Murahari Sri Raman, J.-
THE PRAYER FOR RELIEF:
1. Assailing Judgment dated 02.05.2023 delivered by learned Single Judge in W.P.(C) No.34817 of 2022 holding that the Secretary, Cuttack Christian Education Board-appellant was not competent to direct the respondent No.1, Headmaster of Christ Collegiate School, Cuttack, to handover charge to Assistant Teacher of the School on 11.10.2022 by putting him under suspension vide Letter No. CCEB 2021-24, dated 11.10.2022 and furnish statement of defence against the charges framed against him vide Letter No.CCEB 2021-24, 01.12.2022, this present writ appeal has been preferred beseeching the following relief(s):
“It is therefore prayed that this Hon9ble Court may graciously be pleased to admit the writ appeal, issue notice to the respondents and after hearing the parties, may further be pleased to set aside the impugned Judgment dated 02.05.2023 passed in W.P.(C) No. 34817 of 2022 and accordingly, dismiss the said writ petition and / or may be pleased to pass such other or further order(s), as it may deem fit and proper in the facts and circumstances of the case.
And, for this act of kindness the appellant as in duty bound shall ever pray.”
1.1. Main thrust of allegation of the appellant is that while assailing the authority of the appellant (opposite party No.5 in the writ petition), to place the respondent No.1 (writ petitioner) under suspension and also drawing disciplinary proceeding against him, the latter deliberately did not disclose the material fact that on 25.05.2019, i.e., the date on which he was appointed as the Headmaster in-charge of the Christ Collegiate School, Cuttack, pursuant to decision of the appellant- Cuttack Christian Education Board (abbreviated as “CCEB”) and that he had also submitted his joining report before the appellant.
FACTS ADUMBRATED BY THE APPELLANT:
2. Shorn off unnecessary factual details as adumbrated by the appellant, suffice it to narrate the particulars herein infra.
2.1. The respondent No.1 became the Headmaster in-charge of the School in 2019. The respondent No.1 specifically asserted that Christ Collegiate School, Cuttack is a Minority managed Educational Institution (“MEI” for brevity) receiving the Grant-in-Aid and the service condition of the employees of the school is governed by the Odisha Education (Minority Managed Aided Educational Institutions Employees Method of Recruitment and Conditions of Service) Order, 2003, as contained in the School and Mass Education Department Resolution No.58314XIVE/Codes-25/ 2002/SME, dated 28.02.2003 published in the Extraordinary issue of Odisha Gazette No.344, dated 04.03.2003 (hereinafter referred to as “the Order, 2003”, for the sake of brevity) and in terms of said Order, 2003, the Managing Committee is competent to take disciplinary action against its employees.
2.2. The respondent No.1 further asserted that the Managing Committee of the School was reconstituted as provided under Rule 28(1) of the Odisha Education (Establishment, Recognition and Management of Private High School) Rules, 1991 (be called hereinafter as “the Rules, 1991”, for convenience) and was approved by the respondent No. 4-District Education Officer, Cuttack, on 16.02.2022, having its tenure for a period of three years. Therefore, the impugned order of suspension under Annexure-4 as well as the initiation of disciplinary proceeding under Annexure-6 to the writ petition by the appellant cannot be sustained in the eye of law.
2.3. The appellant in the writ petition answered the stand of the respondent No.1 by refuting that there is no basis to say that the Managing Committee was approved under Rule 28(1) of the Rules, 1991 in respect of a minority institution inasmuch as no such notification has been made by the State Government in terms of the proviso to Section 2 of the Odisha Education Act, 1969, to apply any of the provisions of the Act and as per Section 2, the said Act does not apply to educational institution established and administered by minorities having right under Clause (1) of Article 30 of the Constitution of India, 1950. Thus, the Odisha Education Act, 1969 and the Rules framed thereunder, including the Rules, 1991, do not have any application to the Christ Collegiate School, Cuttack.
2.4. It was further asserted by the appellant that the Managing Committee is apparently not reconstituted as indicated in Rule 28(1) of the Rules, 1991. Rule 27(1) of the Rules, 1991 provides that the outgoing Managing Committee would propose for the reconstitution of the Managing Committee, at least 90 days prior to expiry of its term. As per Rule 27(5) of the Rules, 1991, only on receipt of the approval of the Managing Committee by the prescribed authority, the President and the Secretary of the Managing Committee are to be elected from amongst the members in its first meeting and the result thereof is to be intimated to the prescribed authority under Rule 27(6) of the Rules, 1991. Thereafter, the charges are required to be handed over in the manner prescribed.
2.5. So far as the Christ Collegiate School, Cuttack is concerned, the Managing Committee was constituted by the appellant-society, which runs the subject-School as per Rule 1(III) of Appendix ‘B’ relating to the Rules of Business of the Managing Committee of the Christ Collegiate School appended to the Bye-law or its constitution. The Secretary of the Managing Committee of the Christ Collegiate School, Cuttack was unanimously elected in its Annual General Board held on 19.11.2021. The respondent No.3-Director of Secondary Education, by letter No. 22527, dated 31.12.2021 furnished the proposal for the approval of the Managing Committee to the Director of Secondary Education, mentioning that “Christ Collegiate School is a Minority Managed School and Governed by the Cuttack Christian Education Board”.
2.6. The principal grievance of the appellant even though the learned Single Judge noted that it is not in dispute that the Christ Collegiate School is a minority managed aided educational institution, he proceeded to hold that in absence of a certificate issued by the National Minority Commission, the claim of the appellant that it is a minority institution and that it is competent to take action against the respondent No.1 cannot be accepted. However, applying the provisions contained in the Order, 2003, the learned Single Judge was pleased to hold that the appellant is not competent to take action against the Headmaster in-charge of the School. It is, in this regard, contended by the appellant- CCEB that while Clause 3(e) of Appendix ‘B’, relating to the Rules of Business of the Managing Committee of the Christ Collegiate School appended to the Bye-law or its constitution, authorises the Managing Committee to appoint and terminate the services of members of staff except the Headmaster and to take disciplinary measure against them on the report of the Secretary and the Headmaster, Clause 4(j) empowers the Secretary to appoint, suspend, punish and terminate the service of clerical staff and servants of the School to take disciplinary action against them and to grant leave other than casual leave to such employees in consultation with the Headmaster. So far as the Headmaster of the Christ Collegiate School is concerned, the same has been laid down in Clause 6 under Appendix ‘B’.
2.7. In this intra-Court appeal filed at the instance of the opposite party No.5 to the writ petition, appellant in the present appeal, i.e., CCEB, made statement that the fallacy in the Judgment dated 02.05.2023 of the learned Single Judge is manifest as there has been error of interpretation of provision and the observation made in the said Judgment runs counter to the avowed provisions of Article 30 of the Constitution of India read with the norms set forth in St. Catherine Girls’ High School Vrs. State of Odisha, 2002 (Supp.) OLR 452. Expanding further the appellant has put forth that the Christ Collegiate School, Cuttack, being a Minority Educational Institution, is protected under Article 30 of the Constitution of India and even though the service condition of the employees is subjected to the Order, 2003, it would apply to the extent it does not infringe the rights of the minorities to administer the School. In furtherance thereto, the Headmaster of the School is appointed by Executive Committee of the Cuttack Christian Education Board, which determines the terms and conditions of service of the Headmaster in view of Clause 6 specified in Appendix 8B9, relating to the Rules of Business of the Managing Committee of the Christ Collegiate School appended to the Bye-law or its constitution. It has conspicuously been discarded from consideration while delivering Judgment in the writ application filed at the instance of the respondent No.1 (petitioner in writ petition) that he has suppressed the pertinent fact that he (respondent No.1) was appointed as a Headmaster in-charge by the appellant-society and he had submitted his joining report to the appellant-Cuttack Christian Education Board, which is the Apex Body in the management and administration of the Christ Collegiate School, a minority institution established in the year 1883.
2.8. It is, therefore, fervently craved by the appellant to set aside the Judgment dated 02.05.2023 and, as a consequence thereof, dismiss the writ petition as laid by the respondent No.1.
3. As the respondent No.1 was on caveat, copy of the writ appeal was served on the counsel for said respondent on 06.06.2023. However, no response has been filed to justify its claim as made in the writ petition.
4. Similarly, the counsel for respondent No.5-Managing Committee was served with copy of the writ appeal in compliance of Order dated 07.11.2023 of this Court, yet he did not prefer to place any answer on record.
HEARING OF WRIT APPEAL BEFORE THIS COURT:
5. This writ appeal being based on narrow compass as to whether the Judgment dated 02.05.2023 can withstand test of just approach in terms of provisions contained in the Odisha Education (Minority Managed Aided Educational Institutions Employees’ Method of Recruitment and Conditions of Service) Order, 2003 vis-à-vis Appendix 8B9, relating to the Rules of Business of the Managing Committee of the Christ Collegiate School appended to the Bye-law, on the premise of undisputed fact that the “Christ Collegiate School is a minority managed aided educational institution”, on the consent of counsel for respective parties the matter is taken up for final hearing at the stage of admission. The counsel for the parties submitted that the pleadings before the writ court would suffice to address the issue raised in the present case and there is no separate pleading necessary in respect of question of law raised in the present intra-Court appeal. This Court heard Sri Susanta Kumar Dash, learned Advocate for the appellant (opposite party No.5 in the writ petition); Sri Durgesh Narayan Rath, learned Advocate for the respondent No.1 (writ petitioner); Sri Rabi Narayan Mishra, learned Additional Government Advocate for the respondent Nos.2 to 4; and Sri Sameer Kumar Das, learned Advocate for the respondent No.5.
SUBMISSIONS AND ARGUMENTS OF RESPECTIVE PARTIES:
6. Sri Susanta Kumar Dash, learned Advocate submitted that evidently the order of suspension revealed that another teaching staff was appointed as the Headmaster in-charge in place of the respondent No.1 and he also took over the charge. Nevertheless, the learned Single Judge proceeded as if the respondent No.1 is continuing as the Headmaster in-charge of the School. By observing thus, he held that after the commencement of the National Commission for Minority Educational Institutions Act, 2004 (“NCMEI Act”, for short), the School was required to make an application before the said Commission, seeking a declaration that it is a Minority Managed Educational Institution. As no such document was produced by the appellant, the stand taken by the appellant that the School is a Minority Managed Educational Institution has been disbelieved and discarded by the learned Single Judge. It has been further held that in absence of such certificate, the School in question, being an Aided Educational Institution with an approved Managing Committee, the approval of which was not challenged since 16.02.2022, the appellant is not competent to take any disciplinary action against the Headmaster in-Charge inasmuch as the Order, 2003 provides that it is only the Managing Committee, which is competent to take disciplinary action against its employees. Sri Susanta Kumar Dash, learned Advocate vehemently contended that the aforesaid observations are opposed to law.
6.1. Advancing further argument Sri Susanta Kumar Dash, learned Advocate placing reliance on the authoritative pronouncement of the Hon’ble Supreme Court of India in T.M.A. Pai Foundation Vrs. State of Karnataka, AIR 2003 SC 355 and P.A. Inamdar Vrs. State of Maharashtra, (2005) 6 SCC 537, submitted that the Odisha Education (Minority Managed Aided Educational Institutions Employees Method of Recruitment and Conditions of Service) Order, 2003, cannot have impact of impingement on the right of the minorities to administer educational institutions and no such Rule or Regulation can be promulgated so as to encroach upon the rights of the minorities to administer such institution. Further, the ratio laid down in the case of St. Catherine Girls’ High School Vrs. State of Odisha, 2002 (Supp.) OLR 452, can very well be applied to the present context so as that there is no scope to reconstitute the Managing Committee in terms of the Rules, 1991. The contrary view expressed by the learned Single Judge has adversely affected the minority status of the School.
6.2. Stemming on the ruling propounded in Managing Committee, Baptist Church Middle English School, Berhampur Vrs. State of Odisha, AIR 1988 Orissa 250 it is also submitted that absence of challenge to the approval could not be taken to mean that the appellant waived its right to administer the institution. Thus, the impugned Judgment dated 02.05.2023 is vulnerable warranting indulgence of this Court in the writ appeal.
6.3. In furtherance to what has been submitted, it is tenaciously urged by Sri Susanta Kumar Dash, learned counsel for the appellant-CCEB that appreciation of material on record on account of suppression by the respondent No.1 led to confusion in the mind of the learned Single Judge to come to an erroneous conclusion. Therefore, he persisted his stand that the
appellant, the Cuttack Christian Education Board, a society registered under the Societies Registration Act, 1860, is the Apex Body in control of the administration of the Christ Collegiate School, a minority institution established in 1883, though a Managing Committee has been constituted by it. Some of its life members have allegedly been involved in kickback in according appointment of staff in the School, which triggered undertaking enquiry. Having derived its authority under the Bye-law, i.e., Constitution of the CCEB, the appellant suspended the Headmaster as well as the Secretary.
6.4. The respondent No.1-the Headmaster challenged the order of suspension by way of filing petition being W.P.(C) No. 34817 of 2022. While stating that the School is a minority educational institution, it was contended that the appellant neither has the authority to place him under suspension nor does it have power to initiate a disciplinary proceeding inasmuch as the Odisha Education (Minority Managed Aided Educational Institutions Employees’ Method of Recruitment and Conditions of Service) Order, 2003, provides that the Managing Committee alone is vested with power to take such action. It has also been stated that approved Managing Committee does exist. Accepting the plea of the Secretary, who was placed under suspension, having support of the District Education Officer- whose daughter and the relations of the staff of his office were recruited in the said appointment- the learned Single Judge, has come to hold that in absence of certificate from NCMEI, the appellant-CCEB cannot claim the status of the Christ Collegiate School as a minority educational institution.
