Allahabad High Court
Committee Of Management, M.A.H. Inter ... vs District Inspector Of Schools, ... on 30 April, 2002
Equivalent citations: 2002(3)AWC2221, (2002)2UPLBEC1742
Author: Janardan Sahai
Bench: Janardan Sahai
JUDGMENT Janardan Sahai, J.
1. India is a unity in diversity ; not only in her sharp topographical features, not only in her varied climates, its flora and fauna, but more so in its peoples of diverse religions, faiths and culture. Peoples of different races of different colour speaking different languages belonging to different levels of socio-economic development inhabit in different regions of this vast country, its hills, its coasts. The unit of socio-economic life the Indian village is home to a motley mixture of castes and sub-castes of Hindu society and people of other communities too. Hindus, Muslims, Christian, Jains and Parsis have lived a life of peaceful co-existence through the ages. A delicate balance between the majority and the minority community maintains. The British, it is said, pursued the policy of divide and rule. Communal clashes marked the closing years of British rule causing a sharp cleavage in the society.
2. The issues of striking a balance between minority and majority rights is, therefore, a fundamental issue and if improperly handled may threaten the very existence of our democracy. While there may be difference of opinion as to the cause of communal clashes and whether they are fanned by people of vested interest to divide communities to vote on communal lines--a question which is not within the province of this Court to express any opinion upon, as it raises a sensitive and controversial issue of past history and present politics, but when the onslaught on minority rights is caused by legislative action of the State Legislature or by subordinate legislation as the facts of this case would reveal, the infringement is clearly perceptible and the Court is in a position to adjudicate.
3. What has brought two minority institutions, the Picket Inter College run by a Christian minority and the M.A.H. Inter College run by a Muslim minority into this unwanted litigation is the subtle attack on minority rights by the District Inspector of Schools inviting them to appoint his nominee as a teacher in Picket Inter College and a Class IV employee in the M.A.H. Inter College. The invitation under the law is not optional for the management to accept but is backed by the compulsive force of Regulation 107 of Chapter III of the Regulations framed under the U. P. Intermediate Education Act. This Regulation is the last of the series of regulations 103 to 107 providing for appointment of a family member of an employee of a recognised, aided institution dying-in-harness. These Regulations were introduced by a notification dated 30.7.1992 of the State Government which has the power to make Regulations under Section 9(4) of the Intermediate Education Act. They were amended by Government notification dated 2.2.1995.
4. The major change brought about by the amendments in 1995 was that the post of L.T. grade teacher also was thrown open for compassionate appointment and a proviso was inserted to Regulation 103 exempting institutions established or administered by a minority community from its application. Although the proviso was added only to Regulation 103 which provides for appointment to a family member of an employee dying-in-harness but as the Scheme of Regulations 103 to 107 is an integrated one, the proviso in effect carves out an exception to all these Regulations. The effect of the proviso was that minority institutions continued to enjoy free hand subject to the regulatory provisions of Section 16FF of the Intermediate Education Act in the matter of appointments. The proviso to Regulation 103 was repealed and a new Regulation 103 without the proviso was substituted by notification dated 9.8.2001, which is the notification under challenge in these petitions. The substituting Regulation 103 merely re-enacts the substituted Regulation without the proviso. In effect, the proviso stands repealed.
