Allahabad High Court
Committee Of Management, Shri Kund Kund ... vs State Of U.P. Through Secretary ... on 4 April, 2006
Author: A.P. Sahi
Bench: A.P. Sahi
JUDGMENT A.P. Sahi, J.
1. The petitioner - Committee of Management, which manages an Intermediate College recognized under the provisions of the U.P. Intermediate Education Act, 1921, has assailed the order of the District Inspector of Schools dated 16.2.2006 (Annexure-4 to the writ petition), whereby the District Inspector of Schools had held that the Respondent No. 4, being the senior most Teacher entitled for being promoted, deserves to be extended the said benefit keeping in view the provisions of the Regulations which provide for promotion under the 50% promotion quota applicable to the controversy.
2. The resistance to the impugned order by the Committee of Management is primarily on the ground that the institution is a declared and acknowledged minority institution, established and administered by the Jain Community and, therefore, is entitled to all the protections guaranteed under Article 30 of the Constitution of India. The District Inspector of Schools is stated to have, therefore, no jurisdiction to issue the directions to the Committee of Management for promoting the Respondent No. 4 against the choice of the Committee of Management to promote Sri Neeraj Kumar Jain as a Lecturer in the institution. The other issues on merits, which have been advanced, may deserve consideration after the aforesaid primary questions raised by the petitioner is answered.
3. Sri R.B. Singhal has been heard on behalf of the petitioner and Sri Ashok Khare, learned senior counsel for the Respondent No. 4 and learned Standing Counsel for the Respondent Nos. 1, 2 and 3.
4. A short-counter-affidavit has been filed on behalf of the Respondent No. 4 which has been sworn by the Respondent No. 4 himself.
5. A plethora of authorities have been cited by the learned Counsel for the parties which shall be referred to hereinafter on the aforesaid principal issue of the protection claimed by the petitioner -Committee.
6. Before delving into the said issue a preliminary point deserves to be addressed to at the initial stage itself. Sri Khare has urged that the order of the District Inspector of Schools has been passed as a consequence of a mandamus issued by this Court on 6.10.2005 on a petition filed by his client which judgment is Annexure-2 to the writ petition. Sri Khare contends that in this view of the matter it is not open to the Committee of Management to resist the impugned order on the ground of lack of jurisdiction. A perusal of the order dated 6.10.2005 would clearly indicate that a mandamus was issued for considering the claim of the Respondent - Sudhir Kumar Pandey in view of the fact that the proposal of promotion stated to be in favour of Respondent No. 4 has not received any attention by the District Inspector of Schools. The mandamus had been issued without putting the petitioner - Committee of Management to notice and the petition appears to have been disposed of with a direction to the Inspector to decide the matter only after putting the concerned parties to notice. Thus, the Committee was not represented before this Court and the issue pertaining to the claim of the Management seeking protection under Article 30 of the Constitution of India was neither raised nor decided by this Court. From a perusal of the impugned order itself it is evident that the petitioner - Committee of management resisted the jurisdiction of the District Inspector of Schools on the clear ground that the District Inspector of Schools had no right to interfere with the Management and affairs of the petitioner - Committee including the dispute that had been raised before him.
7. It is by now well settled that the Court cannot confer a jurisdiction on an authority to decide a claim which power is not possessed by such an authority. The very authority of the District Inspector of Schools to issue such directions has been questioned which was not a issue before this Court in the previous writ petition. Even though it is unnecessary to burden this judgment with the authorities on this issue yet for the sake of guidance reference may be had to the Division Bench judgment of this Court in the case of Udit Narain Kshetriya High School, Padrauna, Deoria through its Secy. Sri Ram Pratap Narain Singh and Ors. v. District Magistrate, Deoria reported in 1993 All. CJ 1293. Thus, there was no order of this Court which could have been construed to mean to confer a jurisdiction on the District Inspector of Schools which he did not possess. The District Inspector of Schools had been apprised of this Objection by the petitioner - Committee of Management which has been taken note of by him but the same has not been answered and the District Inspector of Schools has proceeded to decide the matter simply on the command of this Court issued earlier on 6.10.2005.
8. The said issue, therefore, goes to the root of the matter and the submissions have been advanced by the learned Counsel for the parties keeping in view the fact as to whether the petitioner - Committee of Management is right in seeking the protection of Article 30 of the Constitution of India. This case is, therefore, yet another case which witnesses the on going conflict of interest arising out of claims of protection or otherwise under Article 30 of the Constitution of India.
