The Supreme Court will next week hear a Madrasah Committee’s plea to refer a division bench judgment on right to appointment of teachers in madrasas to a larger bench. A CJI-led bench will decide whether the verdict delivered by the bench of Justices Arun Mishra and UU Lalit on Monday suffers from any deficiency and therefore if there is a need for it to be looked at by a larger bench.
The Contai Madrasah Committee mentioned before a CJI bench on Wednesday that the January 6 judgment of the apex court was per incuriam.
On Monday, the division bench had upheld the constitutional validity of the West Bengal Madrasah Service Commission Act, 2008, stating that there is no absolute and unqualified right of appointment for minority institutions. A state regulation, meant to appoint teachers and other staff in Madrasas, is not hit by Article 30(1) as it is in the national interest that every state government ensures the standard of excellence in educational institutions, including the ones belonging to minorities.
The apex court relied on the seven-judge bench decision in P.A. Inamdar and others v. State of Maharashtra (2005), which though was on the question of student admission and not teacher appointment, had a pertinent point of national interest made in it. Court said, “The discussion in that case shows that the admissions based on merit in professional educational institutions were found to be in the national interest and strengthening the national welfare.”
With regard to invoking Article 30 against the 2008 Act, the apex court discussed the ratio in Malankara Syrian Catholic College case (2007), stating, “the right conferred on minorities under Article 30 was only to ensure equality with majority and was not intended to place the minorities in a more advantageous position vis-à-vis the majority and that there was no reverse discrimination in favour of minorities and that the general laws of the land relating to national interest, would equally apply to minority institutions.”
An eleven-judge bench in TMA Pai Foundation case (2002) had laid down the principle that rules and regulations would apply equally to the majority institutions as well as to the minority institutions in so far as they further the national interest. Thus, if any regulations seek to ensure the standard of excellence of the institutions while preserving the right of the minorities to establish and administer their educational institutions, such regulations would not violate minority rights under Article 30(1).
The apex court thus upheld the nominations made under the 2008 Act declaring the competency of the Service Commission to select teachers for the institutions, while in the larger interest, also validating the appointments made till now by various Madrasahs.
The Madrasah Committee’s plea for reference to a larger bench calls this judgment and its reasoning as being dealt without due care, or per incuriam.
— India Legal Bureau