5. The repeal of the proviso, as we may call, it brings about serious repercussion upon the rights of aided recognised minority institutions governed by the Intermediate Education Act in making appointment of L.T. grade teachers or Class IV and Class III employees. Under the scheme of the Regulations 103 to 107, on the occurrence of a vacancy by death in the ministerial cadre or in the teaching staff of the institution, intimation by the management has to be made to the District Inspector of Schools. A selection committee consisting of three members the District Inspector of Schools, the Accounts Officer of his office and the Basic Shiksha Adhikari assesses the suitability of the candidate, a family member of the employee dying-in-harness. The District Inspector of Schools is required to adjust the selected teacher, clerk or Class IV candidate in the same institution where the deceased employee was working. If this arrangement be not possible for want of vacancy, then the District Inspector of Schools is required to adjust him in any other school of the district. It is to be noted that while Regulations 103 to 107 contemplate the selection of a family member of a deceased employee alone but adjustment of the selected candidate against a post is not confined to a vacancy arising by death alone. The implication is clear that the District Inspector of Schools at his sweet will may fill up all the vacancies in the direct recruitment quota whether of L.T. grade teachers or of clerk or in Class IV arising by death or retirement or otherwise in a minority institution by his nominees and it is incumbent upon the management to make these appointments without demur. Regulation 106 which lays down the methology of adjustment is quoted below :
^^106- e`r deZpkjh ds dqVqEc ds lnL; dh fu;qfDr ;FkklaHko mlh laLFkk esa dh tk;sxh] tgk e`r deZpkjh vius e`R;q ds le; lsokjr Fkk A ;fn ,slh laLFkk esa f'k{k.kksRrj laoxZ esa dksbZ fjfDr u gks rks mldh fu;qfDr] ftys ds fdlh vU; ekU;rk izkIr] lgk;rk izkIr laLFkk eas tgk ,slh fjfDr gks] dh tk;sxh A izfrcU/k ;g gS fd ;fn lEcfU/kr ftys ds fdlh ekU;rk izkIr] lgk;rk izkIr laLFkk esa ,slh fjfDr rRle; fo|eku u gks rks ml laLFkk esa tgk e`rd viuh e`R;q ds le; lsokjr Fkk] fu;qfDr fdlh vf/kla[;k in ds fo:) rqjUr dh tkosxh A ,sls vf/kla[; in dks bl iz;ktu ds fy, l`ftr fd;k x;k le>k tk;sxk vkSj ml rc rd tkjh j[kk tks;xk tc rd dksbZ fjfDr ml laLFkk esa ;k ftys dh fdlh vU; ekU;rk izkIr] lgk;rk izkIr laLFkk esa miyC/k u gks tk; vkSj ,slh fLFkfr esa vf/kla[; in ds in/kkjh }kjk dh x;h lsok dh x.kuk osru fu/kkZj.k vkSj lsok fu;qfDr ykHkksa ds fy, dh tk;sxh A**
6. In the ordinary course all vacancies on the post of teachers in a minority institution, whether caused by death, retirement or otherwise, are to be filled up by management committee under Section 16E(1) in accordance with the provisions of Section 16FF. The selection committee of a teacher envisaged under Regulation 105 is widely different from the selection committee constituted under Section 16FF. Section 16FF provides that the selection committee shall consist of five members to be nominated by the Committee of Management one of whom is to be the head of the institution. The choice of the management is subject only to the restriction that the candidate appointed must possess the necessary minimum qualifications prescribed. The appointment is subject, no doubt, to the approval of the District Inspector of Schools but the scope of his powers is limited to considering whether the candidate has the necessary minimum qualifications. While Section 16E read with Section 16FF applicable to regular appointment of teachers provides a virtual autonomy to a minority institution in making appointments. Regulations 105 read with Regulation 107 which relates to appointments to the family members of a deceased employee allow no power to the management except of issuing an appointment letter to the nominee of the District Inspector of Schools selected by a panel of three members on which there is no representative of the management.
