Allahabad High Court
Mohammad Shoeb Khan And Anr. vs State Of U.P.Thru Secy And Ors. on 11 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 1866
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 81 AFR Case :- WRIT - A No. - 9034 of 2013 Petitioner :- Mohammad Shoeb Khan And Anr. Respondent :- State Of U.P.Thru Secy And Ors. Counsel for Petitioner :- G.K.Singh,Prabhat Kumar Singh,V.K.Singh Counsel for Respondent :- C.S.C.,Gautam Baghel With Case :- WRIT - A No. - 31865 of 2013 Petitioner :- Mohd. Saleem Khan Respondent :- State Of U.P.And 3 Ors. Counsel for Petitioner :- Prabhat Kumar Singh,V.K.Singh Counsel for Respondent :- C.S.C.,Siddhartha Khare With Case :- WRIT - A No. - 31868 of 2013 Petitioner :- Mohd. Shoeb Khan Respondent :- State Of U.P.And 3 Ors. Counsel for Petitioner :- Prabhat Kumar Singh,V.K.Singh Counsel for Respondent :- C.S.C.,Gautam Baghel Hon'ble Yashwant Varma, J.
Heard Sri Vijay Kumar Singh, learned Senior Counsel assisted by Sri Prabhat Kumar Singh, learned counsel for the petitioner, Sri Ankur Tandon, the learned Standing Counsel and Sri Ambuj Mishra, learned counsel holding brief of Sri Gautam Baghel, learned counsel for the respondents.
These three petitions with the consent of parties are taken up for hearing together and shall stand disposed of by this common judgment.
Writ A No.9034 assails the validity of an order dated 17 November 2011 passed by the Joint Director of Education and consequential order of 14 December 2012 passed by the District Inspector of Schools. The order of Joint Director dated 17 November 2011 itself has come to be made pursuant to the directions issued by the Court on Writ A No.20463 of 2011. The order directed the District Inspector of Schools to undertake a detailed enquiry in respect of the alleged irregularities in connection of the selection of two Assistant Teachers in the respondent minority institution. The two Assistant Teachers are the petitioners in the writ petitions which are also being disposed of by this common judgement.
The petitioners claim to have been selected and appointed in the Institution as Assistant Teachers in the LT Grade on 10 April 2003. On a petition filed at their behest, directions were issued to the District Inspector of Schools to pass appropriate orders in relation to the approval which was sought. The District Inspector of Schools by its order of 22 February 2005 accorded approval to the appointment of the petitioners. While matters could have rested there, it appears from the record that a complaint was made in 2010 to the District Inspector of Schools by certain members claiming affiliation to a new Committee of Management which had come to hold office. One of the complainants approached the Court by filing Writ Petition No.20463 of 2011 which came to be disposed of with a direction to the Joint Director of Education to enquire into the complaint and take appropriate decision. It is pursuant to those directions that the impugned order of 17 November 2011 came to be passed. Pursuant to the directions made by the Joint Director in that order, an enquiry is stated to have been initiated whereafter the Committee of Management passed the order terminating the services of petitioners. The orders of termination are assailed by the individual petitioners in the connected writ petitions.
As is evident from the findings which are recorded in the order of the Joint Director of Education of 17 November 2011, it has been found that there were gross illegalities and irregularities committed in the entire selection process. The enquiry which was undertaken by the educational authorities established that most of the members of the Selection Committee had subsequently stated that their signatures had been forged on the papers relating to selection which were forwarded by the Management. The respondents have also found serious discrepancies and lack of particulars in the advertisements which were issued. They have noted that in none of the advertisements were the subject or disciplines in respect of which appointments were sought to be made find mention. The Joint Director in its order has also noted that Mohd. Saleem Khan [petitioner in Writ A No.31865 of 2013] came to be appointed on the post of Assistant Teacher LT Grade even though he possessed the qualifications of B.Sc., B.Ed. whereas the advertised qualification was of B.A., B.Ed. Insofar as Mohd. Shoeb Khan [petitioner in Writ A No.31868 of 2013] is concerned, it has come to be noted in the impugned order that the said candidate admittedly held the qualifications of B.A. and testimonials establishing having passed the Drawing Grade Examination. The order essentially holds that the said petitioners did not hold the B.Ed. degree at all. It is these gross illegalities which according to the respondents constrained them to command the Management to terminate the services of the two Assistant Teachers.
