible  for

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appointment as a teacher in an aided institution.  This is the required basic

qualification for a teacher.  The petitioners' right to administer includes the

right  to  appoint  teachers  of  their  choice  among  the  NET/SLET-qualified

candidates”.    

A reference was also made to paragraph 72 of the decision in T.M.A.Pai Foundation

case (supra).

2. Learned counsel for the Review Petitioner-State contended that the West

Bengal  College  Service  Commission  Act  has  laid  down  certain  procedure  for

appointment  of  teachers  and  that  is  in  conformity  with  the  opinion  laid  down  in

T.M.A.Pai Foundation case (supra).  On the other hand, learned counsel appearing for

the respondent-Brahmo Samaj Education Society has contended that they have got a

right to appoint teachers of their choice even though they are aided institutions.  The

observations made by this Court in Para 7 of Brahmo Samaj Education Society (supra)

are contrary to what is held in para 72 of the T.M.A.Pai Foundation case (supra).  There

is a mistake and was apparent on the face of the record when this Court in  Brahmo

Samaj  Education  Society (supra)  observed  that  the  petitioner's  right  to  administer

includes  the  right  to  appoint  teachers  of  their  choice  from among  the  NET/SLET-

qualified  candidates.   Further,  the question of  appointment  of  teachers  is  a  larger

question which was not primarily dealt with in the said Judgment. As it is affecting

appointment of  a large number of teachers,  we  feel that the decision in  Brahmo

Samaj Education Society deserves to be reviewed and the matter requires decision of a

Constitution Bench.   

3. We  allow  these  review  petitions  accordingly  and  the  Writ  Petition  (C)

Nos.9683-9684/1983 are to be reheard by a Constitution Bench.

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4. We  make  it  clear  that  in  the  judgment  of  this  Court  in  Brahmo Samaj

Education Society & Ors.(supra) in the penultimate paragraph there was a direction to

the effect that as an interim measure till such rules are framed in terms of the order

made therein, the interim order passed by this Court on 2nd April, 1984 will continue.

Learned  counsel  appearing  for  the  respondent-Brahmo  Samaj  Education  Society

contends that so far the Commission has not given any panel of teachers since the last

four years and the institution is not in a position to appoint  any teachers.  The State

will take appropriate action in this  

regard.  We make it clear that this interim order will continue until further orders.

5. Parties  on  either  side  would  be  at  liberty  to  file  their  supplementary

affidavits within four weeks.

...............CJI. (K.G. BALAKRISHNAN)

.................J.     (P. SATHASIVAM)

.................J.     (J.M. PANCHAL)

NEW DELHI; 31ST JULY, 2008.