7. Article 30(1) of the Constitution provides the right to the minority community to administer educational institutions of their choice. The expression 'of their choice' is the key expression in the Article. The right guaranteed under Article 30 is virtually absolute and is not subject to restriction except to the regulatory power of the State for the purpose of discipline, health, sanitation, morality, public order or maintaining efficiency in the standards of education--in Re The Kerala Education Bill, AIR 1958 SC 956. Such a regulation is not a restriction on the substance of the right for it secures the proper functioning of the institution. Nor can the right be whittled down by so-called regulative measures conceived not in the interest of the institution or of the minority community but of the public or the nation as a whole. Vide Siddhajibhai v. State of Bombay, AIR 1963 SC 540. Shri V. K. Shukla, counsel for respondent whose arguments were supported by the standing counsel relied upon certain observation in Lilly Kurian v. Lewina, 1979(2) SCC 124, para 19 and Committee of Management St. John's Inter College v. Girdhari Singh, 2001 (2) AWC 1424 (SC): AIR 2001 SC 1891, for the proposition that regulatory provisions could be made in the national interest. The observations in St. John's case (supra), are as follows :
"The rights emanated from Article 30 are the right to establish an institution and right to administer it. The right to administer engrafted under Article 30 would not however confer a right to maladminister, as was held by this Court in the case of Bihar State Madarsa Education Board v. Managing Committee, Madarsa Manafia Arabic College. AIR 1990 SC 695. Even though Article 30 does not lay down any limitation upon the right of a minority to administer its educational institutions, but that right cannot be said to be absolute as was held by this Court in the case of Ahmedabad St. Xavier's College Society v. State of Gujarat, AIR 1974 SC 1389, and further the rights must be subject to reasonable regulations as was held by this Court in All Saints College v.
Government of Andhra Pradesh.
AIR 1980 SC 1042, consistent with the national interest. Regulations, therefore, could always be made to maintain educational character and standard of institution and for that purpose to lay down qualifications or conditions of service, to ensure orderly.
efficient and sound administration and to prevent maladministration, to ensure efficiency and discipline of the institution and for several other objectivities, which would be for the benefit of the institution and which would not offend the right engrafted under Article 30. It would always be permissible to frame regulations so long as the regulations do not restrict the right of administration of the minority community but facilitate and ensure better and more effective exercise of that right for the benefit of the institution. But such a regulatory provision will cease to be regulation where power conferred upon the appropriate authority is uncanalised or unreasonable. Regulations also cannot go to the extent of annihilating the right guaranteed by Article 30(1). The Regulation made for achieving competent of teachers or maintenance of discipline in the conditions of service or providing for an appeal against the order of termination and the like would not be held to be violative of the right to administer enshrined under Article 30 of the Constitution but nonetheless if the said provisions confer an authority on a body which is canalised or unreasonable or there is no guiding principle, then the same cannot be upheld. In this view of the matter, the State could impose Regulations even upon a minority institution, which would be in consonance with Article 30(1) and such Regulation must be reasonable and must be regulative of the educational character of the institution and conducive to making the
institution an effective vehicle of education for the minority community."
8. It appears from these observations that what was regarded as national interest was broadly speaking the maintenance of efficiency and standard of education in the institution and the like. Lilly Kurian does not promote the contention of the respondent. In that case, the Supreme Court relied upon the following observation of Shah, J., in Rev. Sidhajbhai Sabhai v. State of Bombay :
"The right established by Article 30(1) is a fundamental right declared in terms absolute. Unlike the fundamental freedom guaranteed by Article 19, it is not subject to reasonable restrictions in the matter of setting up the educational institutions of their own choice. The right is intended to be effective and is not to be withheld down by so called regulative measures conceived in the interest not of the minority educational Institution, but of the public or the nation as a whole. If every order, which while maintaining the formal character of minority institution, destroys the power of administration, is held justifiable because it is in the public or national interest, though not in its interest as an educational institution, the right guaranteed by Article 30(1) will be but a 'teasing illusion', a promise of unreality."
Then again..........."Regulation so that the right to administer may be better exercised for the benefit of the institution is permissible, but the moment one goes beyond that and imposes what is in truth not a mere Regulation but an impairment of the right to administer the article comes into play and the interference cannot be justified by pleading the interest of general public the interests justifying interference can only be the interests of the minority community."