6.5. It is argued by Sri Susanta Kumar Dash, learned Advocate that under misconceived notion, by taking aid of the Order, 2003, meant for the minority institution, the learned Single Judge held that the appellant has no authority to place the respondent No.1 under suspension and to initiate disciplinary proceeding. Such a finding is not only in violation of the guarantee and protection enshrined under Article 30 of the Constitution of India, 1950, but also contrary to settled proposition of law laid down in different pronouncements.
6.6. Said Judgment dated 02.05.2023 is under challenge in the present intra-Court appeal, which deserves to be set aside so that the appellant can further proceed with the matter.
7. Sri Durgesh Narayan Rath, learned Advocate submitted that the Christ Collegiate School, Cuttack, being an aided educational institution, the Managing Committee of the school was reconstituted as provided under Rule 28(1) of the Odisha Education (Establishment, Recognition and Management of Private High School) Rules, 1991. The last such reconstituted Managing Committee so approved by the District Education Officer on 16.02.2022 is valid for a period of three years. It is contended that the respondent No.1 while continuing as against a Trained Matric Teacher post, he was promoted to Trained Graduate Teacher post, with effect from 23.09.2015 by an order issued by the District Education Officer. Since the respondent No.1 was promoted as against a Trained Graduate post, taking into account his eligibility and seniority, he was allowed to occupy the post of Headmaster in-charge of the School in the year 2019.
7.1. It is alleged by learned counsel that the appellant without having authority placed the respondent No.1 under suspension vide order dated 11.10.2022. The Petitioner on receipt of the said order, when moved the District Education Officer for his interference by way of representation dated 17.10.2022, the appellant initiated a disciplinary proceeding against him, which was communicated in Letter dated 01.12.2022.
7.2. By admitting the fact that the Christ Collegiate School is a Minority Managed Aided Educational Institution, Sri Durgesh Narayan Rath, learned Advocate candidly stated that the service condition of the employees of the school is governed under the Odisha Education (Minority Managed Aided Educational Institutions Employees Method of Recruitment and Conditions of Service) Order, 2003, which came into force with effect from 01.04.2003. Attention of this Court was drawn to Order 2 of the said Order wherein it has been stated that the Order, 2003 would “apply to the employees of Primary Schools, Upper Primary Schools, M.E. Schools, Junior and Senior Basic Schools, Secondary Schools and Madrassa established and managed by the minority communities”. The term “Minority Education Institution” has been defined under Order 3(h) of the said Order, 2003 to indicate that it is “such educational institutions, other than those meant exclusively imparting religious instruction, which are established and administered by minority (both religious and linguistic) communities under Article 30 of the Constitution. The agency managing the educational institution will have to possess some legal status4 an association of persons registered under Societies Registration Act or of body corporate soul, etc. Admission to the minority managed educational institution need not be confined to the members of the minority community only”.
7.3. It is contended by Sri Durgesh Narayan Rath, learned Advocate that as per Order 21(e) of the Order, 2003, the term “suspension” has been enumerated as one of the penalties and Order 22 speaks about “disciplinary authority” whereunder the Managing Committee or the Governing Body, as the case may be, is authorized to impose any of the penalties specified under Order 21 on any employee. Therefore, it is argued that since the school in question is having a duly approved Managing Committee vide Order dated 16.02.2022 in terms of Rule 28(1) of the Odisha Education (Establishment, Recognition and Management of Private High Schools) Rules, 1991, with its term till 15.02.2025, it is the Managing Committee, which is competent to place the petitioner under suspension and the appellant-Cuttack Christian Education Board, being not the Managing Committee, does not have competence to issue any such order of suspension as well as direction for initiation of proceeding against the respondent No.1. Under such premise, Sri Durgesh Narayan Rath, learned Advocate pleaded that the learned Single Judge was justified in allowing the writ petition in favour of the respondent No.1.
8. Sri Rabi Narayan Mishra, learned Additional Government Advocate referring to counter affidavit filed submitted that the Christ Collegiate School, Cuttack is an old institution established by a group of people belonging to religion. Initially there was no Grant-in-Aid nor was there any mechanism to extend separate treatment to any institution as “Miniority Education Institution”. Pursuant to a Resolution of Ministry of Home Affairs of the Central Government, a Minorities Commission came to exist to safeguard the interest of minorities in the country. This Commission became a statutory body by virtue of the National Commission for Minorities Act, 1992 which came into force on 17th May, 1993. The Minorities Commission, later known as National Commission for Minorities (NCM) initiated steps for recognition of Minorities Educational Institutions. A set of policy norms and principles were prescribed in Letter No.F-7-51/89-PN-DIII), dated 05.10.1989 by Ministry of Human Resource Development Department, Government of India for recognition of Minorities Educational Institutions. For implementation of benevolent policy norms in the State of Odisha, the Union Government brought the NCMEI Act, 2004 into force with effect from 11th day of November, 2004 to regulate Minority Educational Institutions.
8.1. When the matter stood thus, the State Government in pursuance of provisions in “The National Commission for Minority Educational Institutions Act, 2004” constituted a Committee chaired by Development Commissioner-cum-ACS vide Notification No. 14009, dated 04.09.2009 to consider the affairs of MEI. This Notification also declared the Competent Authorities of the State for issue of No Objection Certificates to establish Minorities Educational Institutions. This systematic arrangement is continuing and the Competent Authorities of the State Government are issuing Minorities Educational Institutions Certificate, wherever required.
8.2. Continuing with his argument Sri Rabi Narayan Mishra, learned Additional Government Advocate went to submit that the Christ Collegiate School, Cuttack received Grant-in-Aid prior to 01.06.1994 and, therefore, for all practical purposes it is an Aided Educational Institution, but it has not applied for declaration of Minorities Educational Institution status. It being established by members of Minority Community, it is claiming to be a MEI. After coming into force the National Commission for Minorities Act, 2004, the subject-school has no certification or declaration by any Competent Authority. Hence, applicability of the Order, 2003 to this institution is questionable. Even if it has been declared as MEI earlier to the date of commence of the NCMEI Act, 2004 by any Court or authority, the status cannot be said to be continuing because of introduction of new parameters. As per decision of the High Powered Committee in the meeting held on 04.12.2009 in order to be declared an institution as “Minority Educational Institution” the roll strength of students belonging to the minority community must be 50% or more. In case of other Aided Educational Institutions, the service rules prescribed in the Odisha Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 are applicable to members of staff. There is remarkable difference in the service rules prescribed in said Rules of 1974 and the Order, 2003.
8.3. Sri Rabi Narayan Mishra, learned Additional Government Advocate, supporting the plea of the respondent No.1 submitted that the action of suspension by CCEB is null and void. It is well within the knowledge of the CCEB that it does not have the powers to take any action against any member of staff of the Christ Collegiate School. It is only the Managing Committee which can initiate the proposal with approval of competent authorities. He submitted that it is revealed from Letter No. CCEB 2021-24, dated 28.11.2022 of the Hony. Secretary of CCEB addressed to Biraj Chandra Rout, the Secretary of the valid Managing Committee, the CCEB had earlier instructed the Secretary of the Managing Committee to take disciplinary action against Sri Prafulla Kumar Sahoo, the Headmaster-respondent No.1. When the Secretary of the Managing Committee failed to carry out the instructions, the CCEB intervened and issued the order of suspension without having authority and jurisdiction. The suspension order is thus an outcome of high handed action and manifestation of an instinct to consider one9s self to be above law.
8.4. Sri Rabi Narayan Mishra, learned Additional Government Advocate placed reliance on the Judgment of the Hon9ble Supreme Court of India in the case of State of Gujarat Vrs. H.B. Kapadia Education Trust, 2023 SCC OnLine SC 169 to submit that since the Christ Collegiate School comes within the fold of Grant-in-Aid, it is bound by the terms of Grant-in-Aid Order and no discriminatory treatment can be shown between minority-run institution and majority-run institution. Therefore, the Rules, 1991 do apply to such subject-school, as such there cannot be any dispute with regard to reconstitution of “the Managing Committee of Christ Collegiate School under the District Education Officer, Cuttack”, in terms of Rule 28(1) of the Odisha Education (Establishment, Recognition and Management of Private High Schools) Rules, 1991, as amended in 1994.
8.5. In such view of the matter, the learned Additional Government Advocate has in his forceful argument advocated the cause of the respondent No.1 to the effect that there is no apparent valid ground in the contention of the appellant that it, being minority managed educational institution, the CCEB has the authority to take penal action against the Headmaster as also to initiate disciplinary proceeding.
9. Sri Sameer Kumar Das, learned counsel appearing for respondent No.5-Managing Committee (reconstituted as approved under Rule 28 of the Rules, 1991) supporting the contention raised by the learned counsel for the respondent No.1 as well as the learned Additional Government Advocate reiterated that the Secretary of the Managing Committee of the Christ Collegiate School, Cuttack has been continuing as such. Since the school in question has not yet been declared as a Minority Educational Institution by the National Commission for Minority Educational Institution under the NCMEI Act, 2004, and no such certificate having been obtained as on date, it cannot be treated as a Minority managed Educational Institution so that it can avail protection of Article 30 of the Constitution of India. It is contended that in absence of any such certificate so obtained from the NCMEI, the appellant-CCEB is not the competent authority to take any disciplinary action against the employees of Christ Collegiate School. As the service condition of the staff of the Christ Collegiate School is governed under the Order, 2003 and as per Order 22 thereof, it is the Managing Committee which is competent to take disciplinary action against its employees. Since the impugned order of suspension and the proceeding has been initiated by the appellant-CCEB, the same have rightly been not quashed and directed for restoring the respondent No.1 in the place of Headmaster.
9.1. To buttress his argument, Sri Sameer Kumar Das, learned Advocate relied on a decision of this Court in the case of Dr. Shyamal Ku. Saha Vrs. State of Odisha, rendered in W.P.(C) No.2207 of 2012 and batch, vide Judgment dated 26.06.2012, which has been referred to by the learned Single Judge in his Judgment dated 02.05.2023.
9.2. Sri Sameer Kumar Das referring to Order dated 21.11.2023 passed in the present case, re-stated that it has already been brought to notice of this Court that the Judgment of the learned Single Judge has been implemented and nothing remains for adjudication.
RELEVANT PROVISIONS AND PERSPECTIVE OF STATUS OF MINORITY- RUN EDUCATIONAL INSTITUTION:
10. Before considering rival contentions, it is felt expedient to have overview of provisions guiding the field so far as relevant for the present purpose and the perspective of status of minority-run institution glossing through judicial pronouncements.
10.1. Article 30 of the Constitution of India:
“30. Right of minorities to establish and administer educational institutions.-
(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.
(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language”
10.2. The National Commission for Minority Educational Institutions Act, 2004:
“2. Definitions.-
(ca) “Competent Authority” means the authority appointed by the appropriate Government to grant no objection certificate for the establishment of any educational institution of their choice by the minorities;
(f) “minority,” for the purpose of this Act, means a community notified as such by the Central Government;
(g) “Minority Educational Institution” means a college or an educational institution established and administered by a minority or minorities;
10. Right to establish a Minority Educational Institution.-
(1) Subject to the provisions contained in any other law for the time being in force, any person, who desires to establish a Minority Educational Institution may apply to the competent authority for the grant of no objection certificate for the said purpose.
(2) The Competent authority shall,-
(a) on perusal of documents, affidavits or other evidence, if any; and
(b) after giving an opportunity of being heard to the applicant, decide every application filed under sub-section (1) as expeditiously as possible and grant or reject the application, as the case may be:
Provided that where an application is rejected, the Competent authority shall communicate the same to the applicant.
(3) Where within a period of ninety days from the receipt of the application under sub-section (1) for the grant of no objection certificate,-
(a) the Competent authority does not grant such certificate; or
(b) where an application has been rejected and the same has not been communicated to the person who has applied for the grant of such certificate, it shall be deemed that the Competent authority has granted a no objection certificate to the applicant.
(4) The applicant shall, on the grant of a no objection certificate or where the Competent authority has deemed to have granted the no objection certificate, be entitled to commence and proceed with the establishment of a Minority Educational Institution in accordance with the rules and regulations, as the case may be, laid down by or under any law for the time being in force.
Explanation.-
For the purposes of this section,-
(a) “applicant” means any person who makes an application under sub-section (1) for establishment of a Minority Educational Institution;
(b) “no objection certificate” means a certificate stating therein, that the Competent authority has no objection for the establishment of a Minority Educational Institution.”
10.3. THE ODISHA EDUCATION ACT, 1969:
“Statement of Objects and Reasons
Educational activities in this State were being regulated through the 8Education Code9 which is a collection of executive instructions issued by Government from time to time. But action taken under the Education Code has been declared as illegal as the Code does not have any statutory support. As a result, it is becoming increasingly difficult for Government to fulfil their responsibility for management of Educational Institutions, conduct of educational programmes and directions of educational activities. It is not possible to take adequate and timely measures to prevent mismanagement of non-Government institutions.
It is, therefore, considered essential to enact what may be called an 8Education Act9, in which the Government will assume the authority for taking suitable steps to prevent the affairs and management of the non-Government institutions deteriorating. Government will take the authority and responsibility of directing management, administration and maintenance of teaching standards in educational institutions in this State and determining the service conditions, etc. of staff employed in educational institutions. The Act also proposes to give authority to the Government to prevent the management of an institution from abusing or misusing the properties that might have been donated by the people for the purposes of the educational institutions concerned. Above all, this Act will help future development of education.”
