Samaj Education Society & Ors Vs. State of West Bengal & Ors  Insc 357 (5 May 2004)
& G.P. Mathur.
RAJENDRA BABU, CJI. :
of State in the appointment of a teacher at a State aided educational
institution is the matter for settlement here.
that lead to the present case are as follows.
State of West Bengal passed the West Bengal College
Teachers (Security of Service) Act, 1975 (the Security of Service Act) and West
Bengal College Service Commission Act, 1978 (the College Service Commission
Act). Latter mainly provides for the constitution of a College Service
Commission in West
Bengal. Vide section 7
of the College Service Commission Act, the Commission is vested with the duty
to select persons for appointment to the post of teachers of a college. By
virtue of which, the power of appointment of a teacher in a college or
institution affiliated to a University in West Bengal became vested in the
Government appointed College Service Commission. Pursuant to the College Service
Commission Act, the West Bengal College Service Commission (Manner of Selection
of Persons for Appointment to the posts of Teachers including Principals)
Regulations, 1980 was also made. Appointments of teachers were made under this
Samaj Education Society / Petitioners challenge this procedure of appointing
case is that they are a religious minority and a religious denomination within
the meaning of Articles 25, 26, and 30(1) of the Constitution; that the
appointment of teachers by the College Service Commission under the College
Service Commission Act and other Orders/Rules is unconstitutional; that they
alone have the right to appoint teachers and enforce discipline amongst them;
that therefore they prayed to prohibit the State of West Bengal / Respondents from enforcing the
Security of Service Act and the College Service Commission Act.
maintained by the Respondents is that the Petitioner society does not belong to
a minority religious community; that the Institutions run by them are receiving
funds from the state coffers and the State is under an obligation to maintain a
uniform standard of education throughout the State; that the Petitioner's
demand not to abide by the recommendation of an independent statutory authority
(College Service Commission) would amount to denying opportunity of appointment
to the best available qualified persons as teachers; that therefore they prayed
to dismiss the Petition.
main question for consideration is - whether the appointment of teachers
through the selection of College Service Commission is permissible or not, in
other words, to decipher the role of State in the matter of appointment of
teachers. To establish and administer an educational institution is held to be
a right coming under Article 19(1)(g) of the Constitution as enunciated in T M
A Pai Foundation v. State of Karnataka (2002) 8 SCC 481 [at pages 533 535,
paragraphs 18 25]. According to Article 19(6) of the Constitution, the right
to establish and maintain an educational institution is subject to the
reasonable restrictions imposed by the State in the interest of general public.
At the same time, subject to public order, morality and health, every religious
denomination or any section thereof can establish and maintain educational
institutions under Article 26(a) of the Constitution. (See T M A Pai cited
supra at page 535, paragraph 26). Reading Articles 19(1)(g) and Article 26(a)
of the Constitution together, the petitioners have a right to establish and
maintain educational institutions and hence we do not think it is necessary to
decide the issue of minority / denominational status of Brahmo Samaj to decide
the issue in hand. In our view this issue does not arise in the context of
question now before us is to decide whether the appointment of teachers in an
aided institution by the College Service Commission by restricting the
Petitioner's right to appointment is a reasonable restriction in the interest
of general public or not. The Petitioner has a right to establish and
administer educational institution.
because the petitioners are receiving aid, their autonomy of administration
cannot be totally restricted and institutions cannot be treated as a government
owned one. Of course the State can impose such conditions as are necessary for
the proper maintenance of standards of education and to check
maladministration. It is stated in T M A Pai that :
giving aid to professional institutions, it would be permissible for the
authority giving aid to prescribe by rules or regulations, the conditions on
the basis of which admission will be granted to different aided colleges by
virtue of merit, coupled with the reservation policy of the State. The merit
may be determined either through a common entrance test conducted by the
university or the Government followed by counselling, or on the basis of an
entrance test conducted by individual institutions the method to be followed
is for the university or the Government to decide.
authority may also devise other means to ensure that admission is granted to an
aided professional institution on the basis of merit.
