Notice issued in plea challenging SC judgment upholding WB Madrasah Service Commission’s power to nominate Madrasa teachers

The Supreme Court today issued notice in the petition filed challenging the correctness of the two-Judge Bench judgment rendered earlier this month, in which the constitutionality of Sections 8, 10, 11 and 12 of the West Bengal Madrasah Service Commission Act, 2008 (2008 Act) was upheld. .Two days after the this verdict was passed, the managing committee of the Contai Rahamania High Madrasah moved a writ petition challenging its correctness..The provisions in question empower a Commission constituted under the 2008 Act to nominate the teachers to be appointed to aided Madrasas in West Bengal, which were declared minority educational institutions in the State in 2007..On January 6, the Bench of Justices Arun Mishra and UU Lalit held that these provisions were constitutional in the case of Sk. Md. Rafique v. Managing Committee, Contai Rahamania High Madrasah and Others..No violation of minority institution rights: SC upholds WB Madrasah Service Commission’s power to nominate teachers to Madrasas.The judgment was based on the application of certain tests laid down in the case of TMA Pai Foundation v. State of Karnataka to discern the permissible limits of regulation when it comes to minority educational institutions..However, the petition moved by the managing committee, and filed by Advocate Sarla Chandra, contended that the Division Bench judgment is not only in conflict with the TMA Pai Foundation case, but also contradictory to the stance taken by a three-judge Bench of the Supreme Court last September in Chandana Das (Malakar) v.State of West Bengal & Ors. The petitioners go on to submit that Articles 12, 14, 21 and 30 (1) of the Constitution are also violated..Minorities’ Fundamental Right under Article 30 cannot be waived, Supreme Court reiterates [Read Judgment].Inter alia, the petitioners have argued that the Supreme Court cannot curtail rights already guaranteed to minority educational institutions under Article 30 (1) of the Constitution citing national interest..Moreover, in the Chandana Das case, a three-judge Bench eventually upheld Justice TS Thakur’s opinion concerning the rights of linguistic and religious minorities to administer their institutions, the petition points out. The three-judge Bench had decided on the issue after a difference of opinion arose in 2015 between Justice Thakur and Justice R Banumathi, necessitating the reference to a larger Bench..It was highlighted that , in the Chandana Das case, the Court had upheld Justice Thakur’s opinion that such rights cannot then be diluted by the State or its functionaries by insisting that the appointment of staff should be made only with the approval of the Director or by following the mechanism generally prescribed for institutions that do not enjoy the minority status..In this backdrop, arguing that the issues involved in the Chandana Das case and the case of Sk. Md. Rafique v.Managing Committee, Contai Rahamania High Madrasah and Others (which is in question) are same and identical, the petitioners had urged that the Supreme Court to refer the issue to a larger Bench..[Read Order]