CHANDANA DAS (MALAKAR) versus THE STATE OF WEST BENGAL & ORS. on 25 September 2019

[2019] 12 S.C.R. 631

CHANDANA DAS (MALAKAR)

v.

THE STATE OF WEST BENGAL & ORS.

(Civil Appeal No. 2858 of 2007 etc.)

SEPTEMBER 25, 2019

[R. F. NARIMAN, R. SUBHASH REDDY ANDSURYA KANT, JJ.]

Service Law:

Appointment – Of teachers – In minority institution– Notapproved by District Inspector of Schools on the ground that thesame was without recommendation by School Service Commissionmandated u/r. 28 of 1969 Rules – Writ petition – Single Judge ofHigh Court held that the institution being a linguistic minorityinstitution was entitled u/Art. 30 of the Constitution to appoint itsteachers – Division Bench of High Court held that since theinstitution was recognized aided institution, management wasbound to follow mandate of r. 28 of the Rules – Appeal to SupremeCourt – Difference of opinion between Judges of Supreme Court(one agreeing with opinion of Single Judge of High Court whilethe other agreeing with Division Bench of High Court) – Matterreferred to larger Bench – Held: In the facts of the case, it is made–out that the institution is a linguistic minority institution Therefore, r. 28 would not apply as the same would result in seriousinfraction of the right of the institution u/Art. 30 of the Constitution–to administer the institution with teachers of its own choice Management of Recognized Non-Government Institutions (Aidedand Unaided) Rules, 1969 – r. 28 – West Bengal Board ofSecondary Education Act, 1963 – Constitution of India – Art.30.

Constitution of India:

Art. 30 – Linguistic minority status – Determination of –Held: Where challenge is to the State law, linguistic minority statushas to be determined State-wise.

Art. 30 – Linguistic minority status – Determination of –Criteria – Held: Medium of instruction (language) followed in the

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Ainstitution would be irrelevant to discover as to whether theinstitution in question was founded by a linguistic minority for thepurpose of imparting education to members of its community.

Art. 350B – Special Officer’s Report – In respect of linguisticminority institution – Absence of– Affect on minority status ofBthe institution – Held: Absence of report of the Special Officerwould not lead to the conclusion that no linguistic minority canclaim protection as such u/Art. 30 (1) of the Constitution.

Allowing the appeals, the Court

HELD: 1. A perusal of the Management of RecognizedCNon-Government Institutions (Aided and Unaided) Rules, 1969as they stood prior to the 2008 amendment, would show that incase the provisions of Article 30 of the Constitution apply, furtheror other rules for the composition, powers, functions of themanaging committee or committees of such institutions or classDof institutions would be framed. It is admitted, that no such Ruleshave been framed under Rule 33. [Para 12] [646-C-D]

Conclusion

2. By a letter dated 19[th] April, 1976, Respondent No.4institution wrote to the Secretary, West Bengal Board ofSecondary Education asking that it may be declared as a minorityEcommunity institution and the special constitution for the samemay be approved on that basis. By a letter dated 7[th] May, 1982from the Secretary, West Bengal Board of Secondary Educationto the Respondent No.4, a special constitution of the managingcommittee of the school was set up. It is obvious on a readingFof this document that whereas Rule 6 of the Rules required onlyone representative of the Sikh community to be on theManagement Board, there are three representatives appointed.Equally, whereas Rule 6 requires that there be six guardianrepresentatives to be elected, only four are provided. Thus, itcannot be said that by acceptance of this letter, Respondent No.4Ghas, in any manner, unequivocally waived its right to be treatedas a minority institution. On the contrary, the application dated19[th] April, 1976, was to recognise it as a minority institution, andmerely because Rule 8(3) of the Rules was purportedly applied,it does not mean that the minority character of the institutionHwas not kept in mind while framing the special constitution for future management of the school. On facts, therefore, it isdifficult to appreciate how Respondent No.4 can be said to havewaived its right to be treated as a linguistic minority institutionset up by a linguistic minority, namely, the Sikhs in the State ofWest Bengal. [Paras 13 and 15] [646-E; 647-D-H; 648-A-C]

3. If Respondent No.4 is a minority institution, Rule 28 ofManagement of Recognized Non-Government Institutions(Aided and Unaided) Rules, 1969, cannot possibly apply as therewould be a serious infraction of the right of Respondent No.4to administer the institution with teachers of its choice. [Para23] [655-B-C]

Kesavananda Bharati v. State of Kerala(1973) 4 SCC225 : [1973] 0 Suppl. SCR 1 ;Ahmedabad St.Xavier’s College Society v. State of Gujarat [1975]1SCR 173 ;T.M.A. Pai Foundation v. State ofKarnataka(2002) 8 SCC 481 – followed

4. The competent authorities set up by the West BengalBoard of Secondary Education Act, 1963 do not give any powerto recognise a minority institution. Respondent No.4 was startedas a primary school by the Sikh community living in Kolkata toimpart education to their children who came from Punjab, so thatthey may learn their mother tongue and religion, ethics etc.[Para 24] [655-D-E]

N. Ammad v. Emjay High School(1998) 6 SCC 674 :[1998] 1 Suppl. SCR 453 ;Corporate EducationalAgency v. James Mathew(2017) 15 SCC 595 : [ 2017]6 SCR 498 – relied on.

5. It cannot be said that Respondent No.4 is, in anymanner, estopped from claiming its minority status on the factsof the present case. Quite apart from this, it is settled law thatthe fundamental right under Article 30 cannot be waived. [Para26] [657-G]

Olga Tellis v. Bombay Municipal Corporation (1985)3 SCC 545 : [1985] 2 Suppl. SCR 51 – followed.

K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 :[2017] 10 SCR 569 – relied on.

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A6. Article 350B of the Constitution only sets up a SpecialOfficer for linguistic minorities, to be appointed by thePresident, whose duty it is to investigate matters relating tosafeguards provided for linguistic minorities and send reportsto the President of India, which reports the President shall causeto be laid before each House of Parliament, and send to theBGovernments of the States concerned. Even a cursory readingof this Article cannot possibly lead to the conclusion that absenta report by the Special Officer, no linguistic minority can claimprotection as such under Article 30(1) of the Constitution. [Para29] [659-C]C

7. Where the challenge is to a State law, linguistic minoritystatus would have to be determined State-wise. There can beno doubt that qua the State of West Bengal, Sikhs are a linguisticminority vis-à-vis their language, namely, Punjabi, as against themajority language of the State, which is Bengali. The argumentDon behalf of the State that the school is, in fact, teaching in theHindi medium is neither here nor there. What is important isthat the fundamental right under Article 30 refers to the“establishment” of the school as a linguistic minority institutionwhich is very clear from the paragraphs 5(a) and 5(b) of letterdated 19[th] April, 1976. Therefore, the medium of instruction,Ewhether it be Hindi, English, Bengali or some other languagewould be wholly irrelevant to discover as to whether the saidschool was founded by a linguistic minority for the purpose ofimparting education to members of its community. [Paras 30 and31] [659-D-H]FD.A.V. College v. State of Punjab [1971] Supp. SCR688 ; T.M.A. Pai Foundation v. State of Karnataka(2002) 8 SCC 481 – followed.