Section 2 of the Odisha Education Act, 1969:
“2. Act not to apply to certain institutions.-
Nothing contained in this Act shall apply to educational institutions of their choice established and administered by minorities having the right under clause (1) of Article 30 of the Constitution:
Provided that the State Government may, by notification, apply or adopt to an educational institution established and administered by minorities, such of the provisions of the Act; so however that the right under Article 30 of the Constitution are not infringed.”
10.4. The Odisha Education (Minority managed aided educational institutions employees9 Method of Recruitment and Conditions of Service) Order, 2003:
“2. Application.-
These Orders shall apply to the employees of Primary Schools, Upper Prirnary Schools, M.E. Schools, Junior and Senior Basic Schools, Secondary Schools and Madrassa established and managed by the minority conrmunities.
3. Definitions.-
(1) In these orders, unless the context otherwise requires.-
(a) “Act” means the Odisha Education Act, 1969;
(f) “Institution” means an educational institution established and administrated by minorities based on religion or language;
(h) “Minority Education Institution” are such educational institutions. other than those meant exclusively for imparting religious instruction, which are established and administered by minority (both religious and linguistic) communities under Article 30 of the Constitution. The agency managing the educational institution will have to possess some legal status4 an association of person registered under Societies Registration Act or of a body corporate soul, etc. Admission to the minority managed educational institution need not be confined to the members of the minority community only;
(2) All other words and expression used in these orders but not defined shall have but not defined shall have the same meaning as are assigned to them in the Act.
12. Sanction of Grant-in-Aid.-
(1) Grant-in-Aid cannot be claimed as a matter of right. Depending on the financial condition of the State, Grant-in-Aid may be sanctioned and released by Government in convenient manner for the aided minority, educational institution, towards salary cost of the approved yardstick post only.
(2) Sanction of Grant-in-Aid to the minority educational institutions are to be regulated on the basis of general or special rule/order of the Government issued from time to time.
21. Nature of penalties.4
The following penalties may, for good and sufficient reasons and as hereinafter provided be imposed on an employee of an aided minority (managed) educational institution, namely:
(a) fine;
(b) censure;
(c) withholding of increments or promotion;
(d) recovery from pay of the whole or part of any pecuniary loss caused to the institution for negligence or breach of orders;
(e) suspension;
(f) reduction to a lower service, grade or post or to a lower scale of pay or to a lower stage in the scale of pay;
(g) compulsory retirement;
(h) removal from service which shall not be a disqualification for future employment;
(i) dismissal from service which shall ordinarily be a disqualification for future employment.
Note-I.4
The penalty of fine shall be imposed only on lower grade employees.
Note-II.4
Termination of the services of a probationer under Order 15 or of a temporary employee in accordance with the term of such agreement shall not amount to a penalty within the meaning of this order.
22. Disciplinary Authorities.4
(1) The Managing Committee or the Governing Body as the case may be, may impose any of the penalties specified under Order 21 on any employee.
(2) Without prejudice to sub-para (1) but subject to the provisions of sub-para (3) any of the penalties specified in Order 21 may be imposed,-
(a) in respect of a lower grade employee, by the Headmaster or the Principal, as the case may be; and
(b) in respect of any other employee, by the Managing Committee or the Governing Body, as the case may be:
Provided that, in case of suspension of an employee falling under clauses (a) and (b) above the Inspector, in respect of employee serving in the school and Director in respect of Colleges, shall be informed by the management.
(3) No penalty shall be imposed on a person appointed to any post in an aided minority institution on deputation from Government expect in accordance with the provisions of Order 26.
37. Repeal and Savings.-
(1) All non-statutory rules, instructions, orders, resolutions, corresponding to these orders and in force immediately before the commencement of these orders are hereby repealed.
(2) All appointments made, orders issued or action taken against the employees of the institutions managed by the minority community prior to the commencement of these orders shall be deemed to have been made, issued of taken under these orders.
38. Interpretation.-
If any question arises relating to interpretation of these orders it shall be referred to the Government for decision.
39. Relaxation.-
Where Government are satisfied that operation of any of the provisions of these orders causes undue hardship in any particular case, it may, by order relax any of the provisions of these orders to such extent and subject to such conditions as it may consider necessary.”
10.5. Constitution of the Cuttack Christian Education Board (Registered under Act XXI of 1860)-[Certificate No.4 of 1947-48]:
“Amendments to the Memorandum and to the Constitution of the Cuttack Christian Education Board, Cuttack as re-confirmed and confirmed in respect of all such amendments made during the years 1961, 1963, 1965, 1966, 1968 and 1970 respectively as per Article 9 of the Constitution of the Cuttack Christian Education Board registered by the Registrar of Societies, Odisha, Cuttack under the Societies Registration Act (XXI of 1860), in the year 1947; Registration No.4 of 1947-48).
***
1. Name.-
The name by which the Board is designated “THE CUTTACK CHRISTIAN EDUCATION BOARD”.
2. Aims and objects.-
The object of this Board is to foster education among people of all communities, both Christians and other than Christians, under Christian influence, the term education shall be taken in the widest sense to cover moral, technical, vocational as well as … education and social welfare of the Christian Community. For fulfilment of these objects, the Board shall raise funds and hold property for all such purposes for which it shall be responsible.
3. Office of the Board.-
The office of the Cuttack Christian Education Board, hereinafter called the Board, shall be in the Christ Collegiate School, Cuttack-1.
10. Christ College and Christ Collegiate School.-
(a) In furtherance of the objective as specified in Article 2 of the Constitution, no worship in any form other than Christian worship shall be permitted in the buildings and/or compound of the College and the School or any other Institution that may be established by the Board.
(b) Amended on 10th June 1970.- The Managing Committee of the School and the Governing Body of the College shall be constituted according to the Rules and Regulations approved by the Cuttack Christian Education Board.
(c) Amended on 13.08.1966.- There shall always be six representatives of the Board in the Christ Collegiate School Managing Committee and upto a maximum of eleven representative of the Board in the Governing Body of the Christ College, Cuttack.
(d) The Headmaster of the School and the Principal of the College should be Christian and be appointed by the Board. The Executive Committee may however make interim arrangements.
(e) Amended on 16.06.1970.- The Rules of Business of the Christ College Governing Body and the Christ Collegiate School Managing Committee shall be as in Appendix ‘A’ and ‘B’.
(f) Amended on 16.06.1970.- The Form of agreement to be executed by the teaching staff of the College and the School at the time of appointment and the undertaking given by the students of the College and the School and guardian for the minor students at the time of admission shall be approved by the Cuttack Christian Education Board.
(g) Amended on 16.06.1970.- The service conditions of the employees of the College and the School and the Leave Rules applicable to the teaching staff and employees of the College and School shall also be approved by the Cuttack Christian Education Board.
APPENDIX-B
RULES OF BUSINESS OF THE MANAGING COMMITTEE OF
THE CHRIST COLLEGIATE SCHOOL, CUTTACK
Rule 1.- The Managing Committee of the Christ Collegiate School shall consist of eleven members.
The composition of the Managing Committee shall be as follows:
I. The Headmaster of the School;
II. One member of the teaching staff to be co-opted by the Managing Committee;
III. Six members nominated by the Executive Committee of the Cuttack Christian Education Board;
IV. Three non-Christian members to be co-opted by other members of whom one shall be a Mohammedan/Schedule Tribe/Schedule caste.
A guardian member is preferable to others.
Amendment passed on 02.10.1974.
V. The Secretary/Convenor of the Managing Committee shall be nominated by the CCEB vide item 8(b) page 3 of the Constitution.
VI. The President shall be elected by the Managing Committee from amongst its members.
Rule 3.4 Powers and Duties of the Managing Committee.4
(a) To be responsible for the general management of the School including its finance;
(b) To sanction the annual budget and pass the annual statement of accounts;
(c) To arrange for annual or half yearly audit of accounts;
(d) To receive an annual report, audited accounts, inspection reports and visit notes;
(e) To appoint and terminate the services of members of the staff except the Headmaster and to take disciplinary measure against them on the report of the Secretary and the Headmaster;
(f) To grant leave other than casual leave and approve of arrangements during leave vacancies;
(g) To decide in all cases of misconduct of pupils considered by the Headmaster and Secretary to warrant rustication or expulsion;
(h) To refer to the Cuttack Christian Education Board for prior approval of all matters relating to policy, buildings and land, acceptance of Government grant for any new purpose;
(i) To forward to the Cuttack Christian Education Board copies of minutes of all meetings, the annual report, Audit and Inspector9s reports;
(j) To see that 50% of the surplus funds of the School are placed to the credit of the School in some scheduled bank or in the Post Office or both, in the joint names of the Secretary and one of the members of the Managing Committee to be elected for the purpose by the Managing Committee and 50% of the balance be sent to the Secretary, Cuttack Christian Education Board for development work of the School;
(k) To fix the holidays and vacations keeping in view the Odisha Education Code or Government circular in this matter;
(l) To approve and sanction free studentship, half-free studentship and other monetary help to the students and staff;
(m) To approve of raising of funds, donations other than those prescribed in the Odisha Education Code and those directed by the Cuttack Christian Education Board;
(n) To hear appeals against the orders of punishment passed by the Headmaster or the Secretary;
(o) To bring to the notice of the Cuttack Christian Education Board matters requiring disciplinary action against the Headmaster;
Rule 6.- Appointment of the Headmaster of the Christ Collegiate School, Cuttack.
The Headmaster of the School shall be appointed by Executive Committee of the Cuttack Christian Education Board who shall determine terms and conditions of service of the Headmaster. The Executive Committee of the Cuttack Christian Education Board shall be competent to take disciplinary action against the Headmaster. But, to remove /dismiss him, as and when occasion arises, the Executive Committee shall take prior approval of the General Body of Cuttack Christian Education Board.”
10.6. In N. Ammad Vrs. The Manager, Emjoy High School, (1998) 6 SCC 674, it has been laid down that:
“25. If the said observations were meant for a non-minority school, we would not have considered its implications here. But as the observations are meant for a minority school in that case we may state at once that we are unable to concur with it. The management of a minority school is free to find out a qualified person either from the staff of the same school or from outside to fill up the vacancy. We may point out, in this context, that the Division Bench in Henry Gomez Vrs. The Government of Kerala, ILR 1994 (Ker) 808 has quoted with approval the following observations of another earlier Division Bench decision of the same High Court in Manager Corporate E. Agency Vrs. State of Kerala (1990 2 Kerala Law Times 240):
‘The right to appoint the Headmaster of a school or the Principal of a college, is one of prime importance in the administration of the institution. The right of the minority to administer an educational institution of its choice requires the presence of a person in whom they can repose confidence, who will carry out their directions, and to whom they can look forward to maintain the traditions, discipline and the efficiency of the teaching. When once the pivotal position of the Headmaster is recognised, it has to be held that the right to appoint a person of its choice as Headmaster is of paramount importance to the minority, any interference with which (otherwise than by prescribing qualifications and experience) will denude the right of administration of is content, reducing it to mere husk, without the grain Such an inroad cannot be saved as a regulation which the State might impose for furthering the standards of education.’
27. Thus the Management9s right to choose a qualified person as the Headmaster of the School is well insulated by the Protective cover of Article 30(1) of the Constitution and it cannot be chiseled out through any Legislative Act or Executive Rule except for fixing up the qualifications and conditions of service for the post. Any such statutory or executive fiat could be violative of the fundamental right enshrined in the aforesaid Article and would hence be void.”
10.7. In The Secretary, Malankara Syrian Catholic College Vrs. T. Jose, (2007) 1 SCC 386, it has been observed;
“13. Article 30(1) gives minorities the right to establish and administer educational institutions of their choice. In State of Kerala Vrs. Very Rev. Mother Provincial, (1970) 2 SCC 417, a Constitution Bench of this Court explained 8right to administer’ thus:
‘Administration means 8management of the affairs’ of the institution. This management must be free of control so that the founders or their nominees can mould the institution as they think fit, and in accordance with their ideas of how the interests of the community in general and the institution in particular will be best served. No part of this management can be taken away and vested in another body without an encroachment upon the guaranteed right.’
‘There is, however, an exception to this and it is that the standards of education are not a part of management as such. These standards concern the body politic and are dictated by considerations of the advancement of the country and its people. Therefore, if universities establish the syllabi for examinations they must be followed, subject however to special subjects which the institutions may seek to reach, and to a certain extent the State may also regulate the conditions of employment of teachers and the health and hygiene of students. Such regulations do not bear directly upon management as such although they may indirectly affect it. Yet the right of the State to regulate education, educational standards and allied matters cannot be denied. The minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions, or under the guise of exclusive right of management, to decline to follow the general pattern. While the management must be left to them, they may be compelled to keep in step with others.’
14. In The Ahmedabad St. Xavier’s College Society Vrs. State of Gujarat, (1974) 1 SCC 717, a nine Judge Bench of this Court considered the scope and ambit of minority’s right to administer educational institutions established by them. The majority were of the view that prescription of conditions of service would attract better and competent teachers and would not jeopardize the right of the management of minority institutions to appoint teachers of their choice. It was also observed :
‘Autonomy in administration means right to administer effectively and to manage and conduct the affairs of the institutions. The distinction is between a restriction on the right of administration and a regulation prescribing the manner of administration. The right of administration is day to day administration. The choice in the personnel of management is a part of the administration. The university will always have a right to see that there is no mal- administration. If there is mal-administration, the university will take steps to cure the same. There may be control and check on administration in order to find out whether the minority institutions are engaged in activities which are not conducive to the interest of the minority or to the requirements of the teachers and the students.