9. In order to appreciate the contention whether the impugned Regulations have been made in the national interest or for the efficiency in the standards of education, it is necessary to examine the nature of the right (as it may loosely be called) of compassionate appointment. An appointment of a dependent of an employee dying-in-harness is an exception to the normal method of recruitment. It is made to relieve the family under crisis from financial destitution. As a rule, appointment in public service should be made on merit but the provision for compassionate appointment has been held not to be discriminatory as the favourable treatment given to the dependent has a rational nexus with the object sought to be achieved vide Umesh Kumar Nagpal v. State of Haryana, 1994 JT 525. The same view was taken in Director of Education v. Pushpendra Kumar, 1998 (3) AWC 1772 (SC) : JT 1998 (4) SC 155.
10. Sri V.K. Shukla submitted that the State Government is empowered under Section 9(4) of the Intermediate Education Act to frame Regulations, that Regulations can be framed for prescribing conditions of service under Section 16G of the Act, that appointment is also a condition of service which the State Government could regulate and the proviso to Regulation 103 was repealed to bring about uniformity in the matter of conditions of service amongst all recognised aided institutions, whether run by the minority or majority community. The offer of compassionate appointment to the dependent is one of the attractions in the conditions of service, which will invite better quality of teachers. In All Bihar Christian Schools Association v. State of Bihar, 1988 (1) SCC 206, it was held that a minority Institution cannot override industrial laws and considerations of law and order, etc. Regulatory statutory measures for standard and excellence of institutions do not offend Article 30(1).
11. I have carefully considered the submissions made by the learned counsel for the parties. As to the purpose of the regulatory power, the law has been repeatedly laid down by the Apex Court that these measures are made, broadly stated, for preventing maladministration and for maintaining efficiency of standards of education in the minority institution. The consideration in making appointment on compassionate ground is not merit. In fact, these appointments, whether of teacher or ministerial staff, are exception to the rule of merit as there is no competition with candidates from the open market which these candidates have to face and only the suitability of the individual candidate is assessed. It is a favourable treatment provided to him on ground of financial destitution. Whatever may be the humanitarian ground in making these appointments, they certainly do not promote efficiency in teaching or the standard of education. The lure of appointment to his dependent in case of death is too far fetched to present any substantial attraction to a candidate. In any case, the sacrifice of merit in a compassionate appointment can hardly be offset by the expected gain in attracting better talent in direct recruitment quota on the inducement to a candidate that a compassionate appointment to his dependent is in the waiting after his death. The provisions contained in Regulations 103 to 107, whether they relate to appointment of teachers or ministerial staff, do not promote efficiency and are neither in the interest of the minority institution nor in the interest of minority community nor in the national interest. Nor can these regulations be justified on the ground, as Mr. Shukla contends, that merit is not the criteria even in regular appointment of teachers in minority institutions as the candidate's quality point marks which are relevant in appointment of teachers in other aided recognised institutions are not relevant in minority institutions as would appear from Regulation 17 of Chapter II relating to appointment in minority institution and Regulation 10 which relates to appointments in other institutions. The argument is misconceived. The Selection Committee even of a minority institution is expected to select the most suitable candidate. The free hand given to It is not to negate the rule of merit but it appears that in keeping with Article 30, fewer restrictions in the exercise of its functions have been imposed.
