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State of West Bengal and ors. Vs. Daughters of the Cross and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberAppeal No. 374 of 1978 and Matter No. 254 of 1978
Judge
Reported inAIR1984Cal384B,88CWN766
ActsEuropean (now Anglo Indian) Schools in Bengal (now West Bengal) Regulations Code, 1929 - Regulations 3 and 4; ;Constitution of India - Article 30(1)
AppellantState of West Bengal and ors.
RespondentDaughters of the Cross and ors.
Appellant AdvocateArun Prokash Chatterjee, Adv.
Respondent AdvocateSubrata Roy Chowdhury, ;Jatin Ghose, ;R.N. Jhunjhunwalla, ;P.K. Guha and ;D.R. Mukherjee, Advs.
DispositionAppeal dismissed
Cases ReferredAll Saints High School v. Government of Andhra Pradesh
Excerpt:
- .....of the constitution filed by the respondents, the daughters of the cross and the members of the governing body of st. agne's convent school.2. respondent 1, the daughters of the cross, is a society registered under the west bengal societies registration act, 1961. respondents 2 to 10 are the members of the managing committee of the daughters of the cross st. agnes's convent school, popularly known as st. agnes's convent school situate at 1, kings road, howrah. it appears that one mrs. a. augustine, respondent 11, was a teacher of the said st. agnes's convent school. she was suspended by the principal of the school on oct. 9, 1974 as she was found fighting with another teacher within the school premises. a notice dt. oct. 21, 1974 calling upon her to show cause why her services should.....
Judgment:

M.M. Dutt, J.

1. In this appeal, the appellants, the State of West Bengal and three others have challenged the propriety of the judgment of Sabyasachi Mukharji, J. making absolute the Rule Nisi issued on the application under Article 226 of the Constitution filed by the respondents, the Daughters of the Cross and the members of the Governing Body of St. Agne's Convent School.

2. Respondent 1, the Daughters of the Cross, is a Society registered under the West Bengal Societies Registration Act, 1961. Respondents 2 to 10 are the members of the Managing Committee of the Daughters of the Cross St. Agnes's Convent School, popularly known as St. Agnes's Convent School situate at 1, Kings Road, Howrah. It appears that one Mrs. A. Augustine, respondent 11, was a teacher of the said St. Agnes's Convent School. She was suspended by the Principal of the School on Oct. 9, 1974 as she was found fighting with another teacher within the school premises. A notice dt. Oct. 21, 1974 calling upon her to show cause why her services should not be terminated was issued by the Principal of the school. Pursuant to the said notice, Mrs. Augustine showed cause in writing. Thereafter, a committee consisting of two members of the Governing Body of the School gave a personal hearing to her. The Governing Body at its meeting held on Dec. 8, 1974 passed a resolution terminating the services of Mrs. Augustine by giving her three months' salary in lieu of notice. Being aggrieved by the order of termination of her service, she filed a suit in the 4th Court of the Munsif, Howrah. The learned Munsif dismissed the application of Mrs. Augustine praying for a temporary injunction restraining respondents 1 to 10 from giving effect to the order of termination. On appeal against the said order of the learned Munsif, the learned District Judge granted an injunction subject to this that Mrs. Augustine was directed not to attend the school. Thereafter, during the pendency of the said appeal and the said suit, Mrs. Augustine filed the writ petition in this Court and obtained a Rule Nisi. The Rule Nisi was finally disposed of by me directing the State of West Bengal and the Deputy Director of Public Instruction for Anglo Indian School to see that the representation submitted by Mrs. Augustine against the order of her termination of service was disposed of within two months from the date of the judgment.

