R.F. Nariman, J. - (1.) These appeals have been referred to a Three Judge Bench in view of a disagreement between T.S. Thakur, J. and R. Banumathi, J., reported as Chandana Das (Malakar) v. State of West Bengal, 2015 12 SCC 140. The facts that are necessary in order to decide these appeals are set out by Thakur, J. in his judgment as follows: "2. The appellants, it appears, were appointed as teachers on temporary basis in what is known as Khalsa Girls High School, Paddapukur Road, Bhowanipore, Calcutta. Their appointment did not, however, meet the approval of the District Inspector of Schools, Calcutta, according to whom any such appointment could be made only on the recommendations of the School Service Commission established under the Rules for Management of Recognised Non-Government Institutions (Aided and Unaided), 1969 (hereinafter referred to as "the Rules"). 3. Aggrieved by the order passed by the District Inspector, the appellants approached the High Court of Calcutta in Writ Petitions Nos. 16256 and 16255 of 2003 which were allowed by a learned Single Judge of the High Court by his order dated 29-1-2004 holding that the Institution in which the appellants were appointed being a linguistic minority institution was entitled to select and appoint its teachers. The Single Bench accordingly directed the respondents in the writ petitions to approve the appointment of the appellants as whole-time teachers with effect from 28-7-1999 and release the arrears of salary and other service benefits in their favour with effect from the said date. 4. Aggrieved by the judgment and order of the learned Single Judge, the State of West Bengal, Director of School Education and District Inspector of Schools preferred CANs Nos. 3861 and 3863 of 2004 against the order passed by the Single Bench which appeals were allowed and disposed of by a Division Bench of that Court by a common order dated 23-9-2004 [State of W.B. v. Sukhbindar Kaur, 2005 3 CalHN 604 : 2004 SCCOnLine(Cal) 570]. The High Court held that since the Institution in which the appellants were appointed was a recognised aided Institution, the management of the Institution was bound to follow the mandate of Rule 28 of the Rules aforementioned which permitted appointments against a permanent post only if the candidate was recommended for any such appointment by the School Service Commission. 5. The Division Bench further held that the appellants having been appointed beyond the sanctioned staff strength at the relevant point of time and dehors the Rules could not claim any approval in their favour. The Court noted that the directions issued by the Director of School Education, Government of West Bengal did not permit any appointment without the prior permission of the Director. No such permission had been, in the case at hand, obtained from the Director. More importantly, the Division Bench held that since the Institution had not made any claim to its being a minority institution it was not open to the employee writ petitioners to claim any such status on its behalf. The Division Bench further took the view that once a minority community applies for a special constitution under sub-rule (3) of Rule 8 of the said Rules it represents to the State Government that it was not claiming the status of a minority institution. The Single Bench had, therefore, fallen in error in holding that the Institution where the appellants worked was a minority institution or that the appointment made by such an Institution would not be regulated by Rule 28 of the Rules mentioned above. The present appeals, as noticed above, call in question the correctness of the view taken by the Division Bench of the High Court. 6. The short question that falls for determination is whether Khalsa Girls High School, Poddapukur Road, Calcutta is a minority institution, if so, whether the Institution's right to select and appoint teachers is in any way affected by the provisions of the Rules of Management of Recognised Non-Government Institutions (Aided and Unaided), 1969 framed under the provisions of the West Bengal Board of Secondary Education Act, 1963? xxx xxx xxx 8. The Institution's case, on the other hand, is that the same was and continues to be a linguistic minority institution from its inception. The affidavit filed on behalf of the Institution traces the history behind the establishment of the Institution for the benefit of Punjabi-speaking Sikhs settled in Calcutta and other parts of West Bengal. The affidavit states that on 19-4-1976 a detailed memorandum was sent by the Institution to the Secretary, West Bengal Board of Secondary Education asking for approval of the special constitution for the school in terms of Rule 33 of the Rules mentioned above. That prayer was according to the Institution made only because the school was a minority educational institution. The affidavit also relies upon recognition of the minority status of the school by the West Bengal Minority Commission in terms of its Order dated 6-10-1989. The affidavit states that minority status of the Institution continues despite the grant sanctioned by the State which cannot carry conditions that would have the effect of defeating or diluting the right of minority to establish and administer its own Institutions. It was also contended that Rule 33 of the Rules reserves in favour of the State Government the power to frame further rules for certain institutions to which the provisions of Articles 26 and 30 of the Constitution apply. No such rules having been framed a minority can establish and run its institution in accordance with a special constitution that may be sanctioned in its favour. Rule 28 of the Rules relating to the appointment of teachers in minority institutions, therefore, does not apply in the present case."
(2.) The question posed by Thakur, J. in paragraph 6 of the judgment was answered stating:
(3.) Banumathi, J. delivered a separate judgment disagreeing with these conclusions. She agreed with the Division Bench judgment of the Calcutta High Court, which had upset the Single Bench judgment of that Court, and held as follows:;