12. It was then submitted by Sri V.K. Shukla that appointments on compassionate ground fulfil an entirely different purpose being relief against financial distress and cannot be equated to regular appointment and their validity, therefore, cannot be judged on the test of efficiency. These appointments constitute a different class and, therefore, the distinctly different procedure provided is valid. The argument, though apparently attractive, is devoid of merit. The proviso to Section 16(2) of the U.P. Secondary Education and Selection Board Act, 1982, permits appointments of a family member of a deceased employee by Regulation framed under Section 9(4) of the Act. But for such compassionate appointments, appointments of teachers is to be made in accordance with the provisions of the Secondary Education and Selection Board's Act, 1982, on pain of being void if made in contravention. The provisions of this Act are, however, inapplicable to a minority institution by virtue of Section 30 of the Act. The proviso to Section 16(2) is, therefore, also inapplicable ; the result being that no exception to the ordinary manner of appointment of teachers provided under Section 16E read with Section 16FF of the Intermediate Education Act is contemplated for minority institutions. The managing committee is the appointment authority under Section 16E(1) and the committee to be constituted for selection of teachers is the one provided in Section 16FF consisting of the head of the institution and nominees of the management. All vacancies on the post of teacher in a minority institution, whether arising by death or retirement or otherwise, have to be filled up according to this procedure of Section 16FF. The application of Regulations 103 to 107 to a minority institution would have the consequence that the vacancies on post of L.T. grade teachers or other employee of Class III and IV can be filled up by the special procedure in the Regulations by appointment of the nominee of the District Inspector of Schools selected by the committee constituted under Regulation 105 in which the management is not represented at all. As the Regulations carve out an exception to the procedure provided under Section 16E and Section 16FF, the Regulations being subordinate must yield to the Act. These regulations are, therefore, ultra vires Section 16E and Section 16FF of the Act in the matter of appointment of teachers. In Nabi Ahmad v. Manager, Emjay High School, AIR 1999 SC 5O, the Supreme Court emphasised the importance of the freedom of the management of a minority institution to choose the head master. Para 28 of the judgment of the Apex Court is quoted below :
"28, Thus, the management's right to choose qualified person as the Headmaster of the school is well insulated by the protective cover of Article 30(1) of the Constitution and it cannot be chiselled out through any legislative act or executive rule except for fixing up the qualifications and conditions of service for the post. Any such statutory or executive fiat would be violative of the fundamental right enshrined in the aforesaid article and would hence be void."
13. In Ahmedabad St. Xavier's School v. State of Gujarat, 1974 (1) SCC 717, Khanna, J., observed :
"The selection and appointment of teachers for an educational institution is one of the essential ingredients of the right to manage an educational institution and the minorities can plainly be not denied, such right of selection and appointment without infringing Article 30."
14. Article 29(1) of the Constitution of India provides that any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same. In re Kerala Education Bill, 1958 SC 956, it was said that the purpose of Articles 29 and 30 was to conserve fundamental rights of certain sections of the community which constitute minority communities. The minority could establish the institution of its choice. In the St. Xavier's case (supra), the question arose as to whether the right of minority community to run an educational institution was confined to the purpose of conserving its culture, language and script. The Apex Court held that the right under Article 30 of the Constitution is not controlled by the limiting words of Article 29. It is open to the minority institution to provide a secular education. In Virendra Nath Gupta v. Delhi Administration and Ors., 1990(2) SCC 307, the Apex Court considered the scope of Articles 29 and 30 in the matter relating to appointment of a person on the post of principal. The Apex Court said : "While considering this question, we cannot overlook the fact that the institution is a linguistic minority institution, its object is to promote the study of Malaylam and to promote and preserve Malaylee dance, culture and art. Article 29 of the Constitution of India guarantees right of linguistic minorities having a distinct script, language and culture of their own and it also protects their right to conserve the same. Article 30 of the Constitution guarantees the right of minorities whether based on religion or language to establish and administer educational institutions of their choice. The Supreme Court has held that a linguistic minority has not only the right to establish and administer educational institutions of its choice, but in addition to that it has further constitutional right to conserve its language." script and culture. In exercising this right a linguistic minority may take steps for the purpose of promoting its language, script or culture and in that process it may prescribe additional qualification for teachers employed in its institution. The rights conferred on linguistic minority under Articles 29 and 30 cannot be taken away by any law made by the Legislature or by rule made by executive authorities."