3. The Deputy Director of Public Instruction, Anglo Indian Schools, West Bengal, appellant 4 by his memo dt. Nov. 1, 1977 directed the Headmistress of the school to reinstate Mrs. Augustine in her post as a teacher of the school immediately. The authorities of the school, however, did not act in accordance with the said direction of appellant 4, as a result of which he passed an order as contained in his memo dt. Jan. 5, 1978 addressed to the Headmistress of the school stopping payment of the Government dearness allowance to the school. The said memo was followed by another memo dt- Mar. 17, 1978 containing an order issued by the Deputy Secretary to the Government of West Bengal, Department of Education. The order is to the following effect:

'1. Whereas it appeals chat St. Agnes's Convent School, situated at 1, Kings Road, Howrah, has no Governing Body duly constituted in conformity with provisions of Ch. 11 of the Code of Regulations for European (now Anglo Indian) Schools in Bengal (now West Bengal), 1929.

And whereas the said School has failed to maintain proper records, to maintain the desired standard of discipline and to appoint adequate number of properly qualified teachers.

Now, therefore, the Government in the Education Department is pleased to appoint for the public interest, Shri K. M. Parvat, Asst. Inspector of Anglo Indian Schools as the Administrator of the said School to exercise the powers and to perform the duties and functions of the Governing Body and do all such things as may be considered necessary for proper functioning of the said School till such time as the Governing Body is duly constituted.

By order of the Governor

Sd/- K. P. Banerjee

Dy- Secretary to the Govt. of West

Bengal.'

On that very day that is, on Mar. 17, 1978 the said Sri Parvat, the Assistant Inspector of Anglo-Indian Schools took charge of the school as Administrator. Being aggrieved by the aforesaid orders, respondents 1 to 10 moved this Court under Article 226 of the Constitution challenging the validity thereof and obtained the Rule Nisi which, as stated earlier, has been made absolute by the learned Judge subject to some directions given by him.

4. It is not in dispute that the school was established and administered and is still run, managed and administered by the Daughters of the Cross professing Catholic faith and. accordingly, a religious minority having the fundamental right as embodied in Article 30 of the Constitution.

5. The main challenge of the respondents writ petitioners 1 to 10, was directed against the order dt. Mar, 17, 1978 of the Government of West Bengal superseding the Governing Body of the School by the appointment of an Administrator. The learned Judge has, in view of the provision of Article 30 of the Constitution, quashed the impugned orders including the said order dt. Mar. 17, 1978. Mr. Arun Prokash Chatterjee, learned Senior Standing Counsel appearing on behalf of the appellants has not been able to support the impugned order dt. Mar. 17, 1978 as also the order Dt. Jan. 5, 1978 of the Deputy Director of Public Instruction Anglo Indian Schools, West Bengal respectively superseding the Governing Body of the School by the appointment of an administrator and stopping payment of Government dearness allowance to the members of the teaching and non-teaching staff of the school. The judgment of the learned Judge quashing the said two impugned orders will, therefore, stand affirmed.

6. It is, however, vehemently urged by Mr. Chatterjee that the State Government has the right to impose regulatory measure on minority institutions and has the authority to ensure their' observance by such institutions. In this connection, it may be stated that the Government has framed a Code known as 'Code of Regulations for European (now Anglo Indian Schools in Bengal'. Resolutions and 4 of Chap. 3 of the Code provide as follows :

'3. No teacher may be dismissed either summarily or with due notice served by the Governing Body, who shall in all cases of dismissal immediately report the fact with full particulars to the Inspector. A teacher should consider himself or herself injustly dismissed shall be permitted to make a representation to the Inspector of European Schools, Bengal and the Governing Body shall in such a case differ final action until they have received from the Inspector an expression of his views.

4. The Governing Body shall immediately report to the Inspector the name of any teacher who wilfully breaks the existing written agreement.'

7. It is submitted on behalf of the appellants that Regns. 3 and 4 of Chapt. 3 of the Code are in the nature of regulatory measures and, therefore, can be enforced by the Government. The impugned order dt. Nov. 1. 1977 of the Director of Public Instruction, Anglo Indian Schools, West Bengal, directing the Headmistress of the school to reinstate Mrs. Augustine having been passed in accordance with Reg. 3 is binding on the Managing Committee of the school. Further, it is submitted that as the representation of Mrs. Augustine was considered by the Deputy Director of Public Instruction in terms of my order passed on the writ petition of Mrs. Augustine, the impugned order of reinstatement is final and conclusive and cannot be challenged in this proceeding.