The ultimate goal of a minority institution too imparting general secular education is advancement of learning. This Court has consistently held that it is not only permissible but also desirable to regulate everything in educational and academic matters for achieving excellence and uniformity in standards of education.
In the field of administration it is not reasonable to claim that minority institutions will have complete autonomy. 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 institution. The right of a minority to administer its educational institution involves, as part of it, a correlative duty of good administration.’
17. In TMA Pai Foundation Vrs. State of Karanataka, AIR 2003 SC 355, this Court made it clear that a minority institution does not cease to be so, merely on receipt of aid from the State or its agencies. In other words, receipt of aid does not alter the nature or character of the minority educational institution receiving aid. Article 30(1) clearly implies that any grant that is given by the State to the minority institution cannot have such conditions attached to it which will in any way dilute or abridge the rights of the minorities to establish and administer educational institutions. But all conditions that have relevance to the proper utilization of the aid by an educational institution can be imposed. The High Court, however, wrongly construed TMA Pai and concluded that acceptance of aid by a minority institution takes away its right to claim immunity from interference and therefore the State can lay down any regulation governing the conditions of service of employees of aided minority institutions ignoring the constitutional guarantee under Article 30(1). For this purpose, the High Court relied on the observations in Paras 72 and 73 of TMA Pai (supra). The said paragraphs are extracted below :
‘72. 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.
It 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 [AIR 1958 SC 956] 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.
73. There are a large number of educational institutions, like schools and non-professional colleges, which cannot operate without the support of 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 institution.’
But the aforesaid observations in Paras 72 and 73 were not made with reference to aided minority educational institutions. The observations in para 72 were intended for aided non- minority private professional institutions. The observation in para 73 in the context of aided non-minority non-professional private institutions. The position of minority educational institutions securing aid from the State or its agencies was considered in Para 80 to 155, wherein it was clearly held that receipt of State-aid does not annihilate the right guaranteed to minorities to establish and administer educational institutions of their choice under Article 30(1).
18. The observations of the Eleven-Judge Bench in TMA Pai (supra) in respect of the extent to which the right of administration of aided minority educational institutions could be regulated, are extracted below:
8*** the state cannot, when it chooses to grant aid to educational institutions, deny aid to a religious or linguistic minority institution only on the ground that the management of that institution is with the minority. We would, however, like to clarify that if an abject surrender of the right to management is made a condition of aid, the denial of aid would be violative of Article 30(2). However, conditions of aid that do not involve a surrender of the substantial right of management would not be inconsistent with constitutional guarantees, even if they indirectly impinge upon some facet of administration.
It cannot be argued that no conditions can be imposed while giving aid to a minority institution. Whether it is an institution run by the majority or the minority, all conditions that have relevance to the proper utilization of the grant-in-aid by an educational institution can be imposed. *** The conditions for grant or non-grant of aid to educational institutions have to be uniformly applied, whether it is a majority-run institution or a minority-run institution. As in the case of a majority run institution, the moment a minority institution obtains a grant of aid, Article 28 of the Constitution comes into play. When an educational institution is maintained out of State funds, no religious instruction can be provided therein.’
Among the questions formulated and answered by the majority while summarising conclusions, Question 5(c) and answer thereto has a bearing on the issue on hand:
Question 5(c) is extracted below :
‘Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities?
The first part of the answer to Question 5 (c) related to unaided minority institutions. With reference to statutory provisions regulating the facets of administration, this court expressed the view that in case of an unaided minority educational institutions, the regulatory measure of control should be minimal; and in the matter of day-to-day management, like the appointment of staff (both teaching and non-teaching) and administrative control over them, the management should have the freedom and there should not be any external controlling agency. But such institutions should have to comply with the conditions of recognition and conditions of affiliation to a University or Board; and a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself. This Court also held that fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee.
The second part of the answer to Question 5(c) applicable to aided minority institutions is extracted below:
‘For redressing the grievances of employees of aided and unaided institutions who are subjected to punishment or termination from service, a mechanism will have to be evolved, and in our opinion, appropriate tribunals could be constituted, and till then, such tribunals could be presided over by a judicial officer of the rank of District Judge.
The State or other controlling authorities, however, can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a principal of any educational institution.
Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State, without interfering with the overall administrative control of the management over the staff.’
The position enunciated in TMA Pai is reiterated in P.A. Inamdar Vrs. State of Maharashtra, (2005) 6 SCC 537.
19. The general principles relating to establishment and administration of educational institution by minorities may be summarized thus:
(i) The right of minorities to establish and administer educational institutions of their choice comprises the following rights:
a) To choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution;
b) To appoint teaching staff (Teachers/ Lecturers and Head-masters/Principals) as also non-teaching staff; and to take action if there is dereliction of duty on the part of any of its employees;
c) To admit eligible students of their choice and to set up a reasonable fee structure;
d) To use its properties and assets for the benefit of the institution;
(ii) The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-a-vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation etc. applicable to all, will equally apply to minority institutions also.
(iii) The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1).
(iv) Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/Lecturers by adopting any rational procedure of selection.
(v) Extention of aid by the State, does not alter the nature and character of the minority educational institution. Conditions can be imposed by the State to ensure proper utilization of the aid, without however diluting or abridging the right under Article 30(1).
21. We may also recapitulate the extent of regulation by the State, permissible in respect of employees of minority educational institutions receiving aid from the State, as clarified and crystalised in TMA Pai. The State can prescribe:
(i) the minimum qualifications, experience and other criteria bearing on merit, for making appointments,
(ii) the service conditions of employees without interfering with the overall administrative control by the Management over the staff.
(iii) a mechanism for redressal of the grievances of the employees.
(iv) the conditions for the proper utilisation of the aid by the educational institutions, without abridging or diluting the right to establish and administer educational institutions.
In other words, all laws made by the State to regulate the administration of educational institutions, and grant of aid, will apply to minority educational institutions also. But if any such regulations interfere with the overall administrative control by the Management over the staff, or abridges/dilutes, in any other manner, the right to establish and administer educational institutions, such regulations, to that extent, will be inapplicable to minority institutions.
25. *** How important is the post of Headmaster of a school has been pithily stated by a Full Bench of the Kerala High Court in Aldo Maria Patroni Vrs. E.C. Kesavan, AIR 1965 Ker 75. Chief Justice M.S. Menon has, in a style which is inimitable, stated thus:
‘The post of the headmaster is of pivotal importance in the life of a school. Around him wheels the tone and temper of the institution; on him depends the continuity of its traditions, the maintenance of discipline and the efficiency of its teaching. The right to choose the headmaster is perhaps the most important facet of the right to administer a school, and we must hold that the imposition of any trammel thereon4 except to the extent of prescribing the requisite qualifications and experience4 cannot but be considered as a violation of the right guaranteed by Article 30(1) of the Constitution. To hold otherwise will be to make the right 8a teasing illusion, a promise of unreality’.
Thereafter, this Court concluded that the management of minority institution is free to find out a qualified person either from the staff of the same institution or from outside, to fill up the vacancy; and that the management9s right to choose a qualified person as the Headmaster of the school is well insulated by the protective cover of Article 30(1) of the Constitution and it cannot be chiselled out through any legislative act or executive rule except for fixing up the qualifications and conditions of service for the post; and that any such statutory or executive fiat would be violative of the fundamental right enshrined in Article 30(1) and would therefore be void. This Court further observed that if the management of the school is not given the wide freedom to choose the person for holding the key-post of Principal subject, of course, to the restriction regarding qualifications to be prescribed by the State, the right to administer the School would get much diminished.
26. In Board of Secondary Education & Teaching Training Vrs. Joint Director of Public Instructions, Sagar, (1998) 8 SCC 555, this Court held:
8The decisions of this Court make it clear that in the matter of appointment of the Principal, the management of a minority educational institution has a choice. It has been held that one of the incidents of the right to administer a minority educational institution is the selection of the Principal. Any rules which takes away this right of the management have been held to be interfering with the right guaranteed by Article 30 of the Constitution. In this case, both Julius Prasad selected by the management and the third respondent are qualified and eligible for appointment as Principal according to rules. The question is whether the management is not entitled to select a person of their choice. The decisions of this court including the decision in State of Kerala Vrs. Very Rev. Mother Provincial, (1970) 2 SCC 417 and The Ahmedabad St. Xavier9s College Society Vrs. State of Gujarat, (1974) 1 SCC 717 make it clear that this right of the minority educational institution cannot be taken away by any rules or regulations or by any enactment made by the State. We are, therefore, of the opinion that the High Court was not right in holding otherwise. The State has undoubtedly the power to regulate the affairs of the minority educational institutions also in the interest of discipline and excellence. But in that process, the aforesaid right of the management cannot be taken away, even if the Government is giving hundred per cent grant.’
27. It is thus clear that the freedom to choose the person to be appointed as Principal has always been recognized as a vital facet of the right to administer the educational institution. This has not been, in any way, diluted or altered by TMA Pai. Having regard to the key role played by the Principal in the management and administration of the educational institution, there can be no doubt that the right to choose the Principal is an important part of the right of administration and even if the institution is aided, there can be no interference with the said right. The fact that the post of the Principal/Headmaster is also covered by State aid, will make no difference.”
10.8. In Corporate Educational Agency Vrs. James Mathew (2017) 15 SCC 595 it has been stated as follows:
“6. The emerging position is that, once the management of a minority educational institution makes a conscious choice of a qualified person from the minority community to lead the institution, either as the Headmaster or Principal, the court cannot go into the merits of the choice or the rationality or propriety of the process of choice. In that regard, the right under Article 30(1) is absolute.
7. As far as the validity of the declaration of minority status is concerned, this Court in N. Ammad Vrs. Emjay High School, (1998) 6 SCC 674 has held that the certificate of the declaration of minority status is only a declaration of an existing status. Therefore, there is no question of availability of the status only from the date of declaration. What is declared is a status which was already in existence. ***”
10.9. This Court in St. Catherine Girls’ High School Vrs. State of Odisha, MANU/OR/0281/2002 “ 2002 (Supp.) OLR 452 held as follows:
“14. Regarding the approval sought for from the Inspector of Schools to the appointments made by the Secretary of the Schools and to grant of higher pay scales to the staff, it has been submitted that it was necessary for the purpose of release of grant as the School was a fully aided School. Although the grant of approval of appointment of staff in a minority institution is outside the purview of the State control but before release of aid the concerned authorities are to be satisfied that the appointments are within the sanctioned strength and that the appointees possess the required minimum qualification. Such approvals do not signify that the School is not a minority institution.
15. Allegation of direct payment of salaries to the staff are release of salary in favour of the Headmistress appears to be post-dispute development. Even in 1991 (Annexure-9) grant for payment of salaries to the staff was released in favour of the Secretary of the School.
16. Moreover, those acts like direct payment of salaries, deduction of G.P.F. amount, inclusion of the School in the list of general Schools are all unilateral acts of the State Government and those never prejudicially affected the right of management of the minority School. These unilateral acts which did not in reality interfere with the constitutional freedom of management are not all relevant for the purpose of determining the real character of the School.
17. Article 30 of the Constitution finds place in Part-III as one of the fundamental rights of the minorities based on religion or language. It is well-known and well settled that there is no estoppel against a constitutional provision and more particularly against a fundamental right enshrined in the Constitution. A private statutory right can be waived under certain circumstances, but a constitutional guarantee of a fundamental right given to a particular Section of the community cannot be waived. So even assuming and/or accepting that the management of the School initially was following the provisions of the Orissa Education Code or the Rules relating to management of private educational institutions, the same cannot take away the minority character and/or status of an institution, if it is proved that the same has been established and is being administered by the minorities based on religion or language. In Olga Tellis and Ors. Vrs. Bombay Municipal Corporation and Ors., AIR 1986 SC 180, a Constitution Bench of the Supreme Court has pronounced:
‘*** There can be no estoppel against the Constitution, the Constitution is not only the paramount law of the land but, it is the source and sustenance of all laws. Its provisions are conceived in public interest and are intended to serve a public purpose. The doctrine of estoppel is based on the principle that consistency in word and action imparts certainty and honesty to human affairs. If a person makes a representation to another, on the faith of which the latter acts to his prejudice, the former cannot resile from the representation made by him. He must make it good. This principle can have no application to representations made regarding the assertion or enforcement of fundamental rights. For example, the concession made by a person that he does not possess and would not exercise his right to free speech and expression or the right to move freely throughout the territory of India cannot deprive him of those constitutional rights, any more than a concession that a person has no right of personal liberty can justify his detention contrary to the terms of Article 22 of the Constitution. Fundamental rights are undoubtedly conferred by the Constitution upon individuals which have to be asserted and enforced by them, if those rights are violated. But the high purpose which the Constitution seeks to achieve by conferment of fundamental rights is not only to benefit individuals but to secure the larger interests of the community. The preamble of the Constitution says that India is a Democratic Republic. It is in order to fulfil the promise of the Preamble that fundamental rights are conferred by the Constitution, some on citizens like those guaranteed by Articles 15, 16, 19, 21 and 29 and, some on citizens and non-citizens alike, like those guaranteed by Articles 14, 21, 22 and 25 of the Constitution; No individual can barter away the freedoms conferred upon him by the Constitution. A concession made by him in a proceeding, whether under a mistake of law or otherwise, that he does not possess or will not enforce any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceeding. Such a concession, if enforced, would defeat the purpose of the Constitution. Were the argument of estoppel valid, an all powerful State could easily tempt an individual to forge his precious personal freedoms on promise of transitory, immediate benefits.