9. Sri R.B. Singhal, learned Counsel for the petitioner, has advanced his submissions on the strength of several decisions to contend that the issue relating to the promotion of a Teacher from one grade to another has already been decided by this Court insofar as a minority institution is concerned in favour of the Management clearly holding that the provisions pertaining to claim of promotion under the Regulations do not apply to the minority institutions. He contends that in this view of the matter, the District Inspector of Schools was absolutely bereft of any authority to intervene in the matter and, therefore, the order impugned is liable to be struck down on this ground alone. To support his submissions, the first decision relied on by Sri Singhal is in the case of St. Josef Higher Secondary Schools v. R.S. Sharma reported in 1976 AWC 143. The said decision was rendered in a referred matter as to whether Section 16-G (3)(a) of the U.P. Intermediate Education Act, 1921, violated Article 30 of the Constitution or not. The said provision clearly relates to the appointment and dispensation of the services of the Head of the institution and Teachers which require prior approval of the Inspector in writing. The Division Bench, after quoting paragraphs from the decision of the Apex Court in The Ahmedabad St. Saviers College Society and Anr. etc. v. State of Gujarat and Anr. , and after considering the impact of another decision of the Apex Court in The Gandhi Faiz-e-am College, Shahjahanpur v. University of Agra and Ors. , answered the reference in favour of the Management holding that the provisions of Section 16-G-(3)(A) referred to herein above was violative of Article 30 of the Constitution of India. Consequently, the Inspector would have no right to exercise any powers of prior approval as contemplated in the aforesaid provision. Sri Singhal contends that, thus, the District Inspector of Schools has no power to issue any such directions for the engagement of any Teacher in the institution by way of promotion and further the Inspector does not have any right to either approve or disapprove any such proposal on his own under the powers in the U.P. Intermediate Education Act.
10. The next decision relied upon by Sri Singhal which is directly in issue is the Division Bench decision in the case of N.B. Lal v. District Inspector of Schools and Ors. Writ Petition No. 9776 of 1984, decided on 31.8.1984. The relevant part of the said judgment is quoted herein below as the same cannot be stated by me in a more precise or better way than it has already been expressed therein:
Learned Counsel for the petitioner submitted that as the procedure for selection of teachers even of 16 FF of the Intermediate Education Act, it implies that in regard to the minority institutions also the quota of 40 per cent reserved for promotees contemplated under Regulation-5 aforesaid shall be maintained.
We do not agree with this contention. To a minority institution which is protected under Article 30 of the Constitution, such a restriction can not be read by implication. In our opinion, the mere fact that the procedure prescribed for selection is the same or similar to that applicable to other institutions cannot automatically bring in Regulation 5 of Chapter II. This provision not having been specifically applied to minority institutions the petitioner cannot base any claim thereon.
Learned Counsel for the petitioner next contended that the right to promotion under Regulation 5 against the 40 per cent quota was a condition of the petitioner's service and, therefore, Regulation 5 should be deemed to be applicable to minority institutions also. As Regulation 5 does not apply to a minority institution, it cannot be treated as forming part of the petitioner's conditions of service. A minority institution enjoys complete autonomy in respect of selections and appointments of teachers except to the extent specially restricted by the Intermediate Education Act. In the scheme of that Act, we find nothing which may have taken away the right of a minority institution to fill in the posts of teachers by direct recruitment regardless of the restrictions imposed as regards the quota of promotees contemplated in Regulation 5.
11. That aforesaid Division Bench judgment has been later on followed by 2 learned single Judges of this Court in the case of Ram Narain Lal Gupta v. Committee of Management and Ors. Writ petition No. 21301 of 1990, decided on 11.5.1993. The Court clearly held that the provisions of Regulation 5 of Chapter II of Regulations framed under the U.P. Intermediate Education Act cannot be enforced against the wishes of the minority, claiming protection under Article 30 of the Constitution of India. The same view has been expressed in the case of M.S. Karan v. Committee of Management and Ors. reported in (1997) 1 UPLBEC 491.
12. Apart from the aforesaid judgments, which are directly in issue, Sri Singhal in order to buttress the submissions advanced in support of the protection guaranteed under Article 30 of the Constitution to the petitioner - Committee of Management has cited the following decisions:
(1) N. Ammad v. Manager, Emjay High School and Ors. ;
(2) Board of Secondary Education v. Joint Director of Public Instruction ;
(3) Yunus Ali Sha v. Mohd. Abdul Kalam ;
(4) Committee of Management v. R.K. Shukla 1999 (4) AWC 3240.