8. First of all, let us consider whether the management of the school is bound by the impugned order of reinstatement of Mrs. Augustine passed by the Deputy Director of Public Instruction in terms of my order made on the writ petition of Mrs. Augustine. In my judgment, disposing of the writ petition, the fundamental right of the respondents writ petitioners, as conferred by Article 30(1) of the Constitution was not considered as no argument was advanced by either party in that regard. All that was directed in the said judgment was that as the State Government was willing to consider and dispose of the representation of Mrs. Augustine, the technical objection to the maintainability of the writ petition could not stand in the way of such disposal of the said representation. There was no direction in the said judgment that the decision of the Director of Public Instruction would be binding upon the Governing Body of the School. Therefore, my judgment cannot be relied upon for the purpose of enforcing the impugned order of reinstatement of Mrs. Augustine in her post as a teacher in the school.

9. Now the question is whether the said Code of Regulations for Anglo Indian Schools is applicable to and enforceable against St. Agnes's Convent School, admittedly a minority educational institution. It is vehemently urged by the learned Senior Standing Counsel that as the Code contains provisions by way of regulatory measures, it is both applicable to and enforceable against the school. This contention has been made by the appellants in support of the impugned order dt. Nov. 1, 1977 of the Deputy Director of Public Instruction, Anglo Indian Schools directing the reinstatement of Mrs. Augustine. It is submitted that the impugned order of reinstatement was passed by the Deputy Director of Public Instruction in accordance with the provisions of Regns. 3 and 4 of Chap. 3 of the Code, such provisions being regulatory in nature.

10. It is now well established that the linguistic and religious minorities are entitled to administer their educational institutions according to their own choice in view of the fundamental right guaranteed under Article 30(1) of the Constitution. The State Government cannot interfere with this fundamental right of the linguistic and religious minorities. This right is, however, not absolute and is not free from regulation as observed by A. N. Ray C J. in the decision of the Supreme Court in The Ahmedabad St. Xavier's College Society v. State of Gujarat. : [1975]1SCR173 . Much reliance has been placed by the learned Senior Standing Counsel on the above observation of the learned Chief Justice. It is contended by him that the Stale is always entitled to lay down rules by way of regulatory measures for the proper administration of the school. There can be no doubt that regulatory measures can be taken by the State in regard to minority institutions for the smooth and efficient running of the same, but the measures should be such as not to interfere with the administration and management of the school.

11. In Sidhrajbhai v. State of Gujarat, AIR 1963 SC 540, it has been ruled by the Supreme Court that the right established by Article 30(1) of the Constitution is intended to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their own choice and that right is intended to be effective and not to be whittled down by so-called regulatory measures. Further, it has been observed that such regulations must satisfy a dual test, the test of reasonableness, and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it. It is, therefore, apparent from the above observation of the Supreme Court that the regulations that may be laid down by the State for the minority institutions must not only stand the test of reasonableness, but must relate only to the educational character of the institutions. In other words, by imposing certain regulatory measures, the State cannot infringe or interfere with the fundamental right of religious or linguistic minorities as guaranteed by Article 30(1) of the Constitution, however reasonable such measures may be.

12. In the instant case, by Reg. 3 of Chap. 3 of the Code of Regulations for Anglo Indian Schools, the Government has constituted the -Inspector of Anglo-Indian Schools, an appellate authority against an order of the Governing Body of the School dismissing a teacher. By Regn. 4 the Inspector is again constituted the disciplinary authority in case of wilful violation of the existing agreement by any teacher. In our opinion, there can be no doubt that by Regns. 3 and 4, the- State Government has sought to whittle down the fundamental right of the Governing Body of the School under Article 30(1). The right of the minority institutions to initiate disciplinary proceedings against their teachers and other employees and to impose penalties on them is a very vital aspect of the fundamental right of the minority institutions to administer the institutions, and if such right or any part thereof is either taken away or interfered with by any rule or regulation framed by the Government and imposed on such institutions as regulatory measure, such a rule or regulation must be struck down as violative of Article 30(1) of the Constitution.