***
The plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bona fides in day-to-day transactions. In Basheshwar Nath Vrs. Commissioner of Income-Tax, Delhi, (1959) Supp. (1) SCR 528 “ AIR 1959 SC 149; a Constitution Bench of this Court considered the question whether the fundamental rights conferred by the Constitution can be waived. Two members of the Bench (Das C.J. and Kapoor, J.) held that there can be no waiver of the fundamental right founded on Article 14 of the Constitution. Two others (N.H. Bhagwati and Subba Rao, JJ.) held that not only could there by no waiver of the right conferred by Article 14, but there could be no waiver of any other fundamental right guaranteed by Part III of the Constitution. The Constitution makes no distinction, according to the learned Judges, between fundamental rights enacted for the benefit of an individual and those enacted in public interest or on grounds of public policy.’
In re The Kerala Education Bill, AIR 1958 SC 956, a seven-Judge Bench of the Supreme Court has said that “there can be no loss of fundamental rights merely on the ground of non-exercise of it.” The similar view has been expressed by the Supreme Court in the Ahmedabad St. Xaviers College Society and Anr. etc. Vrs. State of Gujarat and Anr., AIR 1974 SC 1389 and in Gandhi Faiz-eam College, Shahjahanpur Vrs. University of Agra and Ors., AIR 1975 SC 1821.
18. Thus it is wholly irrelevant whether at the initial stages the management of the School was voluntarily complying with some provisions of the Education Code or the Rules framed by the State Government and sending the constitution and reconstitution of the Managing Committee for approval of the appropriate authorities. Besides, a minority institution may on its own follow the principle or policy contained in any Statute, or Rules so long as the same does not clash with its right of freedom of management, voluntary submission to certain general rules, regulations or restrictions is totally different from the state9s insistence on compliance with the provisions of the Statute, Rules and Regulations interfering with the freedom of management guaranteed under Article 30 of the Constitution. So constitution or reconstitution of the Managing Committee on the pattern laid down in the Education Code or any Rule and sending those for approval cannot affect the minority status of the School if it is otherwise found to be an institution established by the minorities within the meaning of Article 30 of the Constitution. Direct payment of salaries, to the teachers deduction of P.F. amount etc. are all unilateral acts of the State Government and those are not at all relevant for the purpose of determination of the real character of the School.”
10.10. This Court in Rt. Rev. Lingaraj Tandy Vrs. State of Odisha, MANU/OR/0236/2002 “ 2002 (II) OLR 265 held as under:
“13. Annexure 28 is a Letter dated 07.04.1994 of the Inspector of Schools, Bolangir Circle, Bolangir to all the Headmasters of Aided High Schools informing them that the Government has decided to form a common cadre of Assistant Teachers of Aided High Schools of the State separately in each category. The common cadre in relation to any class of employees or any category of Aided Educational Institutions is contemplated under Section 10-C of the Orissa Education Act, 1969. But Section 2 of Orissa Education Act, 1969 makes it clear that the Act does not apply to educational institutions established and administered by minorities having the right under Clause-1 of Article 30 of the Constitution.
***
It is clear from the main provision in Section 2 of the Act that educational institutions established and administered by religious and languishing minorities which are protected under Article 30(1) of the Constitution are outside the purview of the Education Act, 1969. The proviso to Section 2, however, states that the State Government may by notification apply or adopt to an educational institution established and administered by minorities such provisions of the Act so however that the rights under Article 30 of the Constitution are not infringed. No Notification under the said proviso to Section 2 has been brought to our notice by Mr. Behera, learned Standing Counsel, to show that the provisions of Section 10-C of the Education Act, 1969 relating to constitution of common cadre has been made applicable to educational institutions established and administered by minorities and protected under Article 30(1) of the Constitution. In the absence of any such Notification the provisions of Section 10-C relating to constitution of common cadre will not apply to the Nav Jeevan Vidyapitha, Bolangir held by us as a minority institution established by the Christian community and protected under Article 30(1) of the Constitution.”
10.11. With regard to autonomy of administration of MEI, it has been laid down in Pramati Educational & Cultural Trust Vrs. Union of India, (2014) 11 SCR 712 as follows:
“45. Under Article 30(1) of the Constitution, all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. A Religious and linguistic minorities, therefore, have a special constitutional right to establish and administer educational schools of their choice and this Court has repeatedly held that the State has no power to interfere with the administration of minority institutions and can make only regulatory measures and has no power to force admission of students from amongst non-minority communities, particularly in minority schools, so as to affect the minority character of the institutions. Moreover, in Kesavananda Bharati Sripadagalvaru Vrs. State of Kerala, (1973) 4 SCC 225 Sikri, CJ., has even gone to the extent of saying that Parliament cannot in exercise of its amending power abrogate the rights of minorities. To quote the observations of Sikri, CJ. in Kesavananda Bharati Sripadagalvaru Vrs. State of Kerala, (1973) 4 SCC 225:
‘178. The above brief summary of the work of the Advisory Committee and the Minorities Sub-committee shows that no one ever contemplated that fundamental rights appertaining to the minorities would be liable to be abrogated by an amendment of the Constitution. The same is true about the proceedings in the Constituent Assembly. There is no hint anywhere that abrogation of minorities’ rights was ever in the contemplation of the important members of the Constituent Assembly. It seems to me that in the context of the British plan, the setting up of Minorities Sub-committee, the Advisory Committee and the proceedings of these Committees, as well as the proceedings in the Constituent Assembly mentioned above, it is impossible to read the expression 8Amendment of the Constitution’ as empowering Parliament to abrogate the rights of minorities. Thus, the power under Article 21A of the Constitution vesting in the State cannot extend to making any law which will abrogate the right of the minorities to establish and administer schools of their choice.”
10.12. In R.P. Kapur Vrs. Union of India, AIR 1964 SC 787 “ (1964) 5 SCR 431, it has been laid down as follows:
“12. The general principle therefore is that an employer can suspend an employee pending an enquiry into his conduct and the only question that can arise on such suspension will relate to the payment during the period of such suspension. If there is no express term in the contract relating to suspension and payment during such suspension or if there is no statutory provision in any law or rule, the employee is entitled to his full remuneration for the period of his interim suspension; on the other hand if there is a term in this respect in the contract or there is a provision in the statute or the rules framed thereunder providing for the scale of payment during suspension, the payment would be in accordance therewith. These general principles in our opinion apply with equal force in a case where the Government is the employer and a public servant is the employee with this modification that in view of the peculiar structural hierarchy of Government, the employer in the case of Government, must be held to be the authority which has the power to appoint a public servant. On general principles therefore the authority entitled to appoint a public servant would be entitled to suspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him. This general principle is illustrated by the provision in Section 16 of the General Clauses Act, No. X of 1897, which lays down that where any Central Act or Regulation gives power of appointment that includes the power to suspend or dismiss unless a different intention appears. Though this provision does not directly apply in the present case, it is in consonance with the general law of master and servant. But what amount should be paid to the public servant during such suspension will depend upon the provisions of the statute or rule in that connection. If there is such a provision the payment during suspension will be in accordance therewith. But if there is no such provision, the public servant will be entitled to his full emoluments during the period of suspension. This suspension must be distinguished from suspension as a punishment which is a different matter altogether depending upon the rules in that behalf. On general principles therefore the Government, like any other employer, would have a right to suspend a public servant in one of two ways. It may suspend any public servant pending departmental enquiry or pending criminal proceedings; this may be called interim suspension. Or the Government may proceed to hold a departmental enquiry and after his being found guilty order suspension as a punishment if the rules so permit. This will be suspension as a penalty. These general principles will apply to all public servants but they will naturally be subject to the provisions of Article 314 and this brings us to an investigation of what was the right of a member of the former Secretary of State9s Services in the matter of suspension, whether as a penalty or otherwise.”
10.13. In State of Gujarat Vrs. H.B. Kapadia Education Trust, 2023 LiveLaw (SC) 127 “ 2023 SCC OnLine SC 169, the Hon9ble Supreme Court of India succinctly reiterated the legal status as follows:
“9. The provisions contained in the said Grant-in-Aid Code pertaining to the recognition, eligibility criteria, the procedure for making application to the government for receiving Grant-in-Aid etc. are applicable to all the secondary schools whether established and administered by the minority or not and the respondents could not have claimed any right to receive the aid from the Government dehors the provisions of the Grant-in-Aid Code. If the appellants therefore had refused to pay the Grant-in Aid to the respondents, on the Principal having reached to the age of superannuation, it could not be said by any stretch of imagination that the appellants had interfered with the affairs of the respondents or had violated Article 30(1) of the Constitution. As held by the Constitution Bench in case of T.M.A. Pai Foundation and Others Vrs. State of Karnataka and Others, (2002) 8 SCC 481, the right under Article 30(1) is not an absolute right above the law, and that the provisions for the grant or non-grant in aid to the educational institutions, whether it is majority-run institution or a minority-run institution, have to be uniformly applied. The relevant observations made in para 143 and 144 of the said judgment, which clinch the issue read, as under:
‘143. This means that the right under Article 30(1) implies that any grant that is given by the State to the minority institution cannot have such conditions attached to it, which will in any way dilute or abridge the rights of the minority institution to establish and administer that institution. The conditions that can normally be permitted to be imposed, on the educational institutions receiving the grant, must be related to the proper utilization of the grant and fulfilment of the objectives of the grant. Any such secular conditions so laid, such as a proper audit with regard to the utilization of the funds and the manner in which the funds are to be utilized, will be applicable and would not dilute the minority status of the educational institutions. Such conditions would be valid if they are also imposed on other educational institutions receiving the grant.
144. It cannot be argued that no conditions can be imposed while giving aid to a minority institution. Whether it is an institution run by the majority or the minority, all conditions that have relevance to the proper utilization of the grant-in-aid by an educational institution can be imposed. All that Article 30(2) states is that on the ground that an institution is under the management of a minority, whether based on religion or language, grant of aid to that educational institution cannot be discriminated against, if other educational institutions are entitled to receive aid. The conditions for grant or non-grant of aid to educational institutions have to be uniformly applied, whether it is a majority-run institution or a minority-run institution.’
10. In a case involving similar issue as to whether a minority institute receiving an aid is bound by the conditions imposed by the Government, this Court in a recent decision in case of State of Uttar Pradesh Vrs. Principal Abhay Nandan Inter College, 2021 SCC OnLine SC 807 observed as under:
‘32. When it comes to aided institutions, there cannot be any difference between a minority and non-minority one. Article 30 of the Constitution of India is subject to its own restrictions being reasonable. A protection cannot be expanded into a better right than one which a non-minority institution enjoys. Law has become quite settled on this issue and therefore does not require any elaboration.
33. Thus, on the aforesaid issue we have no hesitation in reiterating the principle that an institution receiving aid is bound by the conditions imposed and therefore expected to comply. Once we hold so, the challenge made on various grounds, falls to the ground.”
DISCUSSIONS AND ANALYSIS:
11. Cognizance of different provisions guiding the field and the conspectus of decisions of the Hon9ble Supreme Court of India as well as this Court as referred to above, unequivocally lead to construe that merely because the School comes within the fold of Grant-in-Aid, that ipso facto would not take away the status of the MEI and the right to administer and manage the affairs of such educational institution. The right of the State may be extended to regulate education, educational standards and allied matters, yet prescription of conditions of service would be with the minority-run educational institution. Such purport has already been enshrined in the Odisha Education Act, 1969 in Section 2. The provision in Section 2 interdicts the application of the Act to educational institutions “established and administered by minorities having the right under clause (1) of Article 30 of the Constitution”. This Court in Rt. Rev. Lingaraj Tandy Vrs. State of Odisha, 2002 (II) OLR 265 quoted the following from S. Azeez Basha Vrs. Union of India, (1968) 1 SCR 833:
“Article 30(1) postulates that the religious community will have the right to establish an educational institution of their choice meaning thereby that where a religious minority established an educational institution it will have the right to administer that.”
11.1. In the said Judgment of Rt. Rev. Lingaraj Tandy, 2002 (II) OLR 265, this Court observed as follows:
“Yet another contention raised by the opposite party No.3 in his counter affidavit is that there have been members in the Managing Committee of Nav Jeevan Vidyapitha, Bolangir; who did not belong to the Christian community. Once an educational institution has been established by a religious minority community, the religious minority community will have the right to administer such educational institution and such right to administer will obviously include the right to choose members of the Managing Committee of any community they like. A contention has also been raised in the counter affidavit of the opposite party No.3 that the teaching staff of Nav Jeevan Vidyapitha, Bolangir are from all communities.The fact that the teaching staff of an educational institution established by religious minority are also from other religious communities will not affect the minority character of the educational institution.”