(5) C/M St. John Inter College v. Girdhari Singh and Ors. ;
(6) Udai Veer Singh v. District Inspector of Schools and Ors. 2001 (1) AWC 494;
(7) Committee of Management v. District Inspector of Schools and Ors. 2003 (1) ESC 28;
(8) T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. ;
(9) Bramho Samaj v. State of West Bengal and Ors. ;
(10) Committee of Management v. District Inspector of Schools, Deoria Writ Petition No. 49195 of 2003, decided on 27.1.2005;
(11) Matloob Husain v. State of U.P. and Ors. Writ Petition No. 10137 of 2006, decided on 23.2.2006; and (12) Interim Order dated 21.3.2006 in Writ Petition No. 14735 of 2006, Rajendra Singh v. State of U.P. and Ors.
13. Sri Ashok Khare, learned Counsel for the Respondent No. 4, on the other hand, has urged that the regulation which makes a provision for claim of promotion of an employee of a minority institution does not in any way offend the fundamental rights of the Petitioner -Committee of Management guaranteed under Article 30 of the Constitution of India inasmuch as the institution has been granted recognition under the 1921 Act and once the recognition has been granted, the institution binds itself with the terms and conditions and that the Petitioner - Committee has been unable to demonstrate that its right to manage the institution is in any way affected by accepting the claim of the Respondent No. 4. He further contends that the right to seek promotion is a Statutory right and the institution cannot deny the same as it is admittedly receiving the grant-in-aid from the State Government. He further contends that the promotion by itself may not be a fundamental right but the Apex Court has recognized the right to be considered for promotion a fundamental right. It is, therefore, urged that if the consideration by the Committee of Management is being arbitrarily avoided then in that event the District Inspector of Schools can regulate the activities of the Management to the aforesaid extent by issuing necessary directions to comply with the provisions of promotion. Such an action, according to him, does not amount to any violation of the rights guaranteed under Article 30 of the Constitution of India.
14. Sri Khare has relied on the following decisions to support his submissions to the effect that the consideration of the claim of promotion is a regulatory measure which is necessary to maintain the educational standard and the efficiency of the institution which is the ultimate constitutional goal to be achieved by extending the benefit of protection under Article 30 of the Constitution of India:
(1) Frank Anthony Public School Employees' Association v. Union of India and Ors. ;
(2) Mrs. Y. Thaclamma v. Union of India and Ors. AIR 1987 SC 1250;
(3) Christian Medical College Hospital Employee's Union and Anr. v. State of Tamilnadu ;
(4) All Bihar Christian Schools Association and Anr. v. State of Bihar and Ors. ;
(5) St. Terisa High School's case 1997 (2) Maharastra Law Journal 713; and (6) T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. ;
15. On the strength of the aforesaid decision Sri Khare contends that the Petitioner - Committee cannot under the garb of protection under Article 30 of the Constitution proceed to act arbitrarily by resisting the claim of the petitioner for promotion to which he is otherwise entitled in law.
16. Sri Singhal in the Rejoinder-Affidavit has further elaborated his argument by referring to the provisions of Section 16FF of the U.P. Intermediate Education Act, 1921 and has urged that the said provision is only meant to regulate in a limited way the approval or disapproval of an appointment to be made by way of direct recruitment. He contends that the said section does not govern a case of promotion and in the absence of any specific provision having been provided for promotions in minority institutions, the Petitioner -Committee cannot be compelled to abide by the Rules of promotion as contained in Regulation 5 of Chapter II of the Regulations framed under the Act. He further submits that even otherwise assuming that the provisions of Section 16-FF provide for such guidelines, then in that event the only limited scope available to the authorities to examine the resolution of the Committee of Management, is to the extent of the qualification and otherwise of the eligibility of a candidate. It is urged on behalf of the petitioner that the right to choose a teacher for either being promoted or not being promoted falls exclusively within the powers of the Committee of Management and which power is neither regulated nor can be regulated by the authorities as that would amount to a clear inroad into the fundamental rights guaranteed under Article 30 of the Constitution. He further contends that even this right of choice as to whether which subject requires a particular teacher in the higher grade is also a matter of choice of the Committee of Management of a minority institution. It is contended that this power of choice cannot be interfered with by the District Inspector of Schools in the manner in which it has been done in the present case.