13. In this connection, we may refer to a decision of the Supreme Court in State of Kerala v. Very Rev. Mother Provincial, 0065/1970 : [1971]1SCR734 . In that case, certain provisions of the Kerala University Act, 1969 including the provisions of Sub-sections (2) and (4) of Section 56 were declared by the Supreme Court ultra vires Article 30(1) of the Constitution. Sub-sections (2) and (4) of Section 56 are as follows :

'56. Conditions of service of teachers ofprivate Colleges (1). x x

(2) No teacher of a private College shall be dismissed, removed or reduced in rank by the governing body or managing council without the previous sanction of the Vice-Chancellor or placed under suspension by the governing body or managing council for continuous period of fifteen days without such previous sanction.

(3) * * *

(4) A teacher against whom disciplinary action is taken shall have a right of appeal to the Syndicate, and the Syndicate shall have power to order reinstatement of the teacher in case.....'

14. In holding that Sub-sections (2) and (4) of Section 56 are violative of Article 30(1) of the Constitution, it has been observed by the Supreme Court that these provisions clearly take away the disciplinary action from the governing body and the managing council and confer it upon the University. In the case before us also, the Government can be said to have taken away the disciplinary action from the Governing Body of the minority institution in question by Regris. 3 and 4 of Chap. 3 of the Code of Regulations for Anglo-Indian Schools.

15. In a later decision of the Supreme Court in All Saints High School v. Government of Andhra Pradesh, : [1980]2SCR924 , the provisions of certain sections of Andhra Pradesh Recongnised Private Educational Institutions Control Act, 1975, including Sections 3(1), 3(2), 4 and 5 were challenged as ultra vires Article 30(1) of the Constitution. Section 3 (1) of the Act provides that, subject to any rule that may be made in this behalf, no teacher employed in any private educational institution shall be dismissed, removed or reduced in rank nor shall his appointment be otherwise terminated, except with the prior approval of the competent authority. Section 3(2) requires that where the proposal to dismiss, remove or reduce in rank or otherwise terminate the appointment of any teacher employed in any private educational institution is communicated to the competent authority, that authority shall approve the proposal if it is satisfied that there are adequate and reasonable grounds for the proposal. Section 4 of the Act provides that any teacher employed in a private educational institution, (a) who is dismissed, removed or reduced in rank or Whose appointment is otherwise terminated; or (b) whose pay or allowances or any of whose conditions of service are altered or interpreted to his disadvantage, may prefer an appeal to such authority or officer as may be prescribed.

16. By a majority, the Supreme Court struck down the above provisions of the said Andhra Pradesh Act as ultra vires Article 30(1) of the Constitution. Thus it is manifestly clear that the Government cannot in the shape of regulatory measure frame any rule or regulation that will take away or interfere with the right of the minority institutions to initiate disciplinary proceedings or impose penalties on their teachers or other employees according to their own rules. Such a rule or regulation will be ultra vires Article 30(1) of the Constitution. We are unable to accept the contention of the learned Senior Standing Counsel that Regns. 3 and 4 of Chap. 3 of the Code of Regulations for Anglo-Indian Schools do not interfere with or take away the right of the institution with respect of disciplinary actions against the teachers. In our opinion, Regulations 3 and 4 infringe the fundamental right of the minority institutions under Article 30(1) of the Constitution. The impugned orders have been rightly quashed by the learned judge as ultra vires Article 30(1).

17. For the reasons aforesaid, the judgment of the learned Judge is affirmed and this appeal is dismissed. There will, however, be no order as to costs.

Ajit Kumar Sengupta, J.

18. I agree.


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