11.2. Admitted position by the parties to the writ proceeding has been culled out by the appellant as follows (see written note submitted by the appellant before the learned Single Judge):
“In the cause title of the writ petition, it is stated as under:
In the matter of: an application relating to service condition of an employee working under the minority managed aided educational institution;
In paragraph 3 of the writ petition, it is averred as under:
That so far as the status of the Christ Collegiate School is concerned, admittedly the said school is a minority managed aided educational institution coming under Article 30 of the Constitution of India, so also the said school is a minority managed aided educational institution. ***
In paragraph: 8 of the writ petition, it is averred as under:
88. That while the Petitioner was so continuing as Headmaster-in-Charge of the school, suddenly the Opp. Party No. 5 who is neither the Disciplinary Authority nor the Appointing Authority, of the Petitioner, has placed the petitioner under suspension w.e.f. 11.10.2022, pursuant to the decision taken by the so called Executive Committee of Cuttack Christian Education Board (CCEB) dated 10.10.2022 and the Petitioner has been served with four pages letter issued by the Opp. Party No. 5, whereby the Petitioner has been placed under suspension in contemplation of Disciplinary Proceeding w.e.f. 11.10.2022 and he was also directed to hand over the charge of the office of Headmaster of Christ Collegiate School, Cuttack to one Rajendra Prasad Samal ***’ ***”
11.3. The appellant further brought on record by way of counter affidavit the document dated 25.05.2019 showing appointment of the respondent No.1 as Headmaster of the Christ Collegiate School by the CCEB.
The text of said document runs as follows:
“To
Sri Prafulla Kumar Sahoo
Sr. Teacher, Christ Collegiate School,
Cuttack
Dear Sri Sahoo,
The Executive Committee of Cuttack Christian Education Board, CCEB the appointing authority of the Headmaster of Christ Collegiate School as per the constitution of CCEB after careful consideration the Executive Committee of CCEB has been pleased to appoint you as the Headmaster of the school w.e.f. 01.06.2019 forenoon. The above decision was taken in the Executive Committee Meeting of CCEB held on 24.05.2019 23 Smt. Sanjukta Pradhan is going to retire on 31 May 2019, on attaining the age of superannuation.
You are hereby directed to take over charge of the office of the Headmaster. Christ Collegiate School, Cuttack positively on 31 May 2019 afternoon from Smt. Sanjukta Pradhan, the present Headmaster of the school, copy of which be endorsed to the indersigned.
You are directed to do the needful and execute tire decision as stated above.
Yours’ sincerely
Sd/- 25.05.2019
(Rabindra Kumar Das)”
11.4. Responding to said letter, the respondent No.1 has submitted following letter:
“To
The Secretary, C.C.E.B Cuttack.
(Through the Headmaster
Christ Collegiate School Cuttack.)
Sub.: Assumption of charges as the Headmaster of Christ Collegiate School Cuttack.
Ref.: Letter dated 25.05.2019.
Sir
With due respect I Sri Prafulla Kumar Sahoo, Asst Tr. TGT of the School do hereby declare that, pursuance to the decision taken by the Executive Committee of CCEB held on 24.05.2019, I am very much thank full before your kind-self providing me opportunity to me appoint to act as the post of Headmaster of the School from 01.06.2019, for which I am very much obliged and gladly, accept the decision and intended to accept to act as such. Further I am to request that the CCEB may kindly provide their heartiest Co-operation enabling me to act as the Headmaster of the School for the all-round development of the School in future.
This is for favour of your kind information and necessary action.
Date-27.05.19 Yours faithfully
Sd/- 27.05.2019
Prafulla Kumar Sahoo
Asst. Tr. TGT
Christ Collegiate School,
Cuttack”
11.5. Laying emphasis on such documents, Sri Susanta Kumar Dash, learned counsel for the appellant submitted that misleading statements have been made by the respondent No.1, which warranted dismissal of the writ petition itself without entering into the merit of the matter.
11.6. Needless to repeat that in view of well-settled principle as enunciated in R.P. Kapur Vrs. Union of India, AIR 1964 SC 787 “ (1964) 5 SCR 431, the CCEB being the appointing authority, as conceded to by the respondent No.1 as also the appellant, and in view of Letter dated 25.05.2019 of the CCEB and Letter dated 27.05.2019, i.e., joining report of Sri Prafulla Kumar Sahoo-respondent No.1 submitted to the CCEB, the employer can suspend an employee-Headmaster pending an enquiry into his conduct and the only question that can arise on such suspension will relate to the payment during the period of such suspension.
11.7. At this stage, on perusal of impugned Judgment dated 02.05.2023, it is transpired that the learned Single Judge has proceeded on the following basis:
“7.1. ***After coming into force of the National Commission of Minority Educational Institution Act, 2004, the School has to make an application before the Commission for its declaration as a Minority Managed Educational Institution. Since no document has been filed by Opposite Party No.5 showing such certificate having been obtained from the Commission, the stand taken by the Opposite party no.5 that the School is a Minority Managed Educational Institution, is not acceptable. In absence of any such certificate and the School being an aided Educational Institution with having duly constituted Managing Committee so approved under Annexure-2, opposite party No.5 is not competent to take any disciplinary action against the petitioner.
7.2. *** It is also found that since the School in question has not obtained the certificate from the National Commission for Minority Educational Institution which was held by this Court in its judgment dated 26.06.2012 in the case of Dr. Shyamal Kumar Saha, as cited supra, the plea taken by the Opposite party No.5 that Christ Collegiate School is a Minority Educational Institution is not acceptable to this Court.”
11.8. When the respondent No.1 has himself accepted the position of Headmaster (in-charge) by submitting letter of assumption of charge to the Secretary, CCEB pursuant to decision of the Executive Committee of CCEB, there is no escape from saying that the Christ Collegiate School is not a minority administered school. As the scope of interference with the Judgment of the learned Single Judge in the intra-Court appeal is limited, it is, in the instant fact-situation, deemed necessary to examine whether there occurred any error of law in arriving at such conclusion.
11.9. Noteworthy here to make a reference to the following observation of the Hon9ble Supreme Court of India in K. Lubna Vrs. Beevi, (2020) 2 SCC 524 “ (2020) 1 SCR 967:
“9. On the legal principle, it is trite to say that a pure question of law can be examined at any stage, including before this Court. If the factual foundation for a case has been laid and the legal consequences of the same have not been examined, the examination of such legal consequences would be a pure question of law (Yeswant Deorao Deshmukh Vrs. Walchand Ramchand Kothari, 1950 SCR 852).
10. No doubt the legal foundation to raise a case by including it in the grounds of appeal is mandated. Such mandate was fulfilled by moving a separate application for permission to urge additional grounds, a course of action, which has already been examined by, and received the imprimatur of, this Court in Chittoori Subbanna Vrs. Kudappa Subbanna, AIR 1965 SC 1325.
11. We may also usefully refer to what has been observed by Lord Watson in Connecticut Fire Insurance Co. Vrs. Kavanagh, 1892 AC 473 in the following words:
‘*** When a question of law is raised for the first time in a court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea. The expediency of adopting that course may be doubted when the plea cannot be disposed of without deciding nice questions of fact in considering which the court of ultimate review is placed in a much less advantageous position than the courts below.”
12. In our view, the aforesaid succinctly sets forth the parameters of scrutiny, where the question of law is sought to be raised at the final court stage. There are no “nice questions of fact” required to be decided in the present case which would dissuade us from examining this plea at this stage. We have set forth the undisputed facts aforesaid. Thus, the only question is whether this is a question of law which deserves to be examined, and has ramifications in the present case.’
11.10. The Hon9ble Supreme Court of India in the case of N. Ramachandra Reddy Vrs. State of Telengana, (2019) 11 SCR 792 delineated the scope of intra-Court appeals by making following observation:
“43. Further, in the case of Management of Narendra & Company Pvt. Ltd. Vrs. Workmen of Narendra & Company, (2016) 3 SCC 340, while considering the scope of the intra court appeal, this Court has held that, unless Appellate Bench concludes that findings of the learned Single Judge are perverse, it shall not disturb the same.”
11.11. In Management of Narendra & Company Pvt. Ltd. Vrs. Workmen of Narendra & Company, (2016) 3 SCC 340, it has been observed as follows:
“Be that as it may, in an intra-Court appeal, on a finding of fact, unless the appellate Bench reaches a conclusion that the finding of the Single Bench is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by the Single Judge, unless both sides agree for a fairer approach on relief.”
11.12. In Triveni Rubber & Plastics Vrs. Collector of Central Excises, Cochin, AIR 1994 SC 1341 “ (1994) 3 SCC (Supp) 665, it has been held that the order suffers from perversity in case some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration or where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings. In Kuldeep Singh Vrs. Commissioner of Police, (1999) 2 SCC 10, it is held that if a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever, compendious it may be, the conclusion would not be treated as perverse and the findings would not be treated as perverse and the findings would not be interfered with. In Gaya Din Vrs. Hanuman Prasad, AIR 2001 SC 386 “ (2001) 1 SCC 501, it has been laid down that order of an authority is perverse in the sense that the order is not supported by the evidence brought on record or it is against the law or it suffers from the vice of procedural irregularity.
12. Whether or not a finding of fact recorded by the learned Single Judge is according to law, is required to be seen on the touchstone whether such finding of fact is based on some legal evidence or it suffers from any illegality like misreading of the evidence or overlooking and ignoring the material evidence altogether or suffers from perversity or any such illegality or such finding has resulted in gross miscarriage of justice. Such being the position as regards the scope of interference in writ appeal against the Judgment of the learned Single Judge, the question falls for investigation is whether, on interpretation of the provisions, the finding returned that the Christ Collegiate School is not minority education institution in absence of no objection certificate under the NCMEI Act, 2004, is perverse?
13. Regard being had to provision of Section 2 of the Odisha Education Act, 1969 that said Act has no application to educational institution “established and administered by minorities having the right under clause (1) of Article 30 of the Constitution” and no notification of the Government with regard to administration of educational institution in terms of proviso thereto being cited by none of the parties to the present proceeding, it is, thus, obvious that the rules framed thereunder would also have no application to the Christ Collegiate School.
13.1. This Court while making excursion into the legal position as set forth by the Courts in view of the case laws referred to supra, there is no ambiguity that in absence of Certificate from the NCMEI, New Delhi, the minority status of the Christ Collegiate School, Cuttack which is established way back in the year 1883 under the aegis of the Cuttack Christian Education Board, a society registered under the Societies Registration Act, 1860, is competent to proceed with as per the terms of its Constitution/Bye-law and Rules of Business appended to such Constitution and in view of authoritative pronouncement in R.P. Kapur (supra).
13.2. Bare reading of Section 10 of the National Commission for Minority Educational Institutions Act, 2004, it is apparent that “any person who desires to establish a Minority Educational Institution may apply to the competent authority for the grant of no objection certificate for the said purpose”. In the present case, the parties appearing before the learned Single Judge missed to draw attention to the very basic fact that such a certificate is necessary in respect of Minority Educational Institution which is desired to be established. However, the Christ Collegiate School, Cuttack being already established School by group of people belonging to Christian community in the year 1883, there was no requirement for obtaining such certificate and the status of Minority-run Educational Institution did not cease.
13.3. First of all, the NCMEI Act, 2004, by virtue of Section 1(3) thereof came into force with effect from 11.11.2004. Section 10 thereto employed the expression “any person, who desires to establish a Minority Educational Institution, may apply to the competent authority for the grant of no objection certificate”. The term “desires” itself is indicative of circumstance that the establishment of “Minority Educational Institution” is under contemplation. The expression “desires to establish a Minority Educational Institution” admits of no ambiguity that it is an action of the future, but at no stretch of imagination it can relate to past completed action. Under such eventuality, the application for grant of no objection certificate as required to be made under Section 10 of the NCMEI Act, 2004, is optional, as the use of the word “may” in the expression “may apply to the competent authority for the grant of no objection certificate” makes it abundantly clear.
13.4. In this regard suffice it to take note of interpretation of the word “may” as stated in paragraphs 49 and 50 of State Tax Officer Vrs. Rainbow Papers Ltd., (2023) 9 SCC 545 “ 2022 SCC OnLine SC 1162 by the Hon’ble Supreme Court of India, while dismissing review against said Judgment in Sanjay Kumar Agarwal Vrs. State Tax Officer, 2023 SCC OnLine SC 1406:
“49. Section 31(1) of the IBC which empowers the Adjudicating Authority to approve a Resolution Plan uses the expression “it shall by order approve the resolution plan which shall be binding …” subject to the condition that the Resolution Plan meets the requirements of subsection (2) of Section 30. If a Resolution Plan meets the requirements, the Adjudicating Authority is mandatorily required to approve the Resolution Plan. On the other hand, sub-section (2) of Section 31, which enables the Adjudicating Authority to reject a Resolution Plan which does not conform to the requirements referred to in sub-section (1) of Section 31, uses the expression “may”.
50. Ordinarily, the use of the word “shall” connotes a mandate/binding direction, while use of the expression “may” connotes discretion. If statute says, a person may do a thing, he may also not do that thing. Even if Section 31(2) is construed to confer discretionary power on the Adjudicating Authority to reject a Resolution Plan, it has to be kept in mind that discretionary power cannot be exercised arbitrarily, whimsically or without proper application of mind to the facts and circumstances which require discretion to be exercised one way or the other.”
13.5. It is trite that no provision of a statute nor any word used therein is without any meaning or purpose. A reading and interpretation of a provision rendering any other provision of the Act as otiose is impermissible. The provisions of an Act have to be read and understood harmoniously with the other provisions of the same Act keeping in mind the scheme of such Act. Reference may be made in this regard to the decisions of the Supreme Court in Municipal Corporation of City of Hubli Vrs. Subha Rao Hanumatharao Prayag, (1976) 4 SCC 830; Arjan Singh Vrs. State of Punjab, AIR 1970 SC 703; Pallawi Resources Ltd. Vrs. Protos Engineering Co. (P) Ltd, (2010) 5 SCC 196; Sultana Begum Vrs. Prem Chand Jain, (1997) 1 SCC 373; Anwar Hasan Khan Vrs. Mohd. Shafi, (2001) 8 SCC 540.