Sri V.K. Singh learned Senior Counsel has firstly submitted that the Joint Director of Education clearly had no jurisdiction or authority to pass directions to the District Inspector of Schools to undertake any enquiry. Referring to the provisions made in Section 16FF of the Intermediate Education Act, 19211, it was contended that the power to interfere with the choice made by the Management stands vested only in the Regional Deputy Director of Education or the Inspector as the case may be. It was consequently submitted that the Joint Director had no power to recommend or command the Management to terminate the services of the petitioners. It was further submitted that the respondents could not have interfered with the selection made only if they found that the persons selected did not possess the minimum qualifications as prescribed or were otherwise ineligible. This submission is addressed in light of the provisions made in Section 16FF(4). Turning then to the issue of the record as maintained by the Selection Committee, it was submitted that there was no legal requirement obliging the Selection Committee to award quality point marks under different heads or fields. It was also submitted that it was not open for the respondents to take cognizance of the complaints many years after approval had been accorded to the appointment of the petitioners by the District Inspector of Schools.
Sri Tandon learned Standing Counsel has on the other hand submitted that bearing in mind the gross illegalities which were noticed in the course of enquiry and from which the selection proceedings undisputedly suffered, the respondents were fully justified in interfering with the entire process and command the respondent Management to terminate those illegal appointments. It was submitted that while a minority institution may be empowered to select appropriate and eligible persons in light of the provisions made under Section 16FF, the State cannot be said to be totally deprived or denuded of authority especially when the burden of salaries of such teachers would ultimately fall on public exchequer. Sri Tandon learned Standing Counsel submitted that despite the nature of disclosures which are carried in the order of Joint Director, the petitioners have failed to establish that the selection process was in fact carried forth in accordance with law or for that matter was imbued with at least the minimal attributes of fairness as the Constitution otherwise commands.
Sri Mishra learned counsel appearing for the Management submits that the entire selection process was mired and tainted by fundamental illegalities and clearly did not commend acceptance by the respondents. He has while referring to the advertisements which were issued submitted that while the advertisement in Hindustan Times made no reference to the number of posts for which the recruitment process was being undertaken, the second advertisement published in Hindustan referred to two posts of trained L.T. Grade Teachers being the subject matter of the recruitment. He highlighted the fact that neither of the two advertisements set forth the disciplines for which applications were being invited for the purposes of selection. It was further contended that the advertisement mentions that the dates of interview would be intimated to the applicants by registered post and yet no material have been brought forth to establish that even this stipulation was adhered to or that it was pursuant to the intimation so received that the petitioners here ultimately participated in the alleged interview. Insofar as the validity of the proceedings drawn by the Selection Committee is concerned, Sri Mishra learned counsel refers to the judgment rendered by a learned Judge in Ajay Singh And Another v. State of U.P. And Others2 where the position has been taken that the provisions made in Appendix -C contained in Chapter II of the Regulations framed under the 1921 Act would ipso facto apply to minority institutions also and in view thereof it was incumbent upon the Selection Committee to award quality point marks upon the evaluation of individual candidates. In Ajay Singh the legal position was enunciated thus:-
"In view of the aforesaid provisions, Appendix 'C' attached to Chapter-II becomes applicable in respect of selections made on the post of Lecturers in minority institutions automatically. Appendix 'C' regulates the manner in which quality point marks and interview marks ought to be provided as well as bifurcation of the same. Proceedings of selection are necessary to be submitted in Appendix 'C', referred to above. It is only on such proceedings submitted in Appendix 'C', that the educational authorities can act upon and take decision for grant of approval to selected candidate. Appendix 'C' reads as follows:"
From the affidavit filed by the Regional Joint Director of Education, noticed herein above, it is apparent that the proceedings of selection, as required, have not been intimated as required in Appendix 'C' nor there is any other record available to educational authorities on the basis whereof Appendix 'C' could be prepared for taking decision that the selection on the post in question is in accordance with law. Even otherwise none of the respondents being able to demonstrate as to what was the maximum marks fixed for interview, the entire documents submitted for selection are rendered mere paper transaction. This Court is also not able to ascertain what was the maximum marks fixed for interview.