17. Learned Standing Counsel Sri K.R. Singh, on the other hand, contends that the State has the power to regulate the activities even of a minority institution as it is the State exchequer which is shouldering the burden of the payment of salary to the employees of aided institutions. In support of his submissions, he has also relied on the answer given by the Apex Court to question No. 5(c) in T.M.A. Pai's case. He has adopted the arguments advanced by Sri Khare to the aforesaid extent who has urged that the provision extending the benefit of promotion is a reasonable provision and it does not in any way amount to restricting or prohibiting a minority institution from administering itself.
18. Sri Khare, learned Counsel for the Respondent No. 4, has attempted to distinguish the applicability of the later decisions of the Apex Court namely that of N. Ahmad (supra) and Yunus Ali Sha (supra) on the ground that these decisions related to the Head of an institution where the Apex Court has ruled that the impact which a Head of institution creates by his own personality necessitates the selection on such a post to be of the choice of the minority community. He contends that the instant case is not a case of Head of the institution and is simply a case of promotion in the Lecturers grade which in no way concerns any such apprehension expressed by the Petitioner - Committee. He has relied on the short-counter-affidavit filed on behalf of the Respondent No. 4 to demonstrate that the Committee was malafidely trying to avoid the promotion of the Respondent as Lecturer in Chemistry even though his services were required to teach the higher classes of the institution. This submission has been replied by Sri Singhal on merits by stating that the said Affidavit is an after thought and that no such contention was raised before the District Inspector of Schools nor did the District Inspector of Schools find it necessary to put the Petitioner - Committee to notice about any such material relied upon by the respondent No. 4 before this Court so as to enable the petitioner - Committee to meet the aforesaid argument. He further contends that the impugned order is in violation of principles of natural justice on that score and he further points out that the Respondent No. 4 has failed to demonstrate as to how his non-promotion would in any way affect the educational standards of the institution as, according to the petitioner - Committee, the person who is presently officiating as Principal is already taking classes of Chemistry as a result whereof there is no disadvantage being experienced by the students of Chemistry in the institution.
19. I have considered all the aforesaid rival submissions as also the decisions-relied upon by the learned Counsel for the contending parties. It is evident from the facts brought on record that the District Inspector of schools had been commanded by this Court to decide the claim of the Respondent No. 4. While issuing the mandamus, this Court had nowhere prevented or prohibited the District Inspector of Schools from deciding his own jurisdiction to proceed with the matter on an Objection being taken by the Committee of Management seeking protection of their rights under Article 30 of the Constitution of India. The District Inspector of Schools, therefore, ought to have addressed himself to this issue is before deciding the claim on merits of promotion as claimed by the Respondent No. 4. As already noticed herein above, in Udit Narain Kshetriya High School case (supra), there is no authority with this Court to create a jurisdiction which otherwise an authority does not possess. In view of the findings which are being recorded hereinafter, it would be apparent that the District Inspector of Schools could not have proceeded to issue the directions as in the considered opinion of this Court, the District Inspector of Schools does not enjoy the authority to the said extent.
20. The core issue is as to whether the institution can be compelled to abide by the provisions of promotion as contained in Regulation 5 of Chapter II of the Regulations framed under the U.P. Intermediate Education Act. The said question need not detain this Court any longer as the said issue has been settled by this Court in the case of N.B. Lal, R.N. Gupta and M.S. Karan (supra). The aforesaid authorities relied upon by the learned Counsel for the petitioner are directly on the issue and have clearly held that the Committee of Management of a minority institution cannot be compelled to comply with the provisions which have not been applied to minority institutions either expressly or by necessary implication. The said decisions have held the field for a fairly long time and have not been reversed or diluted in any form so far. At least no such material or decision has been brought before this Court which may necessitate a reappraisal of the issue. In view of this, there is no impediment in holding that the Petitioner - Committee enjoys an immunity in this respect and is clearly insulated in view of the pronouncement of this Court referred to herein above.
21. The decisions of the Apex Court, in my opinion, in the case of N. Ahmad, Board of Education and Yunus AH Sha (supra) clearly held that the educational authority has no control over the actual management of the institution "including hiring or termination of services of Teachers". The aforesaid quoted phrase as contained in paragraph 6 of Unus Ali Sha's case, in my opinion, is widely worded enough so as to include appointment by way of promotion as well. The distinction sought to be made by Sri Khare that the said case was in respect of the Head of the institution and, therefore, would not apply, cannot be accepted as the said case was also in respect of the termination of an Assistant Teacher as well. Even otherwise on principles when the right of a minority has been recognized to the aforesaid extent then, in my opinion, no power can be read into the hands of the District Inspector of Schools under the Regulations of the U.P. Intermediate Education Act, 1921, to compel the Committee to promote the Respondent No. 4 against the choice of the Management. The right of a management to administer an institution has been held in the aforesaid decisions to include the right of appointment as well. Such a right has been held to be absolute and cannot be taken away from the Management. The only limitation which was discussed was in the case of N. Ammad (supra), where in para 15 the Apex Court observed that "but the absolute character of the right will not preclude making of regulations in the true interests of efficiency or instruction, discipline, health, sanitation, morality, public order and the like". The Apex Court in para 17 of the said decision observed that the legal position remains unchanged even now. The aforesaid view finds endorsed in T.M.A. Pai's case where while answering question No. 5-C, the Apex Court has observed that Regulations can be framed for the governance of aided minority institutions. The Apex Court has further went on to indicate that for the redressal of grievances of the service conditions of the employees of minority institutions, a tribunal should be created and till such tribunal is not created, provisions should be made for the disposal of such grievances by an officer of the rank of a District Judge. So far as the State of U.P. is concerned, no such tribunal has been created nor any such instruction has been issued by the State Government.
22. Sri Khare, learned Counsel for the respondent No. 4, relying on the same decision, has urged that the Regulations in this regard are already framed and nothing has been pointed out by the learned Counsel for the petitioner which may indicate the non-applicability of the Regulations pertaining to promotion are not applicable by implication. The argument, therefore, on behalf of the Respondent No. 4 to the said extent, cannot be accepted.
23. The principal submission of Sri Khare was that in view of the decision in the case of Frank Anthony Public School Employees' Association's case (supra), the provision for promotion is a condition of service which aims at ensuring security, contentment and decent living standard of Teachers. He has relied on paragraph Nos. 16 to 18 of the said decision to advance his submissions. A perusal of the decision referred to herein above would indicate that a minority educational institution was held not to possess any such powers which aims at oppressing or exploiting its employees. The issue therein was the suspension of an employee to be approved by the competent authority. The decision upheld the applicability of the provisions and issued directions in para 21 of the said judgment.
24. In the instant case, this Court in the case of N.B. Lal, after considering the provisions of promotion, has clearly held that they do not apply at all either expressly or by implication. Sri Singhal has rightly pointed out that in the case of Frank Anthony Public School Employees' Association, the Court was called upon to consider the applicability of a provision of Delhi School Education Act which was held to be applicable even to employees of aminority institution whereas there are no such express provisions indicated in the U.P. Intermediate Education Act which may compel the Committee of Management to abide by the provisions of promotion. Sri Singhal has rightly pointed out that legislature was conscious of the rights of the minority seeking protection and, therefore, in its wisdom only made a provision as contained in Section 16-FF of the U.P. Intermediate Education Act, 1921. The said provision clearly does not indicate its applicability to the extent of compelling the Committee to make appointments by way of promotion. In these circumstances, the case of Frank Anthony Public School Employees' Association would not come to the aid of the Respondent No. 4. The Apex Court in T.M.A. Pai's case, therefore, had issued clear indications of providing for regulations expressly and for the creation of Tribunals to regulate such matters. The other decisions relied upon by Sri Khare are, therefore, distinguishable for the aforesaid reasons.
25. The decision which now deserves to be taken notice of is in the case of Committee of Management, Mohd. Husain Inter College v. District Inspector of Schools, Deoria, and Ors. Writ Petition No. 49195 of 2003, decided on 27.1.2005. This case was in respect of class III employee of an intermediate College who had been dismissed from service and whose dismissal had been disapproved by the District Inspector of Schools. A learned single Judge of this Court has held that the District Inspector of Schools had no authority to either approve or disapprove the dismissal but at the same time the writ petition was entertained on the ground that as there is no Tribunal or adjudicatory forum available and as the action of the Committee of Management in dismissing the services of the employee concerned were in complete violation of principles of natural justice, therefore, this Court quashed the order of dismissal with a direction to the Committee of Management to proceed to decide the matter in accordance with the Regulations which provide for a fair hearing to the concerned employee. The said decision, therefore, found it expedient to entertain a writ petition in the matter of disciplinary control by the management of a minority institution after having found that the proceedings were in violation of the principles of natural justice as contained in the Regulations framed under the U.P. Intermediate Education Act. The essence of the decision, therefore, is that once an order is found to be in violation of Article 14 of the Constitution of India, which has been consistently held to include natural justice within its fold, then in that event the Court can interfere and issue necessary directions as the institution is supposed to be governed by such provisions even if it is a minority institution as it is receiving grant-in-aid from the State funds. The said decision, however, is only to the extent of recognizing the right of an employee to be governed by a fair procedure. The decision nowhere compels the Committee of Management to take a particular decision nor does it enunciate that the decision of a minority to hire or disengage an employee can be substituted by any adjudicatory forum.
26. The last case which may have a bearing on the issue is the case of Committee of Management, M.A.H. Inter College v. District Inspector of Schools, reported in 2002 (3) AWC 2221. The issue involved in the said decision was as to whether an Intermediate College recognized as a minority institution could be compelled to make appointments on compassionate basis under Regulations 103 to 107 of Chapter III of the U.P. Intermediate Education Act. Previously, the said regulations extended the benefit of compassionate appointment against class III & IV posts only. However, under an amendment brought in the year 1995, the post of a trained graduate teacher was also made available for compassionate appointment and the same was also incorporated as an exception to the mode of recruitment in Section 16 of the U.P. Act No. 5 of 1982. However, it is to be remembered that U.P. Act No. 5 of 1982 is not applicable in the case of minority institutions. The aforesaid decision very elaborately traces out the entire legislative background of such appointments and after discussing the Apex Court decisions including the then latest decision of the Apex Court in the case of N. Ammad (supra), clearly held that the said regulations are violative of Article 30 of the Constitution of India in so far as minority institutions are concerned and it was held that the State Government acted in an insensitive manner by issuing the Notifications making applicable the said provisions on a minority institution and were, therefore, quashed. The said judgment has systematically and logically enunciated the position of law by following the Apex Court decision referred to herein above.
27. Sri Ashok Khare, however, has pointed out that the aforesaid decision was disagreed with in its reasoning in a Division Bench judgment in the case of St. Andrews College v. State of U.P. and Ors. reported in 2003 ACJ 1647. The Division Bench went on to hold that regulations can be framed for the welfare of students and teachers in the light of the Constitution Bench judgment in the case of T.M.A. Pai Foundation case as contained in para 137 of the said judgment. It was further held that a regulation framed for the welfare of a Teacher or employee of a minority institution does not in any way impede the right of a minority institution guaranteed under Article 30 of the Constitution of India. A perusal of the said Division Bench judgment indicates that the same was with regard to a Notification/Government Order issued in respect of Degree Colleges and the institution in question was affiliated to Gorakhpur University. The case was not pertaining to an Intermediate College which had its own regulations and which had been struck down by the learned single Judge. Thus, the two cases were clearly different on facts. The Apex Court in the case of T.M.A. Pai Foundation has nowhere over ruled the ratio of the decisions relied upon by the learned Counsel for the petitioner to the extent so as to empower the State to interfere with the right of making appointment of the management of a minority institution. Paragraph No. 137 of the Constitution Bench judgment, nowhere holds that the right of the minority to make appointments through the Management of the minority institution can be interfered with. The compulsion of making an appointment against the choice of a minority institution has nowhere been approved by the Constitution Bench judgment. Apart from this, the decision in St. Andrew's case (supra) in para 20 of the judgment, has held that the case of the Apex Court in N. Ammad v. Manager, Emjay High School, had got nothing to do with compassionate appointment against a class III post. It was on that distinction that the said case was found to be inapplicable to the controversy. In the instant case, the dispute is with regard to appointment of a teacher and not of a class III post and, as such, the said Division Bench cannot govern the issues raised in the present case. It has been, time and again, held by the Apex Court that the ratio of a decision is not what can be perceived of it but is what it actually decides. The Division Bench decision of St. Andrew's case, therefore, is not a decision which lays down the ratio in respect of the appointment of a teacher by a minority institution. The said decision, therefore, is not applicable to this controversy and, therefore, the argument advanced by Sri Khare has to be rejected.
28. In view of the conclusions and the findings arrived at herein above, the order impugned dated 16.2.2006 is beyond the jurisdiction of the District Inspector of Schools and is unsustainable and is, therefore, quashed. The writ petition is, accordingly, allowed with no orders as to costs.