State of West Bengal
& Ors. Vs. Brahmo Samaj Education Society & Ors.  INSC 1269 (31
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.
Review Petitions have been filed by the State of West Bengal seeking 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,
Karnataka & Ors., reported in (2002) 8 SCC 481 and has observed in
paragraph 7 of the decision in Brahmo Samaj Education Society & Ors.(supra)
person who has qualified NET or SLET will be eligible for appointment as a
teacher in an aided institution. This is the required basic qualification 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).
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
allow these review petitions accordingly and the Writ Petition (C)
Nos.9683-9684/1983 are to be reheard by a Constitution Bench.
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.
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.
on either side would be at liberty to file their supplementary affidavits
within four weeks.