In view of the aforesaid, the entire papers pertaining to the selection of Sri Desh Deepak Srivastava do not inspire confidence and therefore the selection of Sri Desh Deepak Srivastava cannot be said to have taken place in accordance with the provisions applicable."
Sri Mishra then placed reliance upon a judgment rendered by a learned Judge in Sanjay Kumar Singh v. District Inspector of Schools, Jaunpur and Others3 to submit that consequent to the promulgation of the Government Order dated 19 December 2000 and constitution of the Regional Level Committee in terms thereof, the District Inspector of Schools had clearly no jurisdiction to accord approval since that power stood taken away and conferred on the Committee. According to Sri Mishra where the entire selection process was tainted by such gross illegalities, the petitioners could not have been permitted to draw salaries from State exchequer and that the Management was fully justified in terminating their services. In Sanjay Singh the position as would prevail after the issuance of the Government Order of 19 December 2000 was explained as under:-
"In the present case, it has been sought to be contended that once approval had been accorded by the District Inspector of Schools in exercise of authority vested under Section 16FF of U.P. Act No. 2 of 1921, then salary has to be ensured ipso facto automatically. Such question is being looked into and answered accordingly.
Section 16FF and the provisions as contained in Chapter II Regulation 17 quoted above would go to show that approval is required before making appointment. After approval has been accorded, the same is followed by exercise to be undertaken by the committee of management of the institution in terms of Chapter II Regulation 18, wherein the committee of management has been obliged under the resolution to issue an order of appointment by registered post to the candidate in the form given in Appendix- 'B', requiring the candidate to join the duty within ten days of receipt of such order, failing which appointment of candidate would be liable to cancellation. It is only when appointment letter is issued after approval has been accorded in terms of Chapter II Regulation 18 of the Regulations framed under .P. Act No. 2 of 1921, and incumbent accepts the appointment and joins then situation arises for ensuring payment of salary. In cases where institution is not at all in grant-in-aid list of State Government, there is no issue as salary has to be ensured by Management from its own resources, and State has no role to play in the same. In case institution is on the grant-in-aid list of the State Government and the provisions of U.P. Act No. 24 of 1971 are applicable, and papers are received for ensuring payment of salary, then at the said point of time, salary can be refused to an incumbent in case it is found that the appointment has been made in contravention of the statutory provisions or against any other post other than the sanctioned post. Chapter II Regulation 19, thus, gives the District Inspector of Schools one more opportunity vis-a-vis the provisions of U.P. Act No.24 of 1971 to re-examine the matter, as U.P. Act No. 24 of 1971 provides for ensuring salary for the post against which maintenance grant is paid by the State Government, and the District Inspector of Schools has also to see and ensure that the salary is paid accordingly. "Shall decline to pay salary and other allowances" though couched in negative manner, casts mandatory duty on the District Inspector of Schools, while exercising authority under the provisions of U.P. Act No. 24 of 1971, to see and ensure that no incumbent, whose appointment is in contravention of the provisions of Chapter II of U.P. Act No. 24 of 1971 or an incumbent who has not been appointed against sanctioned post, gets salary. There are two stages of examination; (i) Pre-appointment stage, in accordance with Section 16FF of U.P. Act No. 24 of 1971 read with Chapter II Regulation 17; (ii) Post-appointment stage in terms of Chapter II Regulation 18 of U.P. Act No. 24 of 1971, after appointment letter is issued. Qua pre-appointment examination, District Inspector of Schools under Section 16FF of U.P. Act No.2 of 1921 has no authority to withhold the approval of selection where the incumbent possesses the minimum qualifications prescribed and is otherwise eligible whereas once approval has been accorded in terms of Section 16FF of U.P. Act No. 2 of 1921, and incumbent has been issued appointment letter, and has joined and claim of salary is covered under U.P. Act No. 24 of 1971, then before release of salary, District Inspector of Schools has to see that the incumbent has not been appointed in contravention of Chapter II of U.P. Act No. 2of 1921 and has not been appointed against non sanctioned post. District Inspector of Schools has to satisfy himself on these two counts while undertaking exercise under the provisions of U.P. Act No. 24 of 1971 read with Chapter II Regulation 19. Both the provisions operate in different field and deals with different stages; i. e. (i) Pre-appointment and (ii) Post appointment state, as such to say that once appointment has been approved under Section 16FF of U.P. Act No. 2 of 1921, grant of salary is automatic, cannot be accepted and District Inspector of Schools has to undertake requisite exercise before release of salary."