15. It cannot be doubted that the choice in the selection of a teacher is a very vital choice for the management of a minority institution to make to promote the culture, language and script of the community. Equally, it cannot be doubted that a teacher belonging to the minority community itself will be better equipped to impart education to the children of the community to bring them up in the culture of that community. It is true that all institutions whether run by majority or minority, community must follow the curriculum and the syllabus, which is prescribed by the Board. But the approach to the subject differs from teacher to teacher especially in subjects under the Arts Group like History. This difference of approach in education on account of purpose for which the institution is established is recognised since ancient times. The aim of schools in Sparta was to develop a sound physique to build up good soldiers. The Athenian schools aimed at developing 'a cultural soul in a graceful body gymnastics for the body and music for the soul' was the emphasis. Ancient Hindu Education was based upon the Vedas. The Jesust system of education was pioneered by Ignatus of Loyala who founded the society of Jesus to combat heresy and to promote the interests of the Catholic Church. Up to this day, many of the institutions run by the minority are founded with the object of giving a moral and religious education to the students of their community. In St. Xavier's Ahmedabad College Society v. State of Gujarat (supra), the object of founding the college established by the Jesusts of Ranchi have been described. It was to give the Catholic youth a full course of moral and liberal education by imparting a thorough religious instruction and by maintaining a Catholic atmosphere in the institution.
16. The role of the teacher in imparting moral education is of great importance. The concept of morality is a changing concept. What was regarded as a valid social system and, therefore, justified by the concept of morality in ancient times may be regarded as an intolerable transgression of human rights today. Slavery was a progressive system in ancient times, when there were no sophisticated machines to substitute physical human labour. The slave who was regarded as property produced one of the most magnificent wonders of human civilisation. The pyramids of Egypt are the product of slave labour. After the slave system was replaced by a more developed system of production, society started looking down , upon slavery as obnoxious to human values. What is true about slavery is also true about the caste system. When it originated, it was progressive. Today, it is a degenerate archaic product--a slur on society.
17. To Plato, the object of education is not merely to teach useful techniques but to impress in the mind of the student the value of good. The ideal scheme of education has been laid down in the Republic. Several books of the Republic are devoted to this subject. Aristotle in his 'Polities' says that education should begin with developing moral passional virtue. The role of the teacher in modern education is to sift out the good from the past culture and discard all that is unscientific in it. It is here that approach of the teacher in guiding his students and in fashioning their mental approach to current issues, will matter. Taking away the right of the minority to select teachers would have a bearing upon its right to conserve its language, script and culture under Article 29. The minorities must, therefore, be given a free hand in the choice of the teachers to enable them to effectively exercise the rights under Article 30(1) and Article 29 of the Constitution of India.
18. The right under Article 30 to establish and administer educational institutions is a necessary concomitant to the right of the minority to conserve its language, script and culture. These rights under Article 29 can be effectively conserved through educational institutions--In re Kerala Education Bill. The State can only regulate the right of appointment to prevent mal-administration. Appointment of a family member of deceased employee as a teacher or on ministerial post does not serve the purpose of preventing mal-administration and, therefore, is beyond the scope of the regulatory powers of the State. The mere fact that these institutions are recognised or are receiving grants-in-aid cannot justify the imposition of a condition interfering with their right to make appointments guaranteed under Article 30(1) of the Constitution which gives the minority community the right to administer educational institution of their choice.
19. When the Regulations 103 to 107 were originally introduced, there was no specific provision under the Intermediate Education Act or the Regulations exempting minority institutions from their application. The result was that in case an appointment were to be thrust by the District Inspector of Schools exercising power under these Regulations upon a minority institution, the action would have offended Article 30(1) and the Regulations themselves were vulnerable being an encroachment upon minority rights under that article. It appears that the proviso exempting the minority institution was added as a clarification to the already existing legal position that such appointments as were contemplated under the scheme of the Regulations, could not be made in a minority institution. The repeal of the proviso exempting the minority institutions has revived the violation of Article 30(1), which these Regulations, unless read down as being inapplicable to minority institutions, bring about. It does not appear, as Mr. V.K. Shukla contends, that the repeal is valid as it creates a uniformity between all aided and recognised institutions and as these institutions are receiving grant from the State and have been granted recognition, they cannot complain against the uniformity of treatment. It is now well-settled that no conditions on providing grants-ln-aid or recognition can be imposed which would offend the rights guaranteed under Article 30(1) of the Constitution. The theoretical basis of the preferential treatment given to a minority has been explained in St, Xavier's case (supra), relying upon the advisory opinion of the permanent court of International Justice in the matter of Albania. The following lines of the opinion quoted in the judgment of the Apex Court are extracted below :
"There must be equality in fact as well as ostensible legal quality in the sense of the absence of discrimination in the words of the law. Equality in law precludes discrimination of any kind, whereas equality in fact may involve the necessity of different treatment in order to attain a result which establishes an equilibrium between different situations.