Shiromani Gurudwara Prabandhak Committee v. ShailMittal SLP (C) No.2755/2008 – distinguished.G

Chandana Das (Malakar) v. State of West Bengal(2015) 12 SCC 140 : Bal Patil v. Union of India(2005)6 SCC 690 : [2005] 2 Suppl. SCR 459 ;BrahmoSamaj Education Society v. State of West Bengal(2004) 6 SC 224 : [ 2004] 2 Suppl. SCR 214 –Hreferred to.

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CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2858of 2007.

From the Judgment and Order dated 23.09.2004 of the HighCourt of Judicature at Calcutta in CAN No. 3863 of 2004.

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Civil Appeal No. 2859 of 2007.

Siddharth Bhatnagar, Sr. Adv., Ms. Sonia Dube, S. Chakraborty,Ms. Kanchan Yadav, Anurag Singh, Ms. Harshita Verma, Ms. SurbhiAnand, Aditya Sidhra, M/s. Legal Options, Advs. for the Appellant.

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Soumya Chakraborty, Rana Mukherjee, Sr. Advs. SuhaanMukerji, Ms. Astha Sharma, Ms. Kajal Dalal, Amit Verma, M/S. PLRChambers and Co., Ms. Daisy Hannah, Ms. Sreoshi Chatterjee,Ms. Kanika Sharma, Shekhar Kumar, Advs. for the Respondents.

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The Judgment of the Court was delivered by

R. F. NARIMAN, J.

1. These appeals have been referred to a Three Judge Bench inview of a disagreement between T.S. Thakur, J. and R. Banumathi, J., H

Areported as Chandana Das (Malakar) v. State of West Bengal(2015) 12 SCC 140. The facts that are necessary in order to decidethese appeals are set out by Thakur, J. in his judgment as follows:

“2. The appellants, it appears, were appointed as teachers ontemporary basis in what is known as Khalsa Girls High School,Paddapukur Road, Bhowanipore, Calcutta. Their appointment didnot, however, meet the approval of the District Inspector ofSchools, Calcutta, according to whom any such appointment couldbe made only on the recommendations of the School ServiceCommission established under the Rules for Management ofRecognised Non-Government Institutions (Aided and Unaided),1969 (hereinafter referred to as “the Rules”).

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3. Aggrieved by the order passed by the District Inspector, theappellants approached the High Court of Calcutta in Writ PetitionsNos. 16256 and 16255 of 2003 which were allowed by a learnedDSingle Judge of the High Court by his order dated 29-1-2004holding that the Institution in which the appellants were appointedbeing a linguistic minority institution was entitled to select andappoint its teachers. The Single Bench accordingly directed therespondents in the writ petitions to approve the appointment ofthe appellants as whole-time teachers with effect from 28-7-1999Eand release the arrears of salary and other service benefits intheir favour with effect from the said date.

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4. Aggrieved by the judgment and order of the learned SingleJudge, the State of West Bengal, Director of School EducationFand District Inspector of Schools preferred CANs Nos. 3861 and3863 of 2004 against the order passed by the Single Bench whichappeals were allowed and disposed of by a Division Bench ofthat Court by a common order dated 23-9-2004 [State of W.B.v. Sukhbindar Kaur, 2004 SCC OnLine Cal 570 : (2005) 3 CHN604]. The High Court held that since the Institution in which theGappellants were appointed was a recognised aided Institution, themanagement of the Institution was bound to follow the mandateof Rule 28 of the Rules aforementioned which permittedappointments against a permanent post only if the candidate wasrecommended for any such appointment by the School ServiceHCommission.

5. The Division Bench further held that the appellants havingbeen appointed beyond the sanctioned staff strength at therelevant point of time and dehors the Rules could not claim anyapproval in their favour. The Court noted that the directions issuedby the Director of School Education, Government of West Bengaldid not permit any appointment without the prior permission ofthe Director. No such permission had been, in the case at hand,obtained from the Director. More importantly, the Division Benchheld that since the Institution had not made any claim to its beinga minority institution it was not open to the employee writpetitioners to claim any such status on its behalf. The DivisionBench further took the view that once a minority communityapplies for a special constitution under sub-rule (3) of Rule 8 ofthe said Rules it represents to the State Government that it wasnot claiming the status of a minority institution. The Single Benchhad, therefore, fallen in error in holding that the Institution wherethe appellants worked was a minority institution or that theappointment made by such an Institution would not be regulatedby Rule 28 of the Rules mentioned above. The present appeals,as noticed above, call in question the correctness of the viewtaken by the Division Bench of the High Court.

6. The short question that falls for determination is whetherKhalsa Girls High School, Poddapukur Road, Calcutta is aminority institution, if so, whether the Institution’s right to selectand appoint teachers is in any way affected by the provisions ofthe Rules of Management of Recognised Non-GovernmentInstitutions (Aided and Unaided), 1969 framed under theprovisions of the West Bengal Board of Secondary EducationAct, 1963?

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8. The Institution’s case, on the other hand, is that the same wasand continues to be a linguistic minority institution from itsinception. The affidavit filed on behalf of the Institution tracesthe history behind the establishment of the Institution for thebenefit of Punjabi-speaking Sikhs settled in Calcutta and otherparts of West Bengal. The affidavit states that on 19-4-1976 adetailed memorandum was sent by the Institution to the Secretary,West Bengal Board of Secondary Education asking for approval AB

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Aof the special constitution for the school in terms of Rule 33 ofthe Rules mentioned above. That prayer was according to theInstitution made only because the school was a minorityeducational institution. The affidavit also relies upon recognitionof the minority status of the school by the West Bengal MinorityCommission in terms of its Order dated 6-10-1989. The affidavitBstates that minority status of the Institution continues despite thegrant sanctioned by the State which cannot carry conditions thatwould have the effect of defeating or diluting the right of minorityto establish and administer its own Institutions. It was alsocontended that Rule 33 of the Rules reserves in favour of theCState Government the power to frame further rules for certaininstitutions to which the provisions of Articles 26 and 30 of theConstitution apply. No such rules having been framed a minoritycan establish and run its institution in accordance with a specialconstitution that may be sanctioned in its favour. Rule 28 of theRules relating to the appointment of teachers in minorityDinstitutions, therefore, does not apply in the present case.”