......
"The validity of Government Order dated 19.12.2000 had been subject matter of challenge in Special Appeal No.1394 of 2004, Committee of Management vs. Regional Joint Director of Education and another as well as in Special Appeal No.1078 of 2005, Munna Lal Singh and another vs. State of U.P. and others. This Court in both the cases has not at all found transgression or overstepping of jurisdiction in constitution of Regional Committee, rather constitution of Regional Committee under the aforesaid Government Order has been seen in the context of extending assistance in favour of lawful incumbent. In respect of payment of salary also, Regional Level Committee assists the District Inspector of Schools. As already noted and discussed above, at no place and in no way Government Order dated 19.12.2000 proceeds to encroach upon or is in conflict with the provisions of U.P. Act No.2 of 1921 or U.P. Act No. 24 of 1971, inclusive of Constitution of India. Hon'ble Apex Court in the case of Kolawana Gram Vikas Kendra vs. State of Gujrat and others, J.T. 2009 (13) SC 581, vis-a-vis minority institution has taken the view that such exercise is valid exercise and in no way circular issued in the said direction amounts to unconstitutional interference in the internal working of minority institution, and has approved the action of the State Government vis-a-vis issuance of such Government Order in respect of ensuring payment of salary in following terms:
"6. In our considered view this to be the interference in the selection process. It would be perfectly all right for a minority institution to select the candidates without any interference from the Government. However, the requirement of this prior approval is necessitated because it is for the Government to see as to whether there was actually posts available in the said institution as per the strength of students and secondly; whether the candidates, who were sought to be appointed, were having the requisite qualifications in terms of the rules and regulations of the Education Department. That is precisely the stand taken by the State of Gujrat before us in its counter affidavit. Para 3 of the said affidavit reads as under:
"Minority institutions are free to select their teaching and non-teaching staff. No Government Officer or the representative of the Board was appointed in the selection committee of the minority institution. There is no interference by the government in the administration of schools. However, N.O.C. Is required to be obtained to verify whether there is a vacancy of a teach of a particular subject as per the workload fixed by the Gujrat Secondary and Higher Secondary Education Board specially when government is providing grant-in-aid and that he possesses minimum required qualification for the post he is appointed"
7. From the reading of aforementioned para 3, it is clear that all that the Government wants to examine is as to whether the proposed appointments were within the framework of the rules considering the workload and the availability of the post in that institution and, secondly; whether the selected candidate had the necessary qualification for the subjects in which the said teachers were appointed. The same applies to the non-teaching staff also.
8. In view of this clear stand taken by the State Government, we cannot pursue ourselve to hold that the aforementioned circular amounts to any unconstitutional interference in the internal working of the minority institution. In that view, we would choose to dismiss these appeals. However, Mr. Ahmadi raised another point saying that if the prior approval or the no objection certificate, as the case may be, is not awarded within seven days without any reason, then it would be hazardous for the minority institution to run itself. We do expect the competent authority to issue the no objection certificate within the time provided in the said circular which is of seven days. Of course, if there are any objections, the authority will be justified to take some more time within the reasonable limits."
Consequently, for the reasons discussed above, and in the facts of the case, as till date in consonance with the Government Order dated 19.12.2000, the Regional Committee has not at all vetted the claim of petitioner in respect of release of salary under U.P. Act No. 24 of 1971; consequently, no orders have been passed by the District Inspector of Schools, as such Regional Committee constituted under Government Order dated 19.12.2000 is directed to examine the claim of petitioner in accordance with the parameters as provided for under Chapter II Regulation 19 of U.P. Act No. 2 of 1921 and take appropriate decision, within two months from the date of receipt of a certified copy of this judgment, and along with necessary recommendations, papers be transmitted to the District Inspector of Schools for further follow-up action."