It is easy to imagine cases in which equality of treatment of the majority and of the minority, whose situation and requirements are different, would result in inequality, in fact ; treatment of this description would run counter to the first sentence of paragraph 1 of Article 5. The equality between members of the majority and of the minority must be an effective, genuine equality ; that is the meaning of this provision."
20. From the aforesaid discussion, the following findings are arrived at :
(1) These Regulations 103 to 107 give free hand to the District Inspector of Schools to fill up all vacancies in a minority institution open to direct recruitment on the post of L.T. grade teacher or Class IV or Class III employee, whether arising by death or otherwise to be filled up by the nominee of the District Inspector of Schools being a family member of an employee of another institution or of the minority institution itself, dying-in-harness.
(2) The selection committee constituted under Regulation 105 is not only different from that envisaged under Section 16FF but consists of no representative of the management.
(3) In the field covered by the Regulations 103 to 107, the management has no choice in appointment of teachers or other staff and is bound to make appointment of the nominee of the District Inspector of Schools.
(4) The Regulations are also ultra vires Section 16E read with Section 16FF in the matter of appointment of teachers.
(5) Regulations 103 to 107 are not aimed at preventing maladministration or for maintaining efficiency in standards of education. The appointments of teachers or Class III and Class IV employees on compassionate grounds are rather sacrifice to the rule of merit. They are not in the interest of the institution or the minority community or in the national interest.
(6) The proviso to Regulation 103 exempting minority institutions served the purpose of preventing the provisions of Regulations 103 to 107 offending Article 30(1) and Article 29.
(7) The Regulations offend Articles 30(1) and Article 29 of the Constitution of India and are outside the scope of the regulatory powers of the State and such conditions cannot be imposed on the foundation that the Institutions have obtained recognition and are under grants-in-aid.
21. It was contended by the learned counsel for the respondents that the teacher whose appointment has been recommended by the District Inspector of Schools and the candidate who has been recommended for Class IV appointment belong to the respective minority community itself and they are family members of the employee (who died in harness) in the very institution where the appointments have been recommended and as such no Interference should be made. The argument cannot be accepted. Such appointments irrespective of the fact that they are of candidates belonging to the same minority community cannot be thrust upon the management of an institution run by the minority community.
22. The question now arises as to what relief is to be granted. Two options are open. One that the provisions of Regulations 103 to 107 be read down as inapplicable to minority institutions and to quash the recommendations made by the District Inspector of Schools and the other to also strike down the notification dated 9.8.2001 impugned in this writ petition. It has already been held that if the Regulations are applied to a minority institution, they would infringe Articles 30(1) read with Article 29 and, therefore, the recommendations made by the District Inspector of Schools are liable to be quashed.