13.6. In absence of definition of “desire”, the meaning ascribed to it in the dictionary can be adopted in order to construe true purport of Section 10 and requirement of obtaining no objection certificate from NCMEI. It is trite that the dictionary meaning of a word cannot be looked at where the word has been statutorily defined or judicially interpreted. But where there is no such definition or interpretation, the Courts may take aid of dictionaries to ascertain the meaning of a word in common parlance. In doing so the Court must bear in mind that a word is used in different senses according to its context and a dictionary gives all the meanings of a word and the Court has, therefore, to select the particular meaning which is relevant to the context in which it has to interpret that word. [Vide, State of Odisha Vrs. Titaghur Paper Mills Company Limited, AIR 1985 SC 1293 “ 1985 SCR (3) 26 “ 1985 (Supp) SCC 280]. If no specific definition has been given to a word or phrase in the Act, then the meaning attached to the same in the dictionary is to be taken as external aid for interpretation of the same. Dictionaries could always be referred to in order to ascertain not only the meaning of the word, but also the general use of it. Refer, Coca-Cola Company of Canada Ltd. Vrs. Pepsi-Cola Company of Canada Ltd., AIR 1942 PC 40. When the context makes the meaning of a word quite clear, it becomes unnecessary to search for and select a particular meaning out of the diverse meanings a word is capable of, according to lexicographers. See, Mangoo Singh Vrs. Election Tribunal, AIR 1957 SC 871; Workmen Vrs. Management, D.T.E., AIR 1958 SC 353; Ramavatar Vrs. Assistant STO, AIR 1961 SC 1325; Sk. Gulfan Vrs. Sanat Kumar, AIR 1965 SC 1839. If the Act does not define a word, the Legislature must be taken to have used that word in its ordinary dictionary meaning; held in South Bihar Sugar Mills Ltd. Vrs. Union of India, AIR 1968 SC 922. Meanings of words used in Acts of Parliament are not necessarily to be gathered from dictionaries which are not authorities on what Parliament must have meant. Nevertheless, it was also indicated there that, where there is nothing better to rely upon, dictionaries may be used as an aid to resolve an ambiguity. The ordinary dictionary meaning cannot be discarded simply because it is given in a dictionary. To do that would be to destroy the literal rule of interpretation. This is a basic rule relying upon the ordinary dictionary meaning which, in the absence of some overriding or special reasons to justify a departure, must prevail. Reference may be had to CWT Vrs. Officer-in-Charge (Court of Wards), (1976) 3 SCC 864; Purna Chandra Mohapatra Vrs. State of Odisha, 2022 (I) ILR-CUT 796.
13.7. Black9s Law Dictionary, Revised Fourth Edition of 1968, describes the term “desire” as follows:
“DESIRE. To ask, to request. Fossett v. State, 34 Okl.Cr. 106, 245 P. 668, 669. Ordinarily, to wish for more or less earnestly. Woods v. Postal Telegraph-Cable Co., 205 Ala. 236, 87 So. 681, 684, 27 A.L.R. 834. Sometimes, to empower or authorize. Walters’ Guardian v. Ransdell, 218 Ky. 267, 291 S.W. 399, 400. According to context or circumstances, the word may import a request or even a demand. Cleveland Clinic Foundation v. Humphrys, C.C.A.Ohio, 97 F.2d 849, 857, 121 A. L.R. 163. This term, used in a will in relation to the management and distribution of property, has been interpreted by the courts with different shades of meaning, varying from the mere expression of a preference to a positive command. See In re Bearinger's Estate, 336 Pa. 253, 9 A.2d 342, 343; Beakey v. Knutson, 90 Or. 574, 174 P. 1149, 1150. The word “desire” may be as effective as if the word “devise” or “bequeath” Rad been used. Drinkard v. Hughes, Tex.Civ.App., 32 S.W.2d 935, 936. The word “desire,” in a will, raises a trust, where the objects of that desire are specified; Vandyck v. Van Beuren, 1 Cai. (N.Y.) 84.”
13.8. The word “desire” has been explained in Oxford Advanced Learner’s Dictionary of Current English, by A.S. Hornby with A.P. Cowie, Eighth Impression, 1985, in the following manner:
“desire1… n 1(U) strong longing; strong sexual attraction; [C] instance of this; earnest wish: He has no/not much desire for wealth. He works hard from a desire to become rich. He spoke about his country9s desire for friendly relations/that friendly relations should be established. It is impossible to satisfy all their desires. 2 (sing) request: at the desire of Her Majesty. 3 [C] thing that is wished for: I hope you will get all your heart9s desires, all you wish for.
desire2 … vt… 1 (formal) long for; wish; have a desire (1) for: we all desire happiness and health. Our rooms at the hotel were all that could be desired, were quite satisfactory. What do you desire me to do? 2 (official style) request: It is desired that this rule shall be brought to the attention of the staff.”
13.9. Webster’s Universal College Dictionary, published by Gramercy Books, a division of Random House Value Publishing, Inc., 1997 Edition, defined the word “desire” to mean:
“desire … v. 3sired, -siring, n. 3 v.t. 1. to wish or long for; crave; want. 2. to ask for; solicit; request; The mayor desires your presence at the meeting4 n. 3. a longing or craving, as for something that brings satisfaction; hunger. 4. an expressed wish; request. 5. something desired. 6. sexual appetite or a sexual urge. 3desirer. n 3desireingly, adv. 3desirous, adj.”
13.10. Gainfully, it may be noticed the meaning of “desire” as stated in Ram Dass Vrs. Ishwar Chander, (1988) 3 SCC 131 “ AIR 1988 SC 1422:
“11. Statutes enacted to afford protection to tenants from eviction on the basis of contractual rights of the parties make the resumption of possession by the landlord subject to the satisfaction of certain statutory conditions. One of them is the bona fide requirement of the landlord, variously described in the statutes as “bona fide requirement”, “reasonable requirement”, “bona fide and reasonable requirement” or, as in the case of the present statute, merely referred to as “landlord requires for his own use”. But the essential idea basic to all such cases is that the need of the landlord should be genuine and honest, conceived in good faith; and that, further, the court must also consider it reasonable to gratify that need. Landlord’s desire for possession however honest it might otherwise be, has inevitably a subjective element in it and that, that desire, to become a “requirement” in law must have the objective element of a “need”. It must also be such that the court considers it reasonable and, therefore, eligible to be gratified. In doing so, the court must take all relevant circumstances into consideration so that the protection afforded by law to the tenant is not rendered merely illusory or whittled down.”
13.11. In Rahabhar Productions Pvt. Ltd. Vrs. Rajendra K. Tandon, (1998) 4 SCC 49 it has been observed as follows:
“18. The phrase “bona fide need” or “bona fide requirement” occurs not only in the Delhi Rent Control Act but in the Rent Control legislation of other States also. What is the meaning of this phrase has been considered innumerable times by various High Courts as also by this Court and requires no citations to explain its legal implications. Even then reference may be made to the decision of this Court in Ram Dass Vrs. Ishwar Chander, (1988) 3 SCC 131 “ AIR 1988 SC 1422, in which it was indicated that “bona fide need” should be genuine, honest and conceived in good faith. It was also indicated that landlord’s desire for possession, however honest it might otherwise be, has, inevitably, a subjective element in it. The “desire” to become “requirement” must have the objective element of a “need” which can be decided only by taking all relevant circumstances into consideration so that the protection afforded to a tenant is not rendered illusory or whittled down. These observations were made in respect of the provisions contained in E.P. Urban Rent Restriction Act, 1949.”
13.12. From the aforesaid it is construed that Section 10(1) of NCMEI Act, 2004 (which Act came into force with effect from 11.11.2004 by virtue of Section 1(3) ibid.) operates prospectively. The meaning and understanding of the term “desire” would make it crystal clear that the application for grant of “no objection certificate” has future element. Thus, the terms “desire” and “need” have different meanings. A need refers to something that is necessary for survival or well-being, while a desire refers to something that is not essential but is wanted or wished for. The use of the word 8may9 would indicate that any person who wishes to establish minority educational institution may, at his discretion, apply for grant of no objection certificate. There appears no element of mandatory requirement for making application to obtain such certificate. Nevertheless, in the instant case, there is no “desire” to establish Minority Educational Institution, but the Christ Collegiate School had already been established in 1883 and has been following the procedure as incorporated in the Constitution of CCEB and Rules of Business forming part thereto.
14. Another pertinent fact which deserves mention here is that Single Bench of this Court rendered a Judgment in Pradeep Kumar Dhal Vrs. State of Odisha, 2023 (II) ILR3 CUT 569 in the context of the Christ College, Cuttack, which has been established pursuant to the same Constitution of the Cuttack Christian Education Board with the Rules of Business appended thereto as “Appendix-A” as that of the Christ Collegiate School appending Rules of Business as “Appendix-B”. One of the cases in the batch of matters contained in said reported Judgment was relating to disciplinary proceeding initiated after suspending staff of Christ College and this Court held as follows:
“10. In so far as the judgment of the Division Bench in the case of Dr. Shyamal Ku.Saha (supra) is concerned, it is to be noted that the same was a common judgment passed in respect of four writ applications filed by the petitioners therein to challenge the Resolutions of Minutes of Eighteenth Ordinary Meeting of Diocesan Council dated 9th-11th July, 2007 and the Minutes of the Governing Body of the College dated 06.10.2007 providing the modalities for appointment of Principal of the Stewart Science College. Further, the appointment/proposed appointment of the private opposite parties as Principal of the College was also under challenge. Since the question of maintainability was raised on the ground that Stewart Science College, Cuttack was a minority educational institution, the same was taken up as a preliminary issue and the common judgment was rendered. In so far as the decision of the Hon9ble Single Judge in Governing Body of Stewart Science College (supra) is concerned, the Division Bench held as follows:
“33. It is apparent from the above that the very same question of the Diocese to have not established the College was raised before the learned Single Judge. However, learned Single Judge arrived at the decision basing solely on the letter of the Director, of Public Instruction (Higher Education), Orissa bearing No.4010/83-16179 dated 18.3.1983 and the order of the Commission dated 11.9.2007. So far as order of the Commission is concerned, Annexure-9 to W.P.(C) No.2207 of 2012 fortifies the contention of the petitioners that order of the Commission related to Christ College, Cuttack only. Opposite parties have not placed any material to indicate that the order of the Commission dated 11.9.2007 related to Stewart Science College, Cuttack. So far as the letter dated 18.3.1983 of Director of Public Instruction (Higher Education), Orissa is concerned, the first para of the letter addressed to the Secretary to Government of Orissa in the Education Department reads:
‘I am directed to say that the Stewart Science College, Cuttack and Christ College, Cuttack being Minority Institutions are not governed and or Orissa Education Act, 1969 and rules framed there under as those the Institutions have been established and being administered by the Christian Minority. They are making the appointments of Lecturers by their own selection without taking candidates from the Ad hoc merit panel prepared by this Directorate as well as from the Selection Board on the grounds that they are Minority Institutions. Although these two Institutions are being managed and administered by the Minority Community, the Staff of the Institutions are receiving direct payment since the date of its introduction in the aided Colleges. In this connection it may be mentioned here that previously Government in their Letter No. 22369/EYS, dated 27.08.79 had decided that the payment of salaries to the Staff of these two Institutions through direct payment system should be stopped, a copy of the order based on this decision was communicated to both the Institutions in this Directorate Memo No. 32484 dtd.25.07.79. But subsequently Government in their No.27085/EYS, dated 03.08.79 have kept the said orders in abeyance and decided that pending finalization of the matter, the existing arrangement for making payment of salaries to the staff directly may continue Govt. order in the matter is awaited.’
In the last paragraph request has been made that Government order in the matter may be communicated at an early date. It is also worthwhile to observe that State Government have taken conflicting and contradictory stands with regard to the status of the Stewart Science College in different Writ Petitions. In W.P.(C) No. 2207 of 2012 stand of the Government is that Stewart Science College is a Minority Educational Institution entitled to protection under Article 30. However, in W.P.(C) No.7762 of 2004 stand of the Government was that the present Management or Governing Body having not established the College cannot claim the protection of administration of the College as envisaged under Article 30 of the Constitution.
In fact, learned Single Judge has categorically observed in the decision extracted above that the main ground on which the State resisted the rights of the Management was that the said College was established by BCTA and its management was handed over to the Diocese and as such the Diocese having not established the College has no rights to manage the institution. Also, in the counter affidavit filed on behalf of Director, Higher Education in W.P.(C) No.7579 of 2008 it has been pleaded that the impugned resolution passed by the Management in contravention of Government Resolution dated 9.3.1999 issued under the Act prescribing that Principals of Non-Government Aided Colleges may be appointed from among Readers/Lecturers (Selection Grade) is to be ignored as the same is illegal and the Management is estopped from deviation from the prescribed Rule framed by the Government since the College is receiving grant-in-aid on direct payment scheme. Vacillating stands of the State Government make the situation worse. Thus, learned Single Judge has not only placed reliance on the order of the Commission which did not relate to Stewart Science College, but also has not taken note of conflicting and contradictory stands of the State Government. Therefore, judgment passed by the learned Single Judge in Governing Body of Stewart Science College, Cuttack Vrs. State of Orissa, 2008 SCC OnLine Ori 21 “ AIR 2008 Ori 143 cannot be held to have finally determined the status of Stewart Science College as a Minority Educational Institution. Instead of entertaining the writ application, the learned Single Judge ought to have directed to get the dispute adjudicated by competent fact finding authorities in accordance with the mandate of Hon9ble Supreme Court in Manager, St. Thomas U.P. School Kerala and another Vrs. Commissioner & Secy. to General Education Deptt. and others (supra).9
Nothing further has been stated in so far as the Christ College is concerned. Nevertheless, reference having been made to the order of the National Commission as being relatable to Christ College only, it would be reasonable to hold that the Division Bench did not deem it proper to render any specific finding as regards the status of the Christ College. Moreover, there is nothing in the said judgment which would lead to the conclusion that the order of the Single Judge in so far as it relates to Christ College was diluted in any manner whatsoever. On the other hand, the writ petitions were disposed of by directing the Management of Stewart Science College, Cuttack to obtain necessary declaration from the National Commission regarding minority status within a period of two months. In view of the above discussion, it would rather be reasonable to hold that the finding of the Single Judge in so far it relates to Christ College stood impliedly affirmed by the Division Bench.