Having noticed the rival submissions the stage is now set to deal with the issues that arise. At the very outset it may be noted that the selection and appointment of teachers in a minority institution and the right of the respondents to review or scrutinise an appointment made is governed by the provisions made in Section 16FF. The provision firstly lays down the composition of the Selection Committee. In case selection is for the Head of the institution, it must comprise of an expert selected out of a panel prepared by the Director. In case of appointment of a Teacher, the Selection Committee must also include the Head of the Institution as a member. Section 16FF (2) then provides that the Selection Committee shall follow such procedure "as may be prescribed". Regulation 17 falling in Chapter II which admittedly governs selections undertaken by a minority institution, attracts the procedure prescribed by Regulation 10 clauses (e) and (f) to such selections. It is in that backdrop that Ajay Singh [and in the considered view of this Court correctly] holds that it is incumbent upon the Selection Committee to draw a chart evidencing a comparitive analysis of the respective merit of candidates and the award of quality point marks. Undisputedly in the present case not only was no such exercise undertaken, the members who were shown as constituting the Selection Committee have not only denied having participated in any such exercise, they have gone to the extent of asserting that their signatures as stated to appear on the record of selection have been forged. This aspect amounts to a flagrant violation of the procedure prescribed by statute.
The Court then notices that the advertisements which were issued failed to disclose the disciplines/subjects in respect of which applications were being invited. One of the advertisements did not even mention the number of posts for which the selection was sought to be undertaken. It would be preposterous to countenance or uphold advertisements like the ones which form subject matter of the instant writ petition as being constitutionally valid. The Court is constrained to enter these observations bearing in mind that the selectees were entering public employment and whose salaries were to be borne out of public exchequer.
Insofar as Mohd. Shoeb Khan [the petitioner in Writ A No.31868 of 2013] is concerned, it is not disputed that he did not possess the qualifications as prescribed. His appointment was thus clearly untenable and the respondents were clearly empowered not only to direct but also to ensure that the Management brought that illegality to an end. Regard must be had to the fact that Section 16FF does empower the State respondents to enquire whether the candidate selected holds the prescribed qualifications and "is otherwise eligible". Before this Court it was not disputed that the writ petitioner did not possess the prescribed qualification. In view thereof the respondents must be held to have acted within their jurisdiction in commanding the Management to annul that appointment. That writ petition consequently merits dismissal on this score alone.
That then takes the Court to consider the principal submission which is addressed, namely, the extent of the jurisdiction which the respondents could have validly exercised in light of the provisions of Section 16FF. But before proceeding to do so, it would be apposite to articulate two fundamental precepts which necessarily must be borne in mind while evaluating the correctness of the submission advanced.
Article 14 is undisputedly the soul of the Constitution and embodies the quintessence of constitutionalism as evolved by our Courts. The doctrine of equality and fairness, which forms its fundamental core, must inform all actions in a constitutional democracy. This Article also guides and fortifies the guarantee immortalised in Article 16 of the Constitution. The pledge of equality as incorporated in these two Articles must guide all actions taken in connection with public employment. An essential facet of employment under the State is a fair and impartial recruitment process. Explaining this vital precept this Court in Prashant Kumar Jaiswal And Others Vs. State of U.P. And Others4 observed:-
65. The Court additionally bears in mind that the selections in question were for recruitment to a public service, a service in and under a corporation of the State. Certificates and diplomas issued by organisations which this Court chooses to describe as "sweatshop centers" which have no recognition or approval cannot be accepted as rendering a holder thereof eligible for employment in public service. An incumbent aspiring to enter public service or a corporation of the State must possess qualifications which are recognised or capable of being recognised in law. This because of the very nature of the employment being sought. After all, the incumbent and others like him in public service are the sinews of the organ which we call the State. On them is placed the burden and obligation to ensure the well being of the citizen, to secure the welfare of the people. A member of such a service must necessarily be possessed of certain core qualifications of a particular standard. Dealing with the issue of public service and employment in the context of appointments having been obtained on the basis of false caste certificates, the Supreme Court in Chairman and Managing Director FCI & others Vs. Jagdish Balaram Bahira 2017 SCC Online 715 and others made the following significant and eloquent observations which would ring true even in the present case and guide the Court in dealing with such issues. The Supreme Court noted:
"77. Service under the Union and the States, or for that matter under the instrumentalities of the State subserves a public purpose. These services are instruments of governance. Where the State embarks upon public employment, it is under the mandate of Articles 14 and 16 to follow the principle of equal opportunity. Affirmative action in our Constitution is part of the quest for substantive equality. Available resources and the opportunities provided in the form of public employment are in contemporary times short of demands and needs. Hence the procedure for selection, and the prescription of eligibility criteria has a significant public element in enabling the State to make a choice amongst competing claims. The selection of ineligible persons is a manifestation of a systemic failure and has a deleterious effect on good governance. Firstly, selection of a person who is not eligible allows someone who is ineligible to gain access to scarce public resources. Secondly, the rights of eligible persons are violated since a person who is not eligible for the post is selected. Thirdly, an illegality is perpetrated by bestowing benefits upon an imposter undeservingly. These effects upon good governance find a similar echo when a person who does not belong to a reserved category passes of as a member of that category and obtains admission to an educational institution. Those for whom the Constitution has made special provisions are as a result ousted when an imposter who does not belong to a reserved category is selected. The fraud on the constitution precisely lies in this. Such a consequence must be avoided and stringent steps be taken by the Court to ensure that unjust claims of imposters are not protected in the exercise of the jurisdiction under Article 142. The nation cannot live on a lie. Courts play a vital institutional role in preserving the rule of law. The judicial process should not be allowed to be utilised to protect the unscrupulous and to preserve the benefits which have accrued to an imposter on the specious plea of equity. Once the legislature has stepped in, by enacting Maharashtra Act XXIII of 2001, the power under Article 142 should not be exercised to defeat legislative prescription. The Constitution Bench in Milind spoke on 28 November 2000. The state law has been enforced from 18 October 2001. Judicial directions must be consistent with law. Several decisions of two judge benches noticed earlier, failed to take note of Maharashtra Act XXIII of 2001. The directions which were issued under Article 142 were on the erroneous inarticulate premise that the area was unregulated by statute. Shalini noted the statute but misconstrued it.
91. Medical education is what middle-class parents across the length and breadth of the county aspire for their children (whether this will continue to be so in future is a moot question). There is intense competition for a limited number of under-graduate, post-graduate and super-speciality seats. This can furnish no justification for recourse to unfair means including adopting a false claim to belong to the reserved category. The fault - lines of our system, be it in education, health or law, are that its lethargy and indolence furnish incentives for the few who choose to break the rules to gain an unfair advantage. In such a situation, the court as a vital institution of democratic governance must be firm in sending out a principled message that there is no incentive other than for behaviour compliant with rules and deviance will meet severe reprimands of the law."
(emphasis supplied)
66. The views expressed by the Supreme Court in Jagdish Balaram highlighting the concepts of "substantive equality", the recognition of "limited opportunities" all bid us to hold that in matters of public employment the processes undertaken must be strictly tested on the principles enshrined in Articles 14 and 16 of the Constitution. The Supreme Court has aptly described public services as "instruments of governance". This clearly underpins the conclusion arrived at by this Court that there can be no entry in public services on the strength of unrecognised qualifications. This Court therefore finds itself unable to accept the submission that an unrecognised qualification or for that matter a certificate issued by an organisation which is not recognised or acknowledged by law can be accepted in recruitment to a public service or in an organisation which is State as understood in terms of Article 12 of the Constitution.
The aforesaid decision has since been affirmed by the Supreme Court in MUKUL KUMAR TYAGI VS. STATE OF UTTAR PRADESH5.
It is equally important to remember that Article 30 standing in Part III of the Constitution like all other rights is not absolute or untramelled. The Constitution while recognising and preserving the right of minorities to establish and administer educational institutions does not envisage it to be a carte blanche to maladminister or to ignore basic concepts of fairness which must infuse any recruitment exercise. While undertaking a process of selection, the administrators of a minority institution cannot claim immunity from the rigours of Articles 14 and 16 of the Constitution. It would be appropriate to recollect the following caveat enunciated in TMA Pai Foundation Vs. State of Karnataka6 by the Constitution Bench:-
"135. We agree with the contention of the learned Solicitor-General that the Constitution in Part III does not contain or give any absolute right. All rights conferred in Part III of the Constitution are subject to at least other provisions of the said Part. It is difficult to comprehend that the framers of the Constitution would have given such an absolute right to the religious or linguistic minorities, which would enable them to establish and administer educational institutions in a manner so as to be in conflict with the other Parts of the Constitution. We find it difficult to accept that in the establishment and administration of educational institutions by the religious and linguistic minorities, no law of the land, even the Constitution, is to apply to them.