23. In paragraph 5 of the counter-affidavit of the special Secretary in Writ Petition No. 43328 of 2001, it has been stated that the intention of the State Government has not been properly brought out in the notification. Paragraph 5 is quoted below :
"That it is respectfully submitted that by virtue of the aforesaid Government notification dated 9.8.2001, State Government has no intention to enforce the provision of the Regulation Nos. 101 to 107 of Regulation framed under U.P. Intermediate Education Act, 1921 on, the minority institutions. Only intention of the State Government by virtue of the aforesaid Government notification dated 9.8.2001 is to provide employment to the dependents of the deceased employees of the minority institution in harness, in the same institutions in which deceased was employed but some how or other aforesaid intention of the State Government has not been properly clarified and properly worded in the notifications dated 9.8.2001. It is also respectfully submitted that by virtue of providing employment to the dependents of the deceased employees of minority institutions dying-in-harness on compassionate ground, does not mean that by virtue of the aforesaid notification dated 9.8.2001, right of the minority institution in regard to their management are being interfered by the State Government. It is also respectfully submitted that in pursuance of the aforesaid Intention of the Government Notification dated 9.8.2001 the employment to the dependents of the deceased employees dying-in-harness will be provided by the management of the minority institution itself. It is also respectfully submitted and clarified that provisions of the aforesaid notification are beneficial in nature and have been framed keeping in view welfare of the dependants of the employees of the minority institutions dying in harness. It is also, respectfully submitted that the State Government is taking appropriate steps to make suitable amendment in the Government notification dated 9.8.2001, which will be under the permission and interim order of this Hon'ble Court."
24. If the State Government intended to amend the notification it is not understandable why it could not do so of its own. Moreover, it is for the minority community if it so likes to make provision for such compassionate appointments in its Rules and not for the State Government to do so without offending Article 30(1).
25. Thus, it is clear that the repeal of the proviso was made without application of mind. This country which is torn by strife--the carnage in Gujarat being a burning example can ill-afford a hasty decision of the State Government without proper understanding of the implications on such a sensitive Issue of minority rights. In the Ahmedabad St. Xavier's College Society and another v. State of Gujarat and another (supra), it was said by Jaganmohan Reddy. J. :
"54. In spite of the consistent and categorical decisions which have held invalid certain provisions of the University Acts of some of the State as interfering with the fundamental rights of management of minority institutions inherent in the right to establish educational institutions of their choice under Article 30(1), the State of Gujarat has incorporated similar analogous provisions to those that have been declared Invalid by this Court. No doubt education is a State subject, but in the exercise of their right any transgression of the fundamental right guaranteed to the minorities will have its impact beyond the borders of that State and the minorities in the rest of the country will feel apprehensive of their rights being invaded in a similar manner by other States. A kind of instability in the body politic will be created by action of a State which will be construed as a deliberate attempt to transgress the rights of the minorities where similar earlier attempts were successfully challenged and the offending provisions held invalid."
26. As the notification substituting the new Regulation 103 only repeals the proviso and otherwise re-enacts the old Regulation entirely has the effect of creating confusion about the true legal position on the issue of minority rights, it is necessary to strike down it and not merely to read down the provisions of Regulations 103 to 107 as inapplicable to minority institutions. It does not require emphasis that subordinate legislation by the notification on an issue so sensitive as minority rights without application of mind and which does not, according to the admission of the State itself bring out the true intention casts doubt upon the bona fides of the Government itself upon the minority question and cannot be tolerated to exist.
27. In the result, both the writ petitions are allowed. The Notification No. 5834/15-7-2 (1)/90, dated 9th August, 2001 (Annexure-1) and also the order of the District Inspector of Schools, Ghazipur dated 27.12.2001 in Writ Petition No. 4308 of 2002 are quashed and the order dated 8.11.2001 (Annexure-4) passed by the District Inspector of Schools. Muzaffarnagar and the notification dated 9.8.2001 (Annexure-5) in Civil Misc. Writ Petition No. 43328 of 2001 are quashed.
In the last Sri V.K. Shukla and Sri V.K. Srivastava learned counsel for the teacher and Class IV employee in the respective writ petitions submitted that in view of the fact that there was an order appointing them to the minority institution, they should have been adjusted elsewhere by the District Inspector of Schools. The learned standing counsel also has no objection to this prayer. The question is not directly involved in this petition. If they make an application the District Inspector of Schools may consider their case in accordance with law.