LAW FOR ALL

Whether the Sections 8, 10, 11 and 12 of the West Bengal Madrasah Service Commission Act, 2008 (“the Commission Act”, for short) are ultra vires. ? the Division Bench of the High Court1 dismissing A.S.T. No.192 of 2014 and other connected matters and thereby affirming the decision of the Single Judge of the High Court passed on 12.03.2014 in Writ Petition No.20650 (W) of 2013 which in turn had found Sections 8, 10, 11 and 12 of the West Bengal Madrasah Service Commission Act, 2008 (“the Commission Act”, for short) to be ultra vires Apex court held that We are aware that in Brahmo Samaj Education Society24 , Sindhi Education Society7 and Chandana Das (Malakar)33 , decided after TMA Pai Foundation8 , this Court had also dealt with the question whether the concerned authorities could validly nominate teachers to be appointed in minority educational institutions. Brahmo Samaj Education Society24 did not specifically deal with the question whether rules were valid or not and left it to the authorities to bring the rules and regulations in conformity with the principles in TMA Pai Foundation8 case. Sindhi Education Society7 dealt with the issue in the context of reservation. It also found that the teachers nominated by the concerned authorities would not be compatible to teach in educational institutions run by linguistic minorities. In Chandana Das (Malakar)33 the basic issue was whether the concerned institution was a minority institution or not. Sindhi Education Society7 and Chandana Das (Malakar)33 dealt with statutory regimes which did not have any special features or matters concerning compatibility of teachers Civil Appeal No.5808 of 2017 SK. MD. Rafique vs. Managing Committee, contai Rahamania High Madrasah and Others 150 which could be required going by the special characteristics of the minority educational institutions. However, the additional feature in the present matter shows that the composition of the Commission with special emphasis on persons having profound knowledge in Islamic Culture and Theology, would ensure that the special needs and requirements of minority educational institutions will always be taken care of and thus the present case stands on a different footing. We, therefore, have no hesitation in going by the test culled out in the TMA Pai Foundation8 and hold that the provisions of the Commission Act are not violative of the rights of the minority educational institutions on any count. 57. In the premises, while allowing these appeals, we set aside the view taken by the Single Judge and the Division Bench of the High Court and dismiss Writ Petition No.20650(W) of 2013 and other connected matters. We also hold Sections 8, 10, 11 and 12 of the Commission Act to be valid and constitutional. 58. In the end, we declare all nominations made by the Commission in pursuance of the provisions of the Commission Act to be valid and Civil Appeal No.5808 of 2017 SK. MD. Rafique vs. Managing Committee, contai Rahamania High Madrasah and Others 151 operative. However, if after the disposal of the matters by the High Court any appointments are made by the concerned Madarshas, such appointments of teachers shall be deemed to be valid for all purposes. But the Commission shall hereafter be competent to select and nominate teachers to various Madarshas in accordance with the provisions of the Commission Act and the Rules framed thereunder.