Minority Right Under Article 30 Does Not Include Right To Burden Exchequer With Non-Competitive Appointments: Supreme Court

"Aid without accountability is constitutionally unsustainable. Minority right under clause (1) of Article 30 of the Constitution does not and cannot include the right to burden the exchequer with appointments made through a non-competitive, opaque process." Supreme Court, in a significant judgment dated July 13, 2026, held that appointments to posts in aided minority educational institutions that are funded by the public exchequer must follow a transparent and competitive selection process.

A bench of Justice Dipankar Datta and Justice Augustine George Masih observed that the right of minorities to administer educational institutions under Article 30 does not permit them to sustain private patronage through "closed-door" appointments at the cost of the state. The Court dismissed a batch of 49 petitions filed by over 350 individuals claiming to be teachers and non-teaching staff of various madrasahs in West Bengal.

The case reached the Apex Court following a protracted legal battle over the West Bengal Madrasah Service Commission Act, 2008. While the High Court had initially declared the Act ultra vires, the Supreme Court later upheld its validity in the Sk. Mohd. Rafique case. The present petitioners claimed they were validly appointed by Madrasah Managing Committees during the interregnum period between the High Court's strike-down and the Supreme Court's stay. They alleged that they were being deprived of legitimate service benefits despite being appointed under Government notifications that held the field at the time.

The primary question before the Court was whether the appointments made by the Managing Committees in the interregnum period were legally valid and whether such appointees had a right to salary and regularisation. The Court was also called upon to determine if the 10% "Management Quota" for appointments in aided minority institutions, which bypassed open competition, was constitutionally permissible under Articles 14 and 16 of the Constitution of India.

Court Distinguishes Between Stay And Quashing Of Orders

The Bench clarified the legal effect of its interim order dated March 14, 2016, which stayed the High Court’s judgment striking down the MSC Act. Relying on the precedent in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association, the Court explained that a stay does not wipe an order out of existence but merely renders it inoperative. Consequently, once the stay was granted, a legal vacuum was created where neither the old notifications nor the struck-down Act could operate without express court guidance.

Appointments After Stay Order Deemed Ex-Facie Illegal

The Court observed that any appointment made after the stay order of March 14, 2016, without obtaining express permission from the Supreme Court, is ex-facie illegal. The judges noted that the Madrasahs ought to have approached the Court for guidance on the recruitment process instead of proceeding on their own. The Bench found that several appointments were made with "undue haste" or involved the "ante-dating of documents" to evade the consequences of the pending litigation, which the Court termed as a "blot on the system."

"The stay of operation of an order does not mean that the said order has been wiped out from existence. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order."

Ad-Hoc Committees Restricted To Day-To-Day Administration

While examining the claim of petitioner Raj Kumar Bag, the Court held that an Ad-hoc Managing Committee constituted by a court order for "day-to-day administration" lacks the authority to make permanent appointments. The Bench defined day-to-day administration as routine academic and financial functions necessary for the smooth running of the school, such as conducting classes and paying existing staff. It specifically excluded major policy matters and recruitment to permanent vacancies, which involve substantial financial implications for the state.

Absence Of Sanctioned Posts Fatal To Appointment Claims

In the case of Md. Saidul Islam, the Court found that the petitioner was appointed to a non-existent post. The Bench observed that three additional posts sanctioned in 2008 had lapsed as no appointments were made or retention proposals forwarded within the stipulated three-year period. The Court held that no appointment could have been validly offered without a sanctioned post being in existence at the time of the recruitment process.

Publicity Requirements For Public Employment Must Be Strictly Followed

The Court emphasised that for any recruitment to be valid under Article 16, there must be wide publicity through advertisements in at least two State-level dailies, including one in English. In multiple cases, such as those of Sahana Khatun and Md. Abdur Rahman Gazi, the Court found no evidence of such advertisements. The Bench noted that "localised advertising" at block offices or railway stations is insufficient for appointments to public posts funded by the government.

"A regime where public money is used to sustain private patronage in appointments cannot be countenanced. Appointment without facing any competition is the anti-thesis of Articles 14 and 16."

Management Quota Under Clause 6 Declared Unconstitutional

In a major finding, the Court declared Clause 6 of Notification-I, which allowed a 10% management quota for minority members without open advertisement, as wholly unconstitutional. The Bench observed that while this clause was not specifically challenged, it sanctioned a "closed-door appointment process" for posts funded by the public exchequer. The Court held that a complete exemption from competition is indefensible once Government aid is received, as aid without accountability is constitutionally unsustainable.

Fraud And Ante-Dating Of Documents Vitiate Recruitment

While dealing with the case of Kazi Md. Jahirul Hassan, the Court noted with suspicion that twelve teachers allegedly joined on the same day, and the approval request was served to the authorities months later, only after the MSC Act was upheld. The Bench inferred that documents were ante-dated to lend a "colour of a prior recruitment process." The Court held that the entire exercise was "vitiated by manifest fraud" and struck at the foundation of a fair recruitment process.

Right Under Article 30 Does Not Permit Opaque Selection

The Court reiterated that the right of minority institutions under Article 30(1) is not absolute and does not include the right to maladminister or appoint unqualified staff through opaque processes. Referring to T.M.A. Pai Foundation and Sk. Mohd. Rafique, the Bench held that the state has the power to regulate the recruitment of teachers to ensure "excellence in education." The Court found that the petitioners' claims were "spurious" and "devoid of any merit," warranting no interference under Article 32.

Final Directions and Dismissal of Petitions

Concluding the judgment, the Court vacated all interim orders that had previously restrained the State from dislodging these petitioners or directed the payment of their salaries. The Bench dismissed the entire batch of writ petitions, allowing the State to fill the vacant sanctioned posts as per the recommendations of the Madrasah Service Commission. Although the Court found the petitions misconceived, it refrained from imposing costs, citing a "lenient view" as it was already denying the claims for arrears of salary.

Date of Decision: July 13, 2026