136. Decisions of this Court have held that the right to administer does not include the right to maladminister. It has also been held that the right to administer is not absolute, but must be subject to reasonable regulations for the benefit of the institutions as the vehicle of education, consistent with national interest. General laws of the land applicable to all persons have been held to be applicable to the minority institutions also -- for example, laws relating to taxation, sanitation, social welfare, economic regulation, public order and morality.
137. It follows from the aforesaid decisions that even though the words of Article 30(1) are unqualified, this Court has held that at least certain other laws of the land pertaining to health, morality and standards of education apply. The right under Article 30(1) has, therefore, not been held to be absolute or above other provisions of the law, and we reiterate the same. By the same analogy, there is no reason why regulations or conditions concerning, generally, the welfare of students and teachers should not be made applicable in order to provide a proper academic atmosphere, as such provisions do not in any way interfere with the right of administration or management under Article 30(1).
Reiterating the legal position the Supreme Court in a recent decision in Sk. Md. Rafique Vs. Managing Committee Contai Rahamania High Madrasah and others7 held:-
106. The decision in TMA Pai Foundation8, rendered by Eleven Judges of this Court, thus put the matter beyond any doubt and clarified that the right under Article 30(1) is not absolute or above the law and that conditions concerning the welfare of the students and teachers must apply in order to provide proper academic atmosphere, so long as the conditions did not interfere with the right of the administration or management. What was accepted as correct approach was the test laid down by Khanna, J. in Ahmedabad St. Xavier's College5 case that a balance be kept between two objectives - one to ensure the standard of excellence of the institution and the other preserving the right of the minorities to establish and administer their educational institutions. The essence of Article 30(1) was also stated - "to ensure equal treatment between the majority and the minority institutions" and that rules and regulations would apply equally to the majority institutions as well as to the minority institutions.
The imperatives of a fair and just process of recruitment in order to select the most deserving and qualified candidate is a facet which has an indelible bond to standards of education in an educational institution. The rights that are claimed by a minority institution, coonsequently must be read as being subject to the caveat noticed above, namely, the obligation to act in accordance with the mandate of Articles 14 and 16. A process of recruitment which does not answer even the rudimentary requirements of a fair and just process can neither commend sanction in law nor can it be preserved by the protective umbrella of Article 30 of the Constitution. Regard must also be had to the fact that the Institution was in receipt of State aid. Once that institution stands conferred that benefit, the respondents could legitimately claim the right to regulate the selection process within the narrow confine culled out above. The provisions of Section 16FF cannot be construed as conferring an immunity to the minority institution to claim a right to select and appoint by adopting a process which is neither fair nor transparent. The right to select a teacher must be read as being hedged and subject to the rigours of other parts of the Constitution.
The power of the State to regulate and overseee within this narrow confine has an ineradicable link to maintenance of standards of education. The power if so exercised can neither be viewed as an infringment nor can it be said to impinge upon the rights guaranteed by Article 30. The State cannot be expected to remain a mute spectator while a minority institution proceeds to adopt a selection process which does not answer the requirement of Articles 14 and 16. Article 30 is neither an impregnable barrier nor can it be construed as a restraint upon the power of the State to regulate the affairs of a minority institution to the extent that the said power is exercised and invoked in aid of maintenance of standards. A minority institution cannot be permitted in law to act with impunity and then rise up to claim an unbridled constitutional right to administer. That right must be balanced against the constitutional obligation placed upon all constituents to act in accordance with law and the Constitution.
The Court also bears in mind that in the present case, it is the Management which has proceeded to annul the appointment of the petitioners. It does not assert or contend that its rights to administer and manage have been interfered with. Bearing in mind the serious irregularities from which the selection process stood tainted, the Court is of the considered view that the petitioners are not entitled to any relief and the petitions must fail.
The writ petitions are consequently dismissed.
Order Date :- 11.2.2020 Vivek Kr.
(Yashwant Varma, J.)