11. As was noticed by the Division Bench in Dr. Shyamal Ku. Saha (supra), the judgment of the Single Judge in deciding the minority status of both Stewart Science College, Cuttack and Christ College was based on the letter dated 18.03.1983 issued by the Director of Public Instructions (Higher Education), Odisha mentioning that the said Colleges being minority institutions are not governed under the Act, 1969 and Rules framed thereunder as they had been established and were being administered by Christian minority. There is a subtle but clear difference between Stewart Science College, Cuttack and Christ College, Cuttack. This is being said because till the time of rendering of the judgment by the Single Judge, Stewart Science College, Cuttack had not obtained any declaration from the National Commission. On the other hand, the Single Judge took note of the fact that there was an order by the National Commission (11.09.2007) in respect of Christ College. The Division Bench in Dr. Shyamal Ku. Saha (supra), therefore, directed the Management of Stewart Science College, Cuttack to obtain necessary declaration. Be it noted that Christ College was not a party to the cases before the Division Bench and therefore, it must be held that the order passed by the Single Judge, in so far as it relates to Christ College holds the field even till date. Such being the case, ordinarily no further determination would be required but as has been stated hereinbefore, the order of the Single Judge was based on letter dated 18.03.1983 and order dated 11.09.2007 of the National Commission. ***”
14.1. The review petition being RVWPET No.210 of 2023 and batch has been dismissed by judgment dated 14.12.2023. Since the aforesaid Judgment in Pradeep Kumar Dhal (supra) does relate to the Christ College, which has been established as Minority Educational Institution with the Constitution of same CCEB appended with identical set of Rules of Business (Appendix-A), by which also established the Christ Collegiate School, Cuttack (Appendix-B), this Court subscribes to the view expressed by the learned Single Judge in Pradeep Kumar Dhal (supra).
15. In view of decision rendered in St. Catherine Girls9 High School Vrs. State of Odisha, 2002 (Supp.) OLR 452 the position that emerges is that, there can be no estoppel against the fundamental rights guaranteed under Part-III of the Constitution. So merely because the Management has in the past approached the State Government seeking approval, permission etc., such action would not operate to nullify its status as a minority educational institution protected under Article 30(1) of Constitution of India. The constitutional protection of a fundamental right exists forever and cannot be diluted/nullified/ taken away by any act or conduct of any party.
16. It may not also be out of place to refer to the following observation contained in Pradeep Kumar Dhal & batch (supra):
“24. This Court finds that the very same question as posed above came up for consideration before the Apex Court recently in the case of St. Mary’s Education Society and Another Vrs. Rajendra Prasad Bhargava and others, reported in 2022 SCC OnLine SC 1091 “ (2023) 4 SCC 498. In the said case the following issues were framed for determination.
(a) Whether a writ petition under Article 226 of the Constitution of India is maintainable against a private unaided minority institution?
(b) Whether a service dispute in the private realm involving a private educational Institution and its employee can be adjudicated in a writ petition filed under Article 226 of the Constitution? In other words, even if a body performing public duty is amenable to writ jurisdiction, are all its decisions subject to judicial review or only those decisions which have public element therein can be judicially reviewed under the writ jurisdiction?
(c) Analyzing the law on the subject, the Apex Court held that the School discharges a public duty by imparting education, which is a fundamental right of the citizen. However, judicial review of the action challenged by a party can be had by resort to the writ jurisdiction only if there is a public law element and not to enforce a contract of personal service. It was further clarified that a contract of personnel service includes all matters relating to the service of employee4 confirmation, suspension, transfer and termination etc. It was therefore held that a writ of mandamus can be issued against a private body, which is not a ‘State’ within the meaning of Article 12 of the Constitution of India, but there must be a public law element involved and it cannot be exercised to enforce purely private contracts entered into by the parties. It was also held that in case of retirement and in case of termination, no public law element is involved. It also referred to the decision of the Apex Court in the case of Trigun Chand Thakur.
‘45. In the case of Trigun Chand Thakur v. State of Bihar, reported in (2019) 7 SCC 513, this Court upheld the view of a Division Bench of the Patna High Court which held that a teacher of privately managed school, even though financially aided by the State Government or the Board, cannot maintain a writ petition against an order of termination from service passed by the Management.’ ***”
17. The Hon’ble Supreme Court while deciding maintainability of the writ petition to exercise the power of judicial review in the context of service conditions vis-à-vis involvement of public element in the case of St. Mary’s Education Society Vrs. Rajendra Prasad Bhargava, 2022 SCC OnLine SC 1091 “ (2023) 4 SCC 498 “ (2022) 8 SCR 301 observed as follows (paragraph 28 of SCR):
“We may at the outset state that the CBSE is only a society registered under the Societies Registration Act, 1860 and the school affiliated to it is not a creature of the statute and hence not a statutory body. The distinction between a body created by the statute and a body governed in accordance with a statute has been explained by this Court in the Executive Committee of Vaish Degree College Vrs. Lakshimi Narain, (1976) 2 SCC 58, as follows:
‘It is, therefore, clear that there is a well marked distinction between a body which is created by the statute and a body which after having come into existence is governed in accordance with the provisions of the statute. In other words, the position seems to be that the institution concerned must owe its very existence to a statute which would be the fountain-head of its powers. The question in such cases to be asked is, if there is no statute would the institution have any legal existence. If the answer is in the negative, then undoubtedly it is a statutory body, but if the institution has a separate existence of its own without any reference to the statute concerned but is merely governed by the statutory provisions it cannot be said to be a statutory body.’ ***”
CONCLUSION & DECISION:
18. This Court in view of the aforesaid analysis, is of the considered view that since the Christ Collegiate School being established in the year 1883 and admitted and conceded by the Respondent No.1 in his writ petition that the School is a Minority-run Educational Institution, and was appointed by the CCEB, the employees including the Headmaster-Respondent No.1, are to abide by Rules of Business appended to the Constitution of the CCEB. To reiterate, it may be said that “No Objection Certificate”, if at all is required by any MEI in terms of the NCMEI Act, 2004, application is to be made by a person “who desires to establish such MEI”. None of the parties has drawn attention of this Court to any provision requiring “No Objection Certificate” for existing Minority-run Educational Institution.
18.1. As the learned Single Judge in the impugned Judgment dated 02.05.2023 has proceeded on the basis of submissions made before him by the parties, as if there is requirement of certificate from the NCMEI under the Act of 2004 qua the existing Minority-run Educational Institution, there is apparent flaw in the impugned Judgment dated 02.05.2023. Hence, in this intra-Court appeal, this Court is inclined to interfere with the Judgment dated 02.05.2023 delivered by the learned Single Judge.
19. The legal position as set at rest in St. Mary’s Education Society Vrs. Rajendra Prasad Bhargava, 2022 SCC OnLine SC 1091 “ (2023) 4 SCC 498 “ (2022) 8 SCR 301 that writ jurisdiction cannot be invoked in case action impugned before the writ Court has no nexus with public element, even though private body in question may be discharging public function, this Court is of the considered opinion that the Judgment of the learned Single Judge entertaining the writ petition is infirm and contrary to law laid down by the Hon’ble Supreme Court of India. As the learned Single Judge vide Judgment dated 26.04.2023 in case of Pradeep Kumar Dhal and batch (supra) held that the writ petition is not maintainable against the Christ College, Cuttack, by ascribing same reason, this Court also holds that the writ petition against the Christ Collegiate School, Cuttack, on the facts and in the circumstances of the case, is not maintainable.
20. As a consequence of above discussions the following would emerge:
(a) There is no mandatory requirement to obtain no objection certificate from NCMEI under the NCMEI Act, 2004, in case of existing MEI. To the effect that the learned Single Judge proceeded to hold that the stand taken by the appellant-CCEB that the Christ Collegiate School is a Minority managed Educational Institution “is not acceptable” based on the fact that there is absence of no objection certificate from NCMEI under the NCMCI Act, 2004 and the Christ Collegiate School being aided educational institution runs counter to legal perspective as discussed in the Judgments referred to supra and cannot be countenanced by the statutory provision contained in Section 10 of the NCMEI Act, 2004 read with Article 30 of the Constitution of India.
(b) Section 10 of the NCMEI Act, 2004 has application only when a minority community intends to establish an educational institution. In such connection a “no objection certificate” is required. There is no mandate to suggest that under the said Act, 2004, Minority Educational Institution is required to seek for a declaration.
(c) Therefore, it cannot be doubted that when a school has been established and managed by a Christian community, it definitely comes within the ambit of a Minority Education Institution. [Reference can be had to St. Paul’s Higher Secondary School Vrs. State of Kerala, 2020 SCC OnLine Ker 851 “ (2020) KLT 443].
(d) The reason assigned in the impugned Judgment dated 02.05.2023, being not in consonance with the principles laid down in the case laws referred to supra, this writ appeal is entertained and thereby this Court would set aside the Judgment of the learned Single Judge to hold that mere absence of no objection certificate under the NCMEI Act, 2004, would not corrode the status of the Christ Collegiate School, Cuttack, as Minority Educational Institution.
(e) Said view is fortified by reaffirmation of position in Corporate Educational Agency Vrs. James Mathew (2017) 15 SCC 595 following the statement contained in N. Ammad Vrs. Emjay High School, (1998) 6 SCC 674 to the effect that “the certificate of the declaration of minority status is only a declaration of an existing status. Therefore, there is no question of availability of the status only from the date of declaration. What is declared is a status which was already in existence.” [See also, Chandana Das (Malakar) Vrs. The State of West Bengal, (2019) 12 SCR 631].
(f) Furthermore, on the anvil of ratio laid down in St.Mary’s Education Society Vrs. Rajendra Prasad Bhargava, 2022 SCC OnLine SC 1091 “ (2023) 4 SCC 498 “ (2022) 8 SCR 301 that in absence of involvement of public element in service matter, the writ of mandamus would not be apt to be issued against private body which is not constituted under a statute. In the said Judgment the Hon’ble Supreme Court of India has clarified as follows:
“In view of the aforesaid discussion, we hold that the learned single Judge of the High Court was justified in taking the view that the original writ application filed by the respondent No. 1 herein under Article 226 of the Constitution is not maintainable. The Appeal Court could be said to have committed an error in taking a contrary view.”
(g) It is, therefore, held that entertainment of the writ petition against the Christ Collegiate School, Cuttack, a Minority Educational Institution, in the context of service matter which has no involvement of public element, and direction contained in the impugned Judgment dated 02.05.2023 is not in conformity with the ratio of St. Mary’s Education Society (supra), this Court has the power to exercise jurisdiction under Article 4 of the Odisha High Court Order, 1948 read with Clause 10 of the Letters Patent constituting the High Court of Judicature at Patna and Rule 6 of Chapter-III of the Rules of the High Court of Odisha, 1948.
(h) As the Christ Collegiate School has not lost its status and as is well-settled that the certificate of the declaration of minority status is only a declaration of an existing status and therefore, there is no question of availability of the status only from the date of declaration, the Odisha Education Act, 1969 has no application to said School, thereby the rules framed thereunder cannot be aid of in taking action against the employees. It is clarified that the Rules of Business as forming part of Constitution of the Cuttack Christian Education Board would be attracted more particularly when the respondent No.1 has accepted the appointment to function as Headmaster in-charge pursuant to decision of the Cuttack Christian Education Board.
(i) Under such premise, the legal maxim allegans contraria non est audiendus meaning thereby, a person is not to be heard to allege the contrary, would apply. Sri Prafulla Kumar Sahoo, while working in the capacity of Assistant Teacher (TGT) of the Christ Collegiate School, declared in his Letter dated 27.05.219 that, in pursuance of the decision taken by the Executive Committee of CCEB, whereby he was given opportunity to act as the Headmaster of the School from 01.06.2019, and joined in the said post by accepting the decision. Therefore, having accepted the CCEB, as appointing authority, subsequent to joining in the post of Headmaster, by way of filing writ petition he is estopped from turning around to say that the Executive Committee of CCEB is not the appointing authority and question the competency of said CCEB to take action in terms of Rules of Business contained in Appendix-B as appended to the Constitution of the Cuttack Christian Education Board.
(j) Apparent fallacy in the Judgment dated 02.05.2023 of the learned Single Judge that absence of certificate of no objection in respect of the Christ Collegiate School, Cuttack per se effaces the status of MEI, being perverse and contrary to law as set forth by different Courts as referred to supra, renders the Judgment vulnerable and, hence entertaining the writ appeal this Court sets aside the impugned Judgment.
21. Having set aside the Judgment dated 02.05.2023 in W.P.(C) No.34817 of 2022, with the aforesaid observation this writ appeal stands disposed of accordingly, but in the circumstances without any order as to costs.
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