MD. Rafique vs. Managing Committee, contai Rahamania High Madrasah and Others CIVIL APPEAL NO.5808 OF 2017 on January 06, 2020
The bench comprising of Justice Arun Mishra and Justice UU Lalit passed an order for the appeal filed by Sk.Md. Rafique was brought in the Supreme Court.
The Court held that; All nominations made by the regulatory regime in the enactment of the provisions of the Commission Act to be valid and operational. But the nomination of the candidates shall hereafter be competent to select and nominate teachers to various Madarshas in accordance with the provisions of the Commission Act.
The Managing Committee of Contai Rahmania High Madrasah challenged the validity of Sections 8, 10, 11 and 12 of the Commission Act by filing the Writ Petition. The provisions were related to the process of appointment of teachers in an aided Madrasah, which was recognized as a minority institution. It was submitted that the provisions of the Commission Act transgressed upon the rights of a minority institution of choosing its own teachers. The submission was accepted by the Single Judge of the High Court and the Writ Petition was allowed. Aggrieved by this judgment some of the candidates including the appellant who had got the appointment as a teacher in the minority institution filed the appeal in the SC.
The question of fact is whether provisions of Act violate Article 30?
The sections 8,10,11,12 of the Commission Act are said as violative of Article 30 by the appellant. The bench’s opinion in this regard was that the right to appointment of the teachers should be protected in all cases irrespective of minority, majority institutions and it violates Article 30. The main essence of this article is to provide equal rights to all the institutions, the matter by whom it is being run should not be taken into account. The case TMA Pai Foundation was referred by this SC.
It also expressed that, “But if ensuring of excellence in educational institutions is the underlying principle behind a regulatory regime and the mechanism of selection of teachers is so designed to achieve excellence in institutions, the matter may stand on a completely different footing.”
The test between two classifications ie., religious institutions and secular institutions was done in the TMA Pai Foundation case was referred.
When the better capable teachers take part in their work in the majority institutions as they exercise their right ensured in Article 30, the remaining teachers can be employed in the minority institutions who may be over capable for such institutions. In this regard, the rights of the teachers in minority institutions are violated.
The SC questioned, “But if the candidates who are selected and nominated under the regulatory regime to impart education which is purely secular in character, are better qualified, would the minority institution be within its rights to reject such nomination only in the name of exercise of a right of choice? The choice so exercised would not be in pursuit of excellence. Can such a choice then be accepted?”
When the minority institution has offered better capable candidates than those who are recommended by the regulatory regime, the minority institutions can reject the nominations made to them by exercising their rights. The SC also made a point that when the minority institutions reject the nominations made by the regulatory regime even if the candidates are well capable then it can be said that those institutions are not using their rights in an efficient manner. Rights ensured in Article 30(1) will be misused.
“If the right has not been accepted to be absolute and unqualified and the national interest must always permeate and apply, the excellence and merit must be the governing criteria. It 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 Foundation and hold that the provisions of the Commission Act are not violative of the rights of the minority educational institutions on any count.”
All nominations made by the regulatory regime in the enactment of the provisions of the Commission Act to be valid and operational. But the nomination of the candidates shall hereafter be competent to select and nominate teachers to various Madarshas in accordance with the provisions of the Commission Act.
The appeal was allowed by the SC and the order of the Calcutta High Court was set aside.
View/Download the Judgment: SK. MD. Rafique vs. Managing Committee, contai Rahamania High Madrasah and Others
– Manusri Ramakrishna
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