2. The question posed by Thakur, J. in paragraph 6 of thejudgment was answered stating:

“21. It is unnecessary to multiply decisions on the subject forEthe legal position is well settled. Linguistic institution and religiousare entitled to establish and administer their institutions. Such rightof administration includes the right of appointing teachers of itschoice but does not denude the State of its power to frameregulations that may prescribe the conditions of eligibility forFappointment of such teachers. The regulations can also prescribemeasures to ensure that the institution is run efficiently for theright to administer does not include the right to maladministration.While grant-in-aid is not included in the guarantee contained inthe Constitution to linguistic and religious minorities for establishingand running their educational institutions, such grant cannot beGdenied to such institutions only because the institutions areestablished by linguistic or religious minority. Grant of aid cannot,however, be made subservient to conditions which deprive theinstitution of their substantive right of administering suchinstitutions. Suffice it to say that once Respondent 4 InstitutionHis held to be a minority institution entitled to the protection of Articles 26 and 30 of the Constitution of India the right to appointteachers of its choice who satisfy the conditions of eligibilityprescribed for such appointments under the relevant rules isimplicit in their rights to administer such institutions. Such rightscannot then be diluted by the State or its functionaries insistingthat the appointment should be made only with the approval ofthe Director or by following the mechanism generally prescribedfor institutions that do not enjoy the minority status.

22. The view taken by the Division Bench of the High Courtthat appointments of the appellants were dehors the Rulesinasmuch as they were not made by the School ServiceCommission hence did not qualify for approval, does not appearto us to be sound. The mechanism provided for makingappointments under Rule 28 has no application to minorityeducational institutions.

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24. Placed in juxtaposition to Rule 33 of the Rules extractedearlier, it is self-evident that while Rule 28 applies generally toother institutions; Rule 33 is more specific in its application tominority educational institutions covered by Article 26 or 30 ofthe Constitution. In the absence of any rules framed for suchminority educational institutions the minority educational institutionin the present case was entitled to select and appoint its teachersso long as other conditions for such appointments, namely,availability of substantive vacancies and the eligibility of thecandidates for such appointments were duly satisfied.

25. It is not, in the instant case, disputed that the appellants wereboth duly qualified for appointment as teachers in the subjectconcerned. It is also not in dispute that they have been servingfor a considerable length of time on a meagre salary which theinstitution has been paying to them in the absence of the StateGovernment recognising the appointments and releasing grant-in-aid against their posts.

26. The only other question that could possibly arise in the matterof approval of such appointments was the absence of asanctioned post as on the date the appointments were made. Itwas contended by the learned counsel for the appellants that AB

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Avacancies had subsequently arisen against which the appointmentsof the appellants could be approved and the salary payable tothem from the date of such vacancies becoming availablereleased. If that be so, we see no reason why the appointmentsof the appellants should not be approved with effect from thedate of such vacancies becoming available against which suchBappointments could be regularised. To that extent the reliefprayed for by the appellants shall be suitably moulded.”

3. Banumathi, J. delivered a separate judgment disagreeing withthese conclusions. She agreed with the Division Bench judgment of theCalcutta High Court, which had upset the Single Bench judgment ofCthat Court, and held as follows:

“34. The impugned judgment [State of W.B. v. Sukhbindar Kaur,2004 SCC OnLine Cal 570 : (2005) 3 CHN 604] of the DivisionBench of the Calcutta High Court is as under: (SukhbindarKaur case [State of W.B. v. Sukhbindar Kaur, 2004 SCCDOnLine Cal 570 : (2005) 3 CHN 604] , SCC OnLine Cal para4)

“4. … In such view of the matter, a Constitution permittedunder sub-rule (3) of Rule 8 of the said Rules cannot be inrelation to minority community institutions. That has beenEamply cleared by framing Rule 33 in the Management Ruleswhich specifically deals with institutions entitled to protectionof Articles 26 and 30. It authorises the State Governmentto make special rules for constitution of the ManagingCommittee of such institutions. The moment a minorityFcommunity applies for a special constitution under sub-rule(3) of Rule 8 of the said Rules it represents to the StateGovernment that it is not claiming the status of minoritycommunity at least at the time when such application ismade.”

GIn my considered view, the above reasoning of the Calcutta HighCourt is to be affirmed for the reasons indicated by me herein.”

4. The main grounds for disagreement were two. In paragraphs36 to 40, the learned Judge found that in the absence of any order bythe competent authority under the West Bengal Board of SecondaryHEducation Act granting minority status to the Respondent No.4 school, the said school cannot claim to be a minority institution for the purposeof Article 30 and is, therefore, bound, being an aided institution, by the1969 Rules, in particular Rule 28 thereof. The other plank of the decisionwas contained in paragraphs 43 and 51, stating that the school havingaccepted the special constitution in terms of Rule 8(3) of the Rules,the school is estopped from contending that it is a minority institutiongoverned by special rules to be framed by the State under Rule 33 ofthe Rules.

5. Shri Siddharth Bhatnagar, learned Senior Advocate appearingon behalf of the Appellants, has taken us through the impugned HighCourt judgment as well as the judgments of Thakur, J. and Banumathi,J. He also read Rules 6, 8(3), 28 and 33 of the Rules together withthe request dated 19[th] April, 1976 of the Khalsa Girls School, statingthat it was formed on behalf of the Sikh religious and linguistic minorityin the State of West Bengal and to accord it the status of a minorityinstitution. He then relied upon an order dated 7[th] May, 1982 of theWest Bengal Board of Secondary Education, in which, despite approvingof a special constitution for future management of the school, was donein deviation of Rule 6 in recognition of the fact that it was a minorityinstitution. He also brought to our notice the fact that since 2008, Rule32(c) is now substituted as follows:

“32. Rules not to apply to certain Institutions— Nothing inthese rules shall apply to - xxx xxx xxx

(c) the non-Government aided Educational Institution establishedand administered by a Minority referred to in clause (c) ofSection 2 of the West Bengal Minorities’ Commission Act, 1996(West Bengal Act XVI of 1996); xxx xxx xxx Explanation :- For removal of any doubt, it is hereby declaredthat the State Government may, for the purpose of ensuring qualityeducation, access and equity, on an application made by any non-Government aided Educational Institution referred to in clause(c), make rules under the provisions of the said Act for thecomposition, powers, functions etc of the Committee of suchInstitution;”

As a consequence, Rule 33 has been omitted.

