Case: CHANDANA DAS(MALAKAR) Vs. THE STATE OF WEST BENGAL AND OTHERS

follows: 126. In Behram Khurshid Pesikaka v. State of Bombay (1955) 1 SCR 13: AIR 1955 SC 123 : 1955 Cri LJ 215, Mahajan, C.J. speaking for the Constitution Bench, noted the link between the constitutional vision contained in the Preamble and the position of the fundamental rights as a means to facilitate its fulfilment. Through Part III embodies fundamental rights, this was construed to be a part of the wider notion of securing the vision of justice of the Founding Fathers and, as a matter of doctrine, the rights guaranteed were held not to be capable of being waived. Mahajan C.J., observed (AIR p. 146, para 52 : SCR pp. 653-54) 52. …We think that the rights described as fundamental rights are a necessary consequence of the declaration in the Preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity. These fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy 27. This being the law laid down by this Court, it is clear that both the reasons given by Banumathi, J. cannot be said to be correct, as per the law laid down by this Court. 28. Shri Chakraborty, learned Senior Advocate appearing on behalf of the State, raised an argument based on Article 350B. The said Article reads as follows: 350B. Special Officer for Linguistic Minorities (1) There shall be a Special Officer for linguistic minorities to be appointed by the President. (2) It shall be the duty of the Special Officer to investigate all matters relating to the safeguards provided for linguistic minorities under this Constitution and report to the President upon those matters at such intervals as the President may direct, and the President shall cause all such reports to be laid before each House of Parliament, and sent to the Governments of the States concerned. 29. This Article only sets up a Special Officer for linguistic minorities, to be appointed by the President, whose duty it is to investigate matters relating to safeguards provided for linguistic minorities and send reports to the President of India, which reports the President shall cause to be laid before each House of Parliament, and send to the Governments of the States concerned. Even a cursory reading of this Article cannot possibly lead to the conclusion that absent a report by the Special Officer, no linguistic minority can claim protection as such under Article 30(1) of the Constitution. 30. In point of fact, in D.A.V. College v. State of Punjab (1971) Supp. SCR 688, this Court held that where the challenge is to a State law, linguistic minority status would have to be determined State-wise (see page 696). This view has been reiterated by the Eleven Judge Bench in T.M.A. Pai Foundation (supra) (see pages 552, 553 and 587). 31. There can be no doubt that qua the State of West Bengal, Sikhs are a linguistic minority vis-à-vis their language, namely, Punjabi, as against the majority language of the State, which is Bengali. The argument of the learned counsel appearing on behalf of the State that the school is, in fact, teaching in the Hindi medium is neither here nor there. What is important is that the fundamental right under Article 30 refers to the establishment of the school as a linguistic minority institution which we have seen is very clearly the case, given paragraphs 5(a) and 5(b) of letter dated 19 th April, 1976. Therefore, the medium of instruction, whether it be Hindi, English, Bengali or some other language would be wholly irrelevant to discover as to whether the said school was founded by a linguistic minority for the purpose of imparting education to members of its community. This argument also, therefore, must be rejected. 32. Seeing the writing on the wall, the learned Senior Advocate appearing for the State made a fervent plea that we should refer this matter to the Constitution Bench, following the order in Shiromani Gurudwara Prabandhak Committee (supra) dated 18 th November, 2010. 33. This matter arose out of a judgment of the High Court of Punjab and Haryana dated 17 th December, 2007, as per which two notifications were issued under the Punjab Private Health Sciences Educational Institutions (Regulation of Admission, Fixation of Fee and Making of Reservation) Act, 2006, by which the aforesaid Sikh institutions were declared to be minority institutions within the State of Punjab. The High Court had held, following this Courts judgment in Bal Patil v. Union of India (2005) 6 SCC 690 , that the Sikhs were, in fact, population-wise the majority community in the State of Punjab, as a result of which the two notifications were struck down as being violative of Article 14 of the Constitution of India. It is in this backdrop that, by an order dated 18 th November, 2010, a Division Bench of this Court referred this matter to be heard along with other matters by a Constitution Bench. The other matter concerned Brahmo Samaj Education Society v. State of West Bengal, (2004) 6 SC 224, in which a review petition was allowed and directed to be heard by a Constitution Bench. In the aforesaid case, the challenge that was raised was grounded on Article 19(1)(g) of the Constitution of India and was not directly related to Article 30 of the Constitution of India. Obviously, this reference order is on different facts and would not avail the respondent State in the present case. 34. As a result, we are of the view that the judgment of Thakur, J. is correct in law.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. Before embarking on the questions raised in these appeals, it is important to first advert to the West Bengal Board of Secondary Education Act, 1963. It is enough to state that this Act establishes the West Bengal Board of Secondary Education and various Committees and Regional Examination Councils and then lays down their powers. Suffice it to say that it is no part of the powers and duties of the Board or of any authority set up therein to declare that a particular institution is, or is not, a minority institution12. A perusal of the Rules, as they stood prior to the 2008 amendment, would show that in case the provisions of Article 30 of the Constitution apply, further or other rules for the composition, powers, functions of the managing committee or committees of such institutions or class of institutions would be framed. It is admitted, as has been noticed in the judgment of Thakur, J. that no such Rules have been framed under Rule 3313. At this juncture, it may be noted that by a letter dated 19 th April, 1976, Respondent No.4 wrote to the Secretary, West Bengal Board of Secondary Education asking that it may be declared as a minority community institution and the special constitution for the same may be approved on that basis15. It is obvious on a reading of this