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SCOI analysis: Today, 10 judges in new constitution benches to hear important education & SLP cases

Two very important cases related to the power to appoint teachers and rules on when special leave petitions (SLPs) should be entertained, are scheduled to be heard by two Supreme Court’s constitution benches today under CJI TS Thakur’s new constitution bench schedules.

Case 2: Brahmosamaj Education Society vs State of West Bengal

The Brahmosamaj Education Society vs State of West Bengal case was referred to the constitution bench by a three-judge bench comprising justices KG Balakrishnan, P Sathasivam and JM Panchal on 31 July 2008 while hearing a review petition filed by State of West Bengal against the two Judge bench decision delivered on 5 May 2004. The 2004 judgment was delivered by the then CJI, Justice B Rajendra Babu and justice GP Mathur (the 2008 referral order is available here).

In this case, the Brahmo Samaj Education Society had challenged 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.

The petitioners contended that they had a right to appoint teachers of their choice, provided they satisfied the prescribed requisite qualification for appointment as teachers of the institution.

The review bench felt that the the two-Judge bench had erroneously observed that the petitioner’s right to administer includes the right to appoint teachers of their choice from among the qualified candidates. The question of appointment of teachers, the review bench said, is a larger question which was not primarily dealt with in that judgment.

Interestingly, in Jesus and Mary College, Delhi vs University of Delhi, decided by the Delhi high court on 30 November 2006, the question whether an aided minority institution could be compelled to constitute a selection committee in conformity with the requirement of University Ordinance was considered.

The petitioner’s counsel, Romy Chacko argued that such a restriction is violative of its fundamental right to administer its institution under Article 30(1) of the Constitution.

Relying upon the judgment of Supreme Court in Ahmedabad St. Xavier’s society vs State of Gujarat 1974 91 SCC 717 he submitted that the right to administer, amongst other things consists of the right to choose the teachers. It was said in that judgement in Paragraph 182 that the right to choose the Principal and to have the teaching conducted by the teachers appointed by the Management after an overall assessment of their outlook and philosophy are perhaps the most important facets of the right to administer an educational institution.

Therefore, the DU’s requirement of having two nominees of the VC on the Selection Committee was found unsustainable.

In N Ammad vs Manager, Emjay High School (1998) 6 SCC 674, it was held that it is for the management of a MEI to choose the modality for selecting teachers of the institution even if the institution is an aided one.

The judgment in St. Xaviers was followed by the 11-judge bench in TMA Pai (2002).

In Brahmo Samaj (2004), it was held that the mere fact that the institution received aid from the state would make no difference and thqat by itself would not justify the imposition of any restriction which could not be imposed otherwise.

In Re Kerala Education Bill, Clause 11 of the Bill applied to aided institutions and stipulated that the State Public Service Commission would prepare a list from which teachers would be selected for appointment to such schools.

The MEIs contended that this constituted an infringement of their right under Article 30(1).

The court felt that the provisions are designed to give protection and security to the ill paid teachers who are engaged in rendering service to the nation, and protect the backward classes. Thus in the Kerala Education Bill 1957, a measure of state regulation in the matter of selection of teachers and staff was held not to violate the fundamental right of the minorities under Article 30(1).

Both St. Xaviers and TMA Pai relied on the Kerala Education Bill.

In St. Xavier, the Supreme Court by a majority 7:2, held Section 33A(1)(b) of the Gujarat University Act as violative of Article 30(1).

But it was not clear whether the institution was an aided one. Both in the Kerala Education Bill and TMA Pai, a clear distinction was drawn between aided and unaided.

The Delhi high court found factual differences between St. Xavier and the case before them, and therefore, refused to straightaway to apply the judgment in St. Xaviers.

The basic approach is that in each case the provisions have to be examined independently in order to assess whether they in fact infringe the rights of MEI

The decision in TMA Pai only generally answers the question whether regulation by the State of an aided minority institution is permissible in law.

Some amount of regulation was conceded. The court held in TMA Pai that in the matter of day-to-day management like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself.

In Brahmo Samaj (2004) the Supreme Court did not consider it necessary to answer the issue whether the institution was in fact a minority institution. The University Services Commission in that case was to completely control the selection of teachers, leaving no role in it at all for the institution.

It was in those circumstances, it was observed that such a condition was not consistent with the rights of an aided institution.

TMA Pai itself does not directly deal with the issue of interference by the State with the right of a MEI to choose its teachers.

The law

The State cannot impose a condition on an aided minority institution as a pre-requisite for granting aid to it. Such a condition would violate Art.30(1).

In TMA Pai, it was held that a regulation which can be imposed on the right to administer must satisfy a dual test, namely, 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.

The burden is on the minority institution to show that the degree of control or regulation that is sought to be imposed on it is such that it altogether takes away the right of the MEI to administer it in the manner of its choosing.

This is ultimately a question of degree of control, which is likely to vary from case to case.

This case is likely to be heard today at 2pm at Court No 1 before the CJI-led constitution bench which would include, apart from CJI TS Thakur, Justice TS Thakur, justices Fakkir Mohamed Ibrahim Kalifulla, AK Sikri, SA Bobde, and R Banumathi.

Case 2: Mathai @ Joby vs George

This case was referred to the constitution bench by justices Markandey Katju and RM Lodha on 19 March 2010.

The petitioner was one of the defendants in a suit in which he had disputed the genuineness of a will dated 13 January 2006. The will was sent for expert opinion to the Forensic Science Laboratory, Thiruvananthapuram, which submitted its report to the Trial Court.

The petitioner wanted another opinion from another expert. Both the trial court and the high court rejected the prayer. He then came to the Supreme Court by filing the SLP

The Katju-Lodha bench rightly wondered how this SLP was entertained by the Supreme Court, and wanted a CB to decide in what kind of cases, SLPs should be entertained under Article 136.

Article 136 states that the Supreme Court may in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. But it does not mention as to in what kind of cases such discretion should be exercised.

The bench made it clear that Article 136 is a discretionary remedy, and the Supreme Court is not bound to interfere even if there is an error of law or fact in the impugned order.

The order indicates certain broad parameters which could be deliberated and decided by the CB

With the Central Board of Dawood Bohra Community vs State of Maharashtra having been deleted from the list as the first item, this item shown as 502 in the list is likely to be heard as the first item at 2 pm. before the Justice Anil R Dave-led constitution bench which includes justices Kurian Joseph, Shiva Kirti Singh, Adarsh Kumar Goel and Rohinton Fali Nariman at Court No 2.

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