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A6. He then took us through Section 2(c) of the West BengalMinorities’ Commission Act, 1996, which states as follows:

“2. Definitions - In this Act, unless the context otherwiserequires,- xxx xxx xxxB

(c) “Minority”, for the purpose of this Act, means a communitybased on religion such as Muslim, Christian, Sikh, Buddhist, orZoroastrian (Parsee), and includes -

(i) such other minority as the Central Government may notifyCunder clause (c) of section 2 of the National Commissionfor Minorities Act, 1992, or .

(ii) such other minority based on language within the purviewof article 29 of the Constitution of India (hereinafter referredto as the Constitution) as the State Government may, byDnotification, specify from time to time;”

On facts, he argued that it was wholly incorrect to hold that themanagement of the school had given up its right to be a minorityinstitution. He also argued, based on several judgments, that thefundamental right under Article 30 of the Constitution of India cannotbe waived. He also took us through various judgments to show thatEthough Respondent No.4 school was an aided institution, Rule 28 quaappointment of teachers would not be applicable to it as it is a minorityinstitution. He also cited judgments before us to show that it wasunnecessary to first obtain a declaration from the competent authoritythat the school is a minority institution as any such declaration wouldFonly be a recognition of a pre-existing right, if the institution was, infact, set up by the minority community for the minority community.

7. Shri Rana Mukherjee, learned Senior Advocate appearing onbehalf of Respondent No.4 school, broadly echoed Shri Bhatnagar’sarguments and also took us through the letter dated 19[th] April, 1976 toGshow that Respondent No.4 school was set up purely as a linguisticminority school in the State of West Bengal. Hence, he supported theprayer of the teachers that they be regularised against vacancies thathave since arisen.

8. Shri Soumya Chakraborty, learned Senior Advocate appearingHon behalf of the State, strongly relied upon the judgment of Banumathi,

J. and, in addition, argued that Article 350B would make it clear thatthe institution must first be declared to be a minority institution beforeit can avail of the fundamental right under Article 30. He added that inany case the medium of instruction was Hindi and, therefore, being thenational language, the institution could not be said to cater to the needsof the minority community. He also made a fervent plea to refer thematter to a larger Bench, given the fact that a Division Bench of thisCourt had in Shiromani Gurudwara Prabandhak Committee v. ShailMittal SLP (C) No. 2755/2008by an order dated 18[th] November, 2010referred a similar matter to be heard along with other matters by aConstitution Bench.

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9. Before embarking on the questions raised in these appeals, itis important to first advert to the West Bengal Board of SecondaryEducation Act, 1963. It is enough to state that this Act establishes theWest Bengal Board of Secondary Education and various Committeesand Regional Examination Councils and then lays down their powers.Suffice it to say that it is no part of the powers and duties of the Boardor of any authority set up therein to declare that a particular institutionis, or is not, a minority institution.

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10. It is now necessary to advert to the Management ofRecognised Non-Government Institutions (Aided and Unaided) Rules,1969. Rule 6 is relevant and is set out hereinbelow as follows:

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“6. Composition of the Committee of an Institution otherthan that sponsored by the State Government:

The Committee shall consist of the following members:-

(i) one founder to be chosen in the manner provided in RuleF6A;

(ii) one Life Member, if any, to be selected or nominated inthe manner laid down in Rule 6A;

(iii) six guardians of whom two shall be woman in case of aGgirls school in the case of institutions having classes XI andXII recognized by the West Bengal Council of HigherSecondary Education and/or X-Class High Schools andthree guardians in the case of Junior High Schools, to beelected or nominated, as the case may be, in the mannerlaid down in sub-rule (2) of Rule 6A;H

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(iv) one person interested in education (to be co-opted) in themanner laid down in clause (i) of sub-rule (3) of Rule 6A; A

Provided that in the case of an institution located withinthe jurisdiction of a Panchayet, one person interested ineducation shall be the nominee of the Local Panchayet Samity.BThe person so nominated shall be a resident of the locality withinthe jurisdiction of the said Panchayet Samity;

(v) three teaching staff except the Head of an Institution andone non-teaching staff in the case of an institution withHigher Secondary Classes (XI and XII) recognised by theWest Bengal Council of Higher Secondary Education and/or a X-Class High School and two members from amongthe teaching and non-teaching staff in the case of a juniorHigh School, to be elected in the manner prescribed inClause (i) of sub-rule (4) of Rule 6A; C

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(vi) one member of the Committee shall be nominated by theDirector or by an officer authorised by him in this behalf;

(vii) Head of the Institution (ex-officio).

Provided that no person shall be eligible to representmore than one category.

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Rule 8(3) is important for our purpose and states as follows:

“8. Power of Executive Committee to approve andSupersede Committee, to appoint Administrator or Ad-hocCommittee and to grant special constitution; F

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(3) Notwithstanding anything contained in these rules, theExecutive Committee shall have the power to approve, on theapplication of any Institution or class of Institutions, of the specialconstitution of a Committee in favour of such Institution or classGof Institutions and in approving the special constitution of aCommittee, the Executive Committee shall pay due regard to therecommendations of the Director, if any. While granting specialconstitution in favour of an Institution or a class of Institution,the Executive Committee shall ensure that representation of theHmembers of the teaching and the non-teaching staff, guardians and the member nominated by the Director or an officerauthorised by him in this behalf, is made according to clause (iii),clause (v) and clause (vi) of Rule 6:

Provided that if the Executive Committee is of the opinion thata school enjoying special constitution has not been functioningproperly, the Executive Committee may, after paying due regardto the recommendations of the Director, if any, amend orwithdraw such special constitution of a Committee and in thatevent, the Executive Committee may, by order, appoint anAdministrator or an Ad-hoc Committee, as the case may be, toexercise the powers and perform the functions of the Committeefor such period as may be specified in the order.”

Rule 28(1)(i), which is sought to be applied to Respondent No.4,states as follows:

“28. Powers of Committee - (1) In an aided institution theCommittee shall, subject to the provisions of any Grant-in-aidScheme or Pay Revision Scheme or any order or direction orguide-lines issued by the State Government or the Director inconnection therewith and in force for the time being, have thepower –

(i) to appoint on the recommendation of the West BengalRegional School Service Commission in respect of the regionconcerned, teachers on permanent or temporary basis againstpermanent or temporary vacancies, if and when available, withinthe sanctioned strength of teachers and on approval by theDirector or any Officer authorized by him, such approval beingsought for within a fortnight from the date of decision of thecommittee in this behalf;”

Rules 32 and 33 are also important and state as follows:

“32. Rules not to apply to certain Institutions—Nothing inthese rules shall apply to the Institutions maintained and managedby the State Government, the Union Government or the RailwayBoard or the schools managed under the provisions of the St.Thomas’ School Act, 1923, (Bengal Act XII of 1923) or to anyother Institution as may be specified by the State Governmentby order, made in this behalf from time to time.