case of such institutions, it will be permissible for the Government or the
university to provide that consideration should be shown to the weaker sections
of the society." [at p. 550, para 71] "Once aid is granted to a
private professional educational institution, the Government or the State
agency, as a condition of the grant of aid, can put fetters on the freedom in
the matter of administration and management of the institution. The State,
which gives aid to an educational institution, can impose such conditions as
are necessary for the proper maintenance of the high standards of education as
the financial burden is shared by the State. The State would also be under an
obligation to protect the interest of the teaching and non-teaching staff. In
many States, there are various statutory provisions to regulate the functioning
of such educational institutions where the States give, as a grant or aid, a
substantial proportion of the revenue expenditure including salary, pay and
allowances of teaching and non-teaching staff.
would be its responsibility to ensure that the teachers working in those institutions
are governed by proper service conditions. The State, in the case of such aided
institutions, has ample power to regulate the method of selection and
appointment of teachers after prescribing requisite qualifications for the
same. Ever since, in Re. Kerala Education Bill, 1957 [1959 SCR 995] this Court
has upheld, in the case of aided institutions, those regulations that served
the interests of students and teachers. Checks on the administration may be
necessary in order to ensure that the administration is efficient and sound and
will serve the academic needs of the institutions. In other words, rules and
regulations that promote good administration and prevent maladministration can
be formulated so as to promote the efficiency of teachers, discipline and
fairness in administration and to preserve harmony among affiliated
institutions. At the same time it has to be ensured that even an aided
institution does not become a government- owned and controlled institution.
Normally, the aid that is granted is relatable to the pay and allowances of the
teaching staff. In addition, the management of the private aided institutions
has to incur revenue and capital expenses. Such aided institutions cannot
obtain that extent of autonomy in relation to management and administration as
would be available to a private unaided institution, but at the same time, it
cannot also be treated as an educational institution departmentally run by
Government or as a wholly owned and controlled government institution and interfere
with constitution of the governing bodies or thrusting the staff without
reference to management." [pp. 550, 551, para 72] "There are a large
number of educational institutions, like schools and non-professional colleges,
which cannot operate without the support or aid from the State. Although these
institutions may have been established by philanthropists or other
public-spirited persons, it becomes necessary, in order to provide inexpensive
education to the students, to seek aid from the State. In such cases, as those
of the professional aided institutions referred to hereinabove, the Government
would be entitled to make regulations relating to the terms and conditions of
employment of the teaching and non-teaching staff whenever the aid for the posts
is given by the State as well as admission procedures. Such rules and
regulations can also provide for the reasons and the manner in which a teacher
or any other member of the staff can be removed. In other words, the autonomy
of a private aided institution would be less than that of an unaided
551, para 73] But that control cannot extend to the day-to-day administration
of the institution. It is categorically stated in T M A Pai (cited supra at
page 551, paragraph 72) that the State can regulate the method of selection and
appointment of teachers after prescribing requisite qualification for the same.
Independence for the selection of teachers among
the qualified candidates is fundamental to the maintenance of the academic and
administrative autonomy of an aided institution. The State can very well
provide the basic qualification for teachers. Under the University Grants
Commission Act, 1956, the University Grants Commission (UGC) has laid down
qualifications to a teaching post in a University by passing Regulations. As
per this Regulations UGC conducts National Educational Testing (NET) for
determining teaching eligibility of candidates. UGC has also authorized
accredited States to conduct State Level Eligibility Test (SLET). Only a 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 of a teacher.
Petitioner's right to administer includes the right to appoint teachers of its
choice among the NET / SLET qualified candidates.
on behalf of the State that the appointment through College Service Commission
is to maintain the equal standard of education all through out the state of West Bengal does not impress us. The equal standard
of teachers are already maintained by the NET / SLET. Similarly, receiving aid
from State coffers can also not be treated as a justification for imposition of
any restrictions that cannot be imposed otherwise.
sides rely on the passages quoted above from the judgment in T M A Pai to
project their respective contentions.
larger Bench consisting of 11 Judges of this Court in T M A Pai has declared
what the law on the matter is, we do not want to dilute the effect of the same
by analysing various statements made therein or indulge in any dissection of
the principles underlying it. We would rather state that the State Government
shall take note of the declarations of law made by this Court in this regard
and make suitable amendments to their laws, rules and regulations to bring them
in conformity with the principles set out therein.
this view of the matter, it is unnecessary to examine whether the present rules
are valid or not. Until such time as such rules are framed in terms of the
order made by us now, the interim orders made by this Court in these
proceedings will be operative.
petitions shall stand allowed in terms of what is stated above.