document that whereas Rule 6 required only one representative of the Sikh community to be on the Management Board, there are three representatives appointed. Equally, whereas Rule 6 requires that there be six guardian representatives to be elected, only four are provided for by this letter. Thus, it cannot be said that by acceptance of this letter, Respondent No.4 has, in any manner, unequivocally waived its right to be treated as a minority institution. On the contrary, the application dated 19 th April, 1976, was to recognise it as a minority institution, and merely because Rule 8(3) of the Rules was purportedly applied, it does not mean that the minority character of the institution was not kept in mind while framing the special constitution for future management of the school. On facts, therefore, it is difficult to appreciate how the Respondent No.4 can be said to have waived its right to be treated as a linguistic minority institution set up by a linguistic minority, namely, the Sikhs in the State of West Bengal23. A reading of the aforesaid judgment would leave no manner of doubt that if Respondent No.4 is a minority institution, Rule 28 of the Rules for Management of Recognized Non-Government Institutions (Aided and Unaided) 1969, cannot possibly apply as there would be a serious infraction of the right of Respondent No.4 to administer the institution with teachers of its choiceWe have already noticed that the competent authorities set up by the aforesaid Act do not give any power to recognise a minority institution. For this reason, it is difficult to agree with the conclusion stated in paragraph 40 of judgment of Banumathi, J. Further, the letter dated 19 th April, 1976 would show that Respondent No.4 was started as a primary school by the Sikh community living in Kolkata to impart education to their children who came from Punjab, so that they may learn their mother tongue and religion, ethics etc. As a matter of fact, this aspect of the matter is no longer res integra26. We have held that it cannot be said that Respondent No.4 is, in any manner, estopped from claiming its minority status on the facts of this case. Quite apart from this, it is settled law that the fundamental right under Article 30 cannot be waived (See St. Xaviers (supra) at pages 260 to 262 per Mathew, J.; Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545   and 569 to 571.) In the recent judgment in K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 , Chandrachud, J. has echoed this sentiment as follows:126. In Behram Khurshid Pesikaka v. State of Bombay (1955) 1 SCR 13: AIR 1955 SC 123  : 1955 Cri LJ 215, Mahajan, C.J. speaking for the Constitution Bench, noted the link between the constitutional vision contained in the Preamble and the position of the fundamental rights as a means to facilitate its fulfilment. Through Part III embodies fundamental rights, this was construed to be a part of the wider notion of securing the vision of justice of the Founding Fathers and, as a matter of doctrine, the rights guaranteed were held not to be capable of being waived. Mahajan C.J., observed (AIR p. 146, para 52 : SCR pp. 653-54)52. …We think that the rights described as fundamental rights are a necessary consequence of the declaration in the Preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunityThese fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy27. This being the law laid down by this Court, it is clear that both the reasons given by Banumathi, J. cannot be said to be correct, as per the law laid down by this Court350B. Special Officer for Linguistic Minorities(1) There shall be a Special Officer for linguistic minorities to be appointed by the President(2) It shall be the duty of the Special Officer to investigate all matters relating to the safeguards provided for linguistic minorities under this Constitution and report to the President upon those matters at such intervals as the President may direct, and the President shall cause all such reports to be laid before each House of Parliament, and sent to the Governments of the States concerned29. This Article only sets up a Special Officer for linguistic minorities, to be appointed by the President, whose duty it is to investigate matters relating to safeguards provided for linguistic minorities and send reports to the President of India, which reports the President shall cause to be laid before each House of Parliament, and send to the Governments of the States concerned. Even a cursory reading of this Article cannot possibly lead to the conclusion that absent a report by the Special Officer, no linguistic minority can claim protection as such under Article 30(1) of the Constitution30. In point of fact, in D.A.V. College v. State of Punjab (1971) Supp. SCR 688, this Court held that where the challenge is to a State law, linguistic minority status would have to be determined State-wise (see page 696). This view has been reiterated by the Eleven Judge Bench in T.M.A. Pai Foundation (supra) (see pages 552, 553 and 587)32. Seeing the writing on the wall, the learned Senior Advocate appearing for the State made a fervent plea that we should refer this matter to the Constitution Bench, following the order in Shiromani Gurudwara Prabandhak Committee (supra) dated 18 th November, 201033. This matter arose out of a judgment of the High Court of Punjab and Haryana dated 17 th December, 2007, as per which two notifications were issued under the Punjab Private Health Sciences Educational Institutions (Regulation of Admission, Fixation of Fee and Making of Reservation) Act, 2006, by which the aforesaid Sikh institutions were declared to be minority institutions within the State of Punjab. The High Court had held, following this Courts judgment in Bal Patil v. Union of India (2005) 6 SCC 690 , that the Sikhs were, in fact, population-wise the majority community in the State of Punjab, as a result of which the two notifications were struck down as being violative of Article 14 of the Constitution of India. It is in this backdrop that, by an order dated 18 th November, 2010, a Division Bench of this Court referred this matter to be heard along with other matters by a Constitution Bench. The other matter concerned Brahmo Samaj Education Society v. State of West Bengal, (2004) 6 SC 224, in which a review petition was allowed and directed to be heard by a Constitution Bench. In the aforesaid case, the challenge that was raised was grounded on Article 19(1)(g) of the Constitution of India and was not directly related to Article 30 of the Constitution of India. Obviously, this reference order is on different facts and would not avail the respondent State in the present case34. As a result, we are of the view that the judgment of Thakur, J. is correct in law.