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A33. Power of the State Government to frame further rulesfor certain Institutions—Nothing in these rules shall affect thepower of the State Government to frame, on the application ofany Institution or class of Institution to which the provisions ofArticle 26 or Article 30 of the Constitution of India may apply,further or other rules for the composition, powers, functions ofBthe Managing Committee or Committees of such Institution orclass of Institutions.”

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11. These Rules have since been amended by a notification dated29[th] August, 2008, as has been noticed hereinabove. And Rule 33 hasbeen omitted altogether.C

12. A perusal of the Rules, as they stood prior to the 2008amendment, would show that in case the provisions of Article 30 ofthe Constitution apply, further or other rules for the composition, powers,functions of the managing committee or committees of such institutionsor class of institutions would be framed. It is admitted, as has beenDnoticed in the judgment of Thakur, J. that no such Rules have beenframed under Rule 33.

13. At this juncture, it may be noted that by a letter dated 19[th]April, 1976, Respondent No.4 wrote to the Secretary, West BengalBoard of Secondary Education asking that it may be declared as aEminority community institution and the special constitution for the samemay be approved on that basis. What is of importance is what is statedin paragraph 5(a) and 5(b) of the said letter, which is set outhereinbelow:

“5. The brief History of the said Khalsa High School is as follows:-F

(a) In the year 1932 this institution was started in the shape of aKhalsa Primary School by the Sikh Community living in Calcuttato impart education to their children who came from Punjabwhere they had ample opportunities to learn their mother tongueviz: Punjabi and to impart religious, ethical and moral training inGsoothing atmosphere.

(b) Earlier to this in the year 1930, the late Reverend SantMastan Singh started a small Pathashala at 573, PaddopukurRoad, Calcutta, with about twenty children to teach them Punjabi,in Gurumukh Script. In 1932, Baba Harnam Singh Kaunka wasHmade in charge of that School which was becoming popular day by day among the Sikh Community. After some time he openeda new School at 16, Paddapukur Road, Calcutta. By this timethe population of the Sikhs was increasing in Calcutta. A largenumber of Sikh Children were facing serious difficulties in theabsence of their own proper School. The urgent need of openinga School of their own choice came to the forefront and it wasunanimously resolved by the Sikhs in a congregation to start aKhalsa Primary School without any loss of time. The social andreligious workers left no stone unturned to get a suitable buildingfor this purpose. After intense endeavours the building situatedat No. 75, Bakul Begal Road, Calcutta was acquired on rent tostart with. Thus, Khalsa Primary School was inaugurated on the1[st] November, 1933, by Sardar B.R. Singh, Head of EasternRailway. He donated a handsome amount to the School on thispious occasion. Baba Harnam Singh Kanuka threw his lot withthis venture of the Sikh Community in toto.”

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14. By a letter dated 7[th] May, 1982 from the Secretary, WestBengal Board of Secondary Education to the Respondent No.4, a specialconstitution of the managing committee of the school was set up asfollows:

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1. Representative (s) of :-

15. It is obvious on a reading of this document that whereas Rule6 required only one representative of the Sikh community to be on theManagement Board, there are three representatives appointed. Equally, H

Awhereas Rule 6 requires that there be six guardian representatives tobe elected, only four are provided for by this letter. Thus, it cannot besaid that by acceptance of this letter, Respondent No.4 has, in anymanner, unequivocally waived its right to be treated as a minorityinstitution. On the contrary, the application dated 19[th] April, 1976, wasto recognise it as a minority institution, and merely because Rule 8(3)Bof the Rules was purportedly applied, it does not mean that the minoritycharacter of the institution was not kept in mind while framing thespecial constitution for future management of the school. On facts,therefore, it is difficult to appreciate how the Respondent No.4 can besaid to have waived its right to be treated as a linguistic minorityCinstitution set up by a linguistic minority, namely, the Sikhs in the Stateof West Bengal.16. It is important at this juncture to first set out Article 30 ofthe Constitution of India. Article 30(1) states:

“30. Right of minorities to establish and administerDeducational institutions -

(1) All minorities, whether based on religion or language, shallhave the right to establish and administer educational institutionsof their choice.”

E17. The historical reasons for enacting Article 30(1) have beenset out in some detail in the judgment of Shelat, J. and Grover, J. inKesavananda Bharati v. State of Kerala (1973) 4 SCC 225 asfollows:

“535-A - It may be recalled that as regards the minorities theFCabinet Mission had recognised in their report to the BritishCabinet on May 6, 1946 only three main communities; general,Muslims and Sikhs. General community included all those whowere non- Muslims or non-Sikhs. The Mission had recommendedan Advisory Committee to be set up by the Constituent Assemblywhich was to frame the rights of citizens, minorities, tribals andGexcluded areas. The Cabinet Mission statement had actuallyprovided for the cession of sovereignty to the Indian peoplesubject only to two matters which were: (1) willingness toconclude a treaty with His Majesty’s Government to covermatters arising out of transfer of power and (2) adequateHprovisions for the protection of the minorities. Pursuant to the above and paras 5 and 6 of the Objectives Resolution theConstituent Assembly set up an Advisory Committee on January24, 1947. The Committee was to consist of representatives ofmuslims, the depressed classes or the scheduled castes, the Sikhs,Christians, Parsis, Anglo-Indians, tribals and excluded areasbesides the Hindus. As a historical fact it is safe to say that at ameeting held on May 11, 1949 a resolution for the abolition of allreservations for minorities other than the scheduled castes foundwhole hearted support from an overwhelming majority of themembers of the Advisory Committee. So far as the scheduledcastes were concerned it was felt that their peculiar position wouldnecessitate special reservation for them for a period of ten years.It would not be wrong to say that the separate representation ofminorities which had been the feature of the previousConstitutions and which had witnessed so much of communaltension and strife was given up in favour of joint electorates inconsideration of the guarantee of fundamental rights andminorities’ rights which it was decided to incorporate into the new”Constitution.

(Emphasis supplied)

18. This was further fleshed out in the judgment of Khanna, J.in Ahmedabad St. Xavier’s College Society v. State of Gujarat(1975) 1 SCR 173 as follows:

“Before we deal with the contentions advanced before us andthe scope and ambit of Article 30 of the Constitution, it may bepertinent to refer to the historical background. India is the second-most populous country of the world. The people inhabiting thisvast land profess different religions and speak differentlanguages. Despite the diversity of religion and language, thereruns through the fabric of the nation the golden thread of a basicinnate unity. It is a mosaic of different religions, languages andcultures. Each of them has made a mark on the Indian polityand India today represents a synthesis of them all. The closingyears of the British rule were marked by communal riots anddissensions. There was also a feeling of distrust and the demandwas made by a section of the Muslims for a separate homeland.This ultimately resulted in the partition of the country. Those wholed the fight for independence in India always laid great stress AB

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on communal amity and accord. They wanted the establishmentof a secular State wherein people belonging to the differentreligions should all have a feeling of equality and non-discrimination. Demand had also been made before the partitionby sections of people belonging to the minorities for reservationof seats and separate electorates. In order to bring aboutintegration and fusion of the different sections of the population,the framers of the Constitution did away with separate electoratesand introduced the system of joint electorates, so that everycandidate in an election should have to look for support of allsections of the citizens. Special safeguards were guaranteed forthe minorities and they were made a part of the fundamental rightswith a view to instil a sense of confidence and security in theminorities. Those provisions were a kind of a Charter of rightsfor the minorities so that none might have the feeling that anysection of the population consisted of first-class citizens and theothers of second-class citizens. The result was that minoritiesgave up their claims for reservation of seats.

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A liberal, generous and sympathetic approach is reflected in theConstitution in the matter of the preservation of the right ofEminorities so far as their educational institutions are concerned…The minorities are as much children of the soil as the majorityand the approach has been to ensure that nothing should be doneas might deprive the minorities of a sense of belonging, of afeeling of security, of a consciousness of equality and of theFawareness that the conservation of their religion, culture, languageand script as also the protection of their educational institutionsis a fundamental right enshrined in the Constitution. The samegenerous, liberal and sympathetic approach should weigh withthe courts in construing Articles 29 and 30 as marked thedeliberations of the Constitution-makers in drafting those articlesGand making them part of the fundamental rights. The safeguardingof the interest of the minorities amongst sections of populationis as important as the protection of the interest amongstindividuals of persons who are below the age of majority or areotherwise suffering from some kind of infirmity. The Constitutionand the laws made by civilised nations, therefore, generally E

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contain provisions for the protection of those interests. It can,indeed, be said to be an index of the level of civilisation andcatholicity of a nation as to how far their minorities feel secureand are not subject to any discrimination or suppression.”

(Emphasis supplied)

19. This was reiterated in the concurring judgment of Quadri, J.in T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481as follows:

“301. …The founding fathers of the Constitution were alive tothe ground realities and the existing inequalities in various sectionsof the society for historical or other reasons and provided forprotective discrimination in the Constitution with regard towomen, children, socially and educationally backward classes ofcitizens, Scheduled Castes and Scheduled Tribes by enabling theState to make special provision for them by way of reservationas is evident from clauses (3) and (4) of Article 15 and clauses(4) and (4-A) of Article 16 of the Constitution. The apprehensionsof religious minorities and their demand for separate electorates,were settled by providing freedom of conscience and freeprofession, practise and propagation of religion for all the citizensunder Articles 25, 26 and 28 which take care of the religious rightsof minorities equally; by special provisions their right to conservea distinct language, script or culture is guaranteed as afundamental right in Article 29; further, all minorities, whetherbased on religion or language, are conferred an additionalfundamental right to establish and administer educationalinstitutions of their choice as enshrined in Article 30 of theConstitution. The right under Article 30(1) is regarded sosacrosanct by Parliament in its constituent capacity that whenby operation of the law of the land — Land Acquisition Act —compensation awarded for acquisition of a minority educationalinstitution was to result in restricting or abrogating the rightguaranteed under clause (1) of Article 30, it by the Constitution(Forty-fourth) Amendment Act inserted clause (1-A) in Article30. It provides that Parliament in the case of a Central legislationor a State Legislature in the case of State legislation shall makea specific law to ensure that the amount payable to the minorityeducational institutions for the acquisition of their property will A

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Anot be such as will in any manner impair their functioning. AConstitution Bench of this Court in interpreting clause (1-A) ofArticle 30 in Society of St. Joseph’s College v. Union of India[(2002) 1 SCC 273] observed thus: (SCC p. 278, para 7)

“7. Plainly, Parliament in its constituent capacity apprehended thatBminority educational institutions could be compelled to close downor curtail their activities by the expedient of acquiring theirproperty and paying them inadequate amounts in exchange. Toobviate the violation of the right conferred by Article 30 in thismanner, Parliament introduced the safeguard provision in theConstitution, first in Article 31 and then in Article 30.”C

20. The Nine Judge Bench in St. Xavier’s (supra), by a majorityof 7:2, held that Section 33-A(1)(b) of the Gujarat University Act, 1949as amended by the Gujarat University (Amendment) Act, 1972, wouldnot apply to minority institutions. Section 33-A(1)(b) of the said Act isset out as follows:D

“33-A. (1) Every college (other than a Government college or acollege maintained by the Government) affiliated before thecommencement of the Gujarat University (Amendment) Act,1972 (hereinafter in this section referred to as ‘suchcommencement’)—

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(b) that for recruitment of the Principal and members of theteaching staff of a college there is a selection committee of thecollege which shall include—

F(1) in the case of recruitment of the Principal, a representativeof the University nominated by the Vice-Chancellor, and

(2) in the case of recruitment of a member of the teaching staffof the college, a representative of the University nominated bythe Vice-Chancellor and the Head of the Department, if any,Gconcerned with the subject to be taught by such member.”

21. Ray, C.J. adverted to the aforesaid provision and stated thatat the core of the fundamental right of Article 30 is the right toadminister which includes the right of the minority institutions to chooseits teachers (see pages 194 and 196). Having held this, the learned ChiefHJustice set out the argument of the Intervenors thus:

“The provisions contained in Section 33-A(1)(b) of the Act werenot challenged by the petitioners. The interveners challengedthose provisions. The settled practice of this Court is that anintervener is not to raise contentions which are not urged by thepetitioners. In view of the fact that notices were given to minorityinstitutions to appear and those institutions appeared and madetheir submissions a special consideration arises here forexpressing the views on Section 33-A(1)(b) of the Act. Theprovisions contained in Section 33-A(1)(b) of the Act are thatfor the recruitment of the Principal and the members of theteaching staff of a college there is a selection committee of thecollege which shall consist, in the case of the recruitment of aPrincipal, of a representative of the university nominated by theVice-Chancellor and, in the case of recruitment of a member ofthe teaching staff of the college, of a representative of theuniversity nominated by the Vice-Chancellor and the Head of theDepartment if any for subjects taught by such persons. Thecontention of the interveners with regard to these provisions isthat there is no indication and guidance in the Act as to whattypes of persons could be nominated as the representative. It wassuggested that such matters should not be left to unlimited poweras to choice. The provisions contained in Section 33-A(1)(b)cannot therefore apply to minority institutions.”

This argument was accepted stating that the said Section cannot,therefore, be applied to minority institutions as it would otherwise violatethe fundamental right contained in Article 30(1).

22. This view was concurred in by Khanna, J. as follows:

“Another conclusion which follows from what has beendiscussed above is that a law which interferes with a minority’schoice of qualified teachers or its disciplinary control overteachers and other members of the staff of the institution is voidas being violative of Article 30(1). It is, of course, permissiblefor the State and its educational authorities to prescribe thequalifications of teachers, but once the teachers possessing therequisite qualifications are selected by the minorities for theireducational institutions, the State would have no right to veto theselection of those teachers. The selection and appointment ofteachers for an educational institution is one of the essential ABC

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Aingredients of the right to manage an educational institution andthe minorities can plainly be not denied such right of selectionand appointment without infringing Article 30(1). In the case ofRev. Father W. Proost this Court while dealing with Section 48-A of the Bihar Universities Act observed that the said provisioncompletely took away the autonomy of the governing body ofBthe college and virtually vested the control of the college in theUniversity Service Commission. The petitioners in that case were,therefore, held entitled to the protection of Article 30(1) of theConstitution. The provisions of that section have been referredto earlier. According to the section, subject to the approval ofCUniversity appointment, dismissals, removals, termination ofservice or reduction in rank of teachers of an affiliated collegenot belonging to the State Government would have to be madeby the governing body of the college on the recommendation ofthe University Service Commission. The section further providedthat the said Commission would be consulted by the governingDbody of a college in all disciplinary matters affecting teachers ofthe college and no action would be taken against or anypunishment imposed upon a teacher of a college otherwise thanin conformity with the findings of the Commission.”

Likewise, Jagan Mohan Reddy, J. also held Section 33-A(1)(b)Einapplicable to minority institutions. The concurring judgment of Mathew,J. and Chandrachud, J. agreed with the learned Chief Justice that theaforesaid provision could not possibly apply to a minority institution asfollows:

“It is upon the principal and teachers of a college that the toneFand temper of an educational institution depend. On them woulddepend its reputation, the maintenance of discipline and itsefficiency in teaching. The right to choose the principal and tohave the teaching conducted by teachers appointed by themanagement after an overall assessment of their outlook andGphilosophy is perhaps the most important facet of the right toadminister an educational institution. We can perceive no reasonwhy a representative of the University nominated by the Vice-Chancellor should be on the Selection Committee for recruitingthe Principal or for the insistence of head of the departmentHbesides the representative of the University being on the Selection Committee for recruiting the members of the teaching staff. Solong as the persons chosen have the qualifications prescribed bythe University, the choice must be left to the management. Thatis part of the fundamental right of the minorities to administerthe educational institution established by them.”

23. A reading of the aforesaid judgment would leave no mannerof doubt that if Respondent No.4 is a minority institution, Rule 28 ofthe Rules for Management of Recognized Non-Government Institutions(Aided and Unaided) 1969, cannot possibly apply as there would be aserious infraction of the right of Respondent No.4 to administer theinstitution with teachers of its choice.

24. We now go to the question as to whether it is necessary thatthere be a declaration as to status of the minority institutions by thecompetent authority under the West Bengal Board of SecondaryEducation Act, 1963 before it can claim the status of being a minorityinstitution. We have already noticed that the competent authorities setup by the aforesaid Act do not give any power to recognise a minorityinstitution. For this reason, it is difficult to agree with the conclusionstated in paragraph 40 of judgment of Banumathi, J. Further, the letterdated 19[th] April, 1976 would show that Respondent No.4 was startedas a primary school by the Sikh community living in Kolkata to imparteducation to their children who came from Punjab, so that they maylearn their mother tongue and religion, ethics etc. As a matter of fact,this aspect of the matter is no longer res integra.

25. In N. Ammad v. Emjay High School (1998) 6 SCC 674,this Court held:

25. In N. Ammad v. Emjay High School (1998) 6 SCC 674,this Court held:

“12. Counsel for both sides conceded that there is no provisionin the Act which enables the Government to declare a school asa minority school. If so, a school which is otherwise a minorityschool would continue to be so whether the Government declaredit as such or not. Declaration by the Government is at best onlya recognition of an existing fact. Article 30(1) of the Constitutionreads thus:

“30. (1) All minorities, whether based on religion or language,shall have the right to establish and administer educationalinstitutions of their choice.”

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A13. When the Government declared the School as a minorityschool it has recognised a factual position that the School wasestablished and is being administered by a minority community.The declaration is only an open acceptance of a legal characterwhich should necessarily have existed antecedent to suchdeclaration. Therefore, we are unable to agree with theBcontention that the School can claim protection only after theGovernment declared it as a minority school on 2-8-1994.”

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This statement of the law was then followed by CorporateEducational Agency v. James Mathew (2017) 15 SCC 595 asfollows:C

“7. As far as the validity of the declaration of minority status isconcerned, this Court in N. Ammad v. Emjay High School [N.Ammad v. Emjay High School, (1998) 6 SCC 674 : 1 SCEC732] has held that the certificate of the declaration of minoritystatus is only a declaration of an existing status. Therefore, thereDis no question of availability of the status only from the date ofdeclaration. What is declared is a status which was already inexistence.

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E10. Chapter IV deals with functions and powers of theCommission. Under Section 11(f), the Commission has beenvested with the power rather the mandate to decide all questionsrelating to the status of any institution as a minority educationalinstitution and declare its status as such. Section 11 of the Act isquoted hereunder:F

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“11. Functions of Commission.—Notwithstanding anythingcontained in any other law for the time being in force, theCommission shall—

(a) advise the Central Government or any State GovernmentGon any question relating to the education of minorities thatmay be referred to it; (b) enquire, suo motu, or on a petition presented to it by anyminority educational institution, or any person on its behalfinto complaints regarding deprivation or violation of rightsHof minorities to establish and administer educational institutions of their choice and any dispute relating toaffiliation to a University and report its finding to theappropriate Government for its implementation; A

(c) intervene in any proceeding involving any deprivation orviolation of the educational rights of the minorities before acourt with the leave of such court;B

(d) review the safeguards provided by or under the Constitution,or any law for the time being in force, for the protection ofeducational rights of the minorities and recommendmeasures for their effective implementation; C

(e) specify measures to promote and preserve the minoritystatus and character of institutions of their choice establishedby minorities; (f) decide all questions relating to the status of anyinstitution as a minority educational institution andDdeclare its status as such; (g) make recommendations to the appropriate Government forthe effective implementation of programmes and schemesrelating to the minority educational institutions; and (h) do such other acts and things as may be necessary,incidental or conducive to the attainment of all or any ofthe objects of the Commission.”

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11. Therefore, after the introduction of the National Commissionfor Minority Educational Institutions Act, 2004, it is also withinthe jurisdiction and mandate of the National Commission to issuethe certificate regarding the status of a minority educationalinstitution. Once the Commission thus issues a certificate, it is adeclaration of an existing status.”

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26. We have held that it cannot be said that Respondent No.4is, in any manner, estopped from claiming its minority status on the factsof this case. Quite apart from this, it is settled law that the fundamentalright under Article 30 cannot be waived (See St. Xavier’s (supra) atpages 260 to 262 per Mathew, J.; Olga Tellis v. Bombay MunicipalCorporation, (1985) 3 SCC 545 and 569 to 571.) In the recent H

Ajudgment in K.S. Puttaswamy v. Union of India (2017) 10 SCC 1,Chandrachud, J. has echoed this sentiment as follows:

“126. In Behram Khurshid Pesikaka v. State of Bombay (1955)1 SCR 13: AIR 1955 SC 123 : 1955 Cri LJ 215, Mahajan, C.J.speaking for the Constitution Bench, noted the link between theBconstitutional vision contained in the Preamble and the positionof the fundamental rights as a means to facilitate its fulfilment.Through Part III embodies fundamental rights, this was construedto be a part of the wider notion of securing the vision of justiceof the Founding Fathers and, as a matter of doctrine, the rightsCguaranteed were held not to be capable of being waived.Mahajan C.J., observed (AIR p. 146, para 52 : SCR pp. 653-54)

“52. …We think that the rights described as fundamentalrights are a necessary consequence of the declaration in theDPreamble that the people of India have solemnly resolvedto constitute India into a sovereign democratic republic andto secure to all its citizens justice, social, economic andpolitical; liberty of thought, expression, belief, faith andworship; equality of status and of opportunity.

EThese fundamental rights have not been put in the Constitutionmerely for individual benefit, though ultimately they come intooperation in considering individual rights. They have been put thereas a matter of public policy and the doctrine of waiver can haveno application to provisions of law which have been enacted asa matter of constitutional policy” “F

27. This being the law laid down by this Court, it is clear thatboth the reasons given by Banumathi, J. cannot be said to be correct,as per the law laid down by this Court.

28. Shri Chakraborty, learned Senior Advocate appearing onGbehalf of the State, raised an argument based on Article 350B. Thesaid Article reads as follows:

“350B.Special Officer for Linguistic Minorities

(1) There shall be a Special Officer for linguistic minorities toHbe appointed by the President.

(2) It shall be the duty of the Special Officer to investigate allmatters relating to the safeguards provided for linguistic minoritiesunder this Constitution and report to the President upon thosematters at such intervals as the President may direct, and thePresident shall cause all such reports to be laid before eachHouse of Parliament, and sent to the Governments of the Statesconcerned.”

29. This Article only sets up a Special Officer for linguisticminorities, to be appointed by the President, whose duty it is toinvestigate matters relating to safeguards provided for linguisticminorities and send reports to the President of India, which reports thePresident shall cause to be laid before each House of Parliament, andsend to the Governments of the States concerned. Even a cursoryreading of this Article cannot possibly lead to the conclusion that absenta report by the Special Officer, no linguistic minority can claim protectionas such under Article 30(1) of the Constitution.

30. In point of fact, in D.A.V. College v. State of Punjab (1971)Supp. SCR 688, this Court held that where the challenge is to a Statelaw, linguistic minority status would have to be determined State-wise(see page 696). This view has been reiterated by the Eleven JudgeBench in T.M.A. Pai Foundation (supra) (see pages 552, 553 and587).

31. There can be no doubt that qua the State of West Bengal,Sikhs are a linguistic minority vis-à-vis their language, namely, Punjabi,as against the majority language of the State, which is Bengali. Theargument of the learned counsel appearing on behalf of the State thatthe school is, in fact, teaching in the Hindi medium is neither here northere. What is important is that the fundamental right under Article 30refers to the “establishment” of the school as a linguistic minorityinstitution which we have seen is very clearly the case, given paragraphs5(a) and 5(b) of letter dated 19[th] April, 1976. Therefore, the mediumof instruction, whether it be Hindi, English, Bengali or some otherlanguage would be wholly irrelevant to discover as to whether the saidschool was founded by a linguistic minority for the purpose of impartingeducation to members of its community. This argument also, therefore,must be rejected.

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A32. Seeing the writing on the wall, the learned Senior Advocateappearing for the State made a fervent plea that we should refer thismatter to the Constitution Bench, following the order in ShiromaniGurudwara Prabandhak Committee (supra) dated 18[th] November,2010.

B33. This matter arose out of a judgment of the High Court ofPunjab and Haryana dated 17[th] December, 2007, as per which twonotifications were issued under the Punjab Private Health SciencesEducational Institutions (Regulation of Admission, Fixation of Fee andMaking of Reservation) Act, 2006, by which the aforesaid Sikhinstitutions were declared to be minority institutions within the State ofCPunjab. The High Court had held, following this Court’s judgment inBal Patil v. Union of India (2005) 6 SCC 690, that the Sikhs were,in fact, population-wise the majority community in the State of Punjab,as a result of which the two notifications were struck down as beingviolative of Article 14 of the Constitution of India. It is in this backdrop Dthat, by an order dated 18[th] November, 2010, a Division Bench of thisCourt referred this matter to be heard along with other matters by aConstitution Bench. The other matter concerned Brahmo SamajEducation Society v. State of West Bengal, (2004) 6 SC 224, inwhich a review petition was allowed and directed to be heard by aConstitution Bench. In the aforesaid case, the challenge that was raisedEwas grounded on Article 19(1)(g) of the Constitution of India and wasnot directly related to Article 30 of the Constitution of India. Obviously,this reference order is on different facts and would not avail therespondent State in the present case.

34. As a result, we are of the view that the judgment of Thakur,FJ. is correct in law. Consequently, the judgment and order of the learnedSingle Judge of the Calcutta High Court is correct, and that of theDivision Bench of the Calcutta High Court is set aside. The appealsare, accordingly, allowed with no order as to costs.

GKalpana K. Tripathy